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This collection of Key Documents of Liberty documents the struggle to create free institutions from the ancient world to the modern. It is part of a series of Reading Lists which will include:
The documents were taken from the following works:
Additional readings and documents can be found in The Founders’ Constitution, edited by Philip B. Kurland and Ralph Lerner (Indianapolis: Liberty Fund, 2001), 5 vols.
Lance Banning, Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004). Chapter: alexander hamilton The First Report on Public Credit 14 January 1790
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Already thinking far beyond the reestablishment of public credit, Hamilton took pains in the report to counter alternative suggestions that were already circulating in the country. He particularly objected to the ideas of funding the debt at its depreciated value, discriminating between original and current holders of the notes, or forgoing an assumption of the debts of the states.
… While the observance of that good faith which is the basis of public credit is recommended by the strongest inducements of political expediency, it is enforced by considerations of still greater authority. There are arguments for it which rest on the immutable principles of moral obligation. And in proportion as the mind is disposed to contemplate, in the order of Providence, an intimate connection between public virtue and public happiness, will be its repugnancy to a violation of those principles.
This reflection derives additional strength from the nature of the debt of the United States. It was the price of liberty. The faith of America has been repeatedly pledged for it, and with solemnities that give peculiar force to the obligation. There is indeed reason to regret that it has not hitherto been kept; that the necessities of the war, conspiring with inexperience in the subjects of finance, produced direct infractions; and that the subsequent period has been a continued scene of negative violation, or non-compliance. But a diminution of this regret arises from the reflection that the last seven years have exhibited an earnest and uniform effort, on the part of the government of the union, to retrieve the national credit, by doing justice to the creditors of the nation; and that the embarrassments of a defective constitution, which defeated this laudable effort, have ceased… .
It cannot but merit particular attention that among ourselves the most enlightened friends of good government are those whose expectations are the highest.
To justify and preserve their confidence; to promote the increasing respectability of the American name; to answer the calls of justice; to restore landed property to its due value; to furnish new resources both to agriculture and commerce; to cement more closely the union of the states; to add to their security against foreign attack; to establish public order on the basis of an upright and liberal policy. These are the great and invaluable ends to be secured by a proper and adequate provision, at the present period, for the support of public credit.
To this provision we are invited, not only by the general considerations which have been noticed, but by others of a more particular nature. It will procure to every class of the community some important advantages and remove some no less important disadvantages.
The advantage to the public creditors from the increased value of that part of their property which constitutes the public debt needs no explanation.
But there is a consequence of this, less obvious, though not less true, in which every other citizen is interested. It is a well known fact that in countries in which the national debt is properly funded and an object of established confidence, it answers most of the purposes of money. Transfers of stock or public debt are there equivalent to payments in specie; or in other words, stock, in the principal transactions of business, passes current as specie. The same thing would in all probability happen here, under the like circumstances.
The benefits of this are various and obvious.
First. Trade is extended by it; because there is a larger capital to carry it on, and the merchant can at the same time afford to trade for smaller profits as his stock, which, when unemployed, brings him in an interest from the government, serves him also as money, when he has a call for it in his commercial operations.
Secondly. Agriculture and manufactures are also promoted by it: For the like reason, that more capital can be commanded to be employed in both; and because the merchant, whose enterprize in foreign trade gives to them activity and extension, has greater means for enterprize.
Thirdly. The interest of money will be lowered by it, for this is always in a ratio to the quantity of money and to the quickness of circulation. This circumstance will enable both the public and individuals to borrow on easier and cheaper terms.
And from the combination of these effects, additional aids will be furnished to labour, to industry, and to arts of every kind.
But these good effects of a public debt are only to be looked for when, by being well funded, it has acquired an adequate and stable value. Till then, it has rather a contrary tendency. The fluctuation and insecurity incident to it in an unfunded state render it a mere commodity, and a precarious one. As such, being only an object of occasional and particular speculation, all the money applied to it is so much diverted from the more useful channels of circulation, for which the thing itself affords no substitute: So that, in fact, one serious inconvenience of an unfunded debt is that it contributes to the scarcity of money.
This distinction, which has been little if at all attended to, is of the greatest moment. It involves a question immediately interesting to every part of the community; which is no other than this —Whether the public debt, by a provision for it on true principles, shall be rendered a substitute for money; or whether, by being left as it is, or by being provided for in such a manner as will wound those principles and destroy confidence, it shall be suffered to continue, as it is, a pernicious drain of our cash from the channels of productive industry.
The effect which the funding of the public debt, on right principles, would have upon landed property, is one of the circumstances attending such an arrangement which has been least adverted to, though it deserves the most particular attention. The present depreciated state of that species of property is a serious calamity. The value of cultivated lands, in most of the states, has fallen since the revolution from 25 to 50 per cent. In those farthest south, the decrease is still more considerable. Indeed, if the representations continually received from that quarter may be credited, lands there will command no price which may not be deemed an almost total sacrifice.
This decrease in the value of lands ought, in a great measure, to be attributed to the scarcity of money. Consequently, whatever produces an augmentation of the monied capital of the country must have a proportional effect in raising that value. The beneficial tendency of a funded debt, in this respect, has been manifested by the most decisive experience in Great-Britain.
The proprietors of lands would not only feel the benefit of this increase in the value of their property, and of a more prompt and better sale when they had occasion to sell; but the necessity of selling would be, itself, greatly diminished. As the same cause would contribute to the facility of loans, there is reason to believe that such of them as are indebted would be able, through that resource, to satisfy their more urgent creditors.
It ought not however to be expected that the advantages described as likely to result from funding the public debt would be instantaneous. It might require some time to bring the value of stock to its natural level, and to attach to it that fixed confidence which is necessary to its quality as money. Yet the late rapid rise of the public securities encourages an expectation that the progress of stock to the desirable point will be much more expeditious than could have been foreseen. And as in the mean time it will be increasing in value, there is room to conclude that it will, from the outset, answer many of the purposes in contemplation. Particularly it seems to be probable that from creditors who are not themselves necessitous it will early meet with a ready reception in payment of debts, at its current price.
Having now taken a concise view of the inducements to a proper provision for the public debt, the next enquiry which presents itself is, what ought to be the nature of such a provision? This requires some preliminary discussions.
It is agreed on all hands that that part of the debt which has been contracted abroad, and is denominated the foreign debt, ought to be provided for according to the precise terms of the contracts relating to it. The discussions which can arise, therefore, will have reference essentially to the domestic part of it, or to that which has been contracted at home. It is to be regretted that there is not the same unanimity of sentiment on this part as on the other.
The Secretary has too much deference for the opinions of every part of the community not to have observed one which has, more than once, made its appearance in the public prints, and which is occasionally to be met with in conversation. It involves this question, whether a discrimination ought not to be made between original holders of the public securities and present possessors by purchase. Those who advocate a discrimination are for making a full provision for the securities of the former, at their nominal value, but contend that the latter ought to receive no more than the cost to them and the interest: And the idea is sometimes suggested of making good the difference to the primitive possessor.
In favor of this scheme, it is alledged that it would be unreasonable to pay twenty shillings in the pound to one who had not given more for it than three or four. And it is added, that it would be hard to aggravate the misfortune of the first owner, who, probably through necessity, parted with his property at so great a loss, by obliging him to contribute to the profit of the person who had speculated on his distresses.
The Secretary, after the most mature reflection on the force of this argument, is induced to reject the doctrine it contains, as equally unjust and impolitic, as highly injurious even to the original holders of public securities; as ruinous to public credit.
It is inconsistent with justice, because in the first place, it is a breach of contract; in violation of the rights of a fair purchaser.
The nature of the contract in its origin is that the public will pay the sum expressed in the security to the first holder, or his assignee. The intent, in making the security assignable, is that the proprietor may be able to make use of his property by selling it for as much as it may be worth in the market, and that the buyer may be safe in the purchase.
Every buyer therefore stands exactly in the place of the seller, has the same right with him to the identical sum expressed in the security, and having acquired that right, by fair purchase and in conformity to the original agreement and intention of the government, his claim cannot be disputed, without manifest injustice.
That he is to be considered as a fair purchaser results from this: Whatever necessity the seller may have been under was occasioned by the government, in not making a proper provision for its debts. The buyer had no agency in it, and therefore ought not to suffer. He is not even chargeable with having taken an undue advantage. He paid what the commodity was worth in the market, and took the risks of reimbursement upon himself. He of course gave a fair equivalent, and ought to reap the benefit of his hazard; a hazard which was far from inconsiderable and which, perhaps, turned on little less than a revolution in government.
That the case of those who parted with their securities from necessity is a hard one, cannot be denied. But whatever complaint of injury or claim of redress they may have respects the government solely. They have not only nothing to object to the persons who relieved their necessities, by giving them the current price of their property, but they are even under an implied condition to contribute to the reimbursement of those persons. They knew that by the terms of the contract with themselves, the public were bound to pay to those to whom they should convey their title the sums stipulated to be paid to them; and, that as citizens of the United States, they were to bear their proportion of the contribution for that purpose. This, by the act of assignment, they tacitly engage to do; and if they had an option, they could not, with integrity or good faith, refuse to do it, without the consent of those to whom they sold.
But though many of the original holders sold from necessity, it does not follow that this was the case with all of them. It may well be supposed that some of them did it either through want of confidence in an eventual provision or from the allurements of some profitable speculation. How shall these different classes be discriminated from each other? How shall it be ascertained, in any case, that the money which the original holder obtained for his security was not more beneficial to him than if he had held it to the present time, to avail himself of the provision which shall be made? How shall it be known whether, if the purchaser had employed his money in some other way, he would not be in a better situation than by having applied it in the purchase of securities, though he should now receive their full amount? And if neither of these things can be known, how shall it be determined whether a discrimination, independent of the breach of contract, would not do a real injury to purchasers; and if it included a compensation to the primitive proprietors, would not give them an advantage to which they had no equitable pretension.
It may well be imagined, also, that there are not wanting instances in which individuals, urged by a present necessity, parted with the securities received by them from the public and shortly after replaced them with others, as an indemnity for their first loss. Shall they be deprived of the indemnity which they have endeavoured to secure by so provident an arrangement?
Questions of this sort, on a close inspection, multiply themselves without end, and demonstrate the injustice of a discrimination even on the most subtle calculations of equity, abstracted from the obligation of contract.
The difficulties too of regulating the details of a plan for that purpose, which would have even the semblance of equity, would be found immense. It may well be doubted whether they would not be insurmountable and replete with such absurd, as well as inequitable consequences, as to disgust even the proposers of the measure… .
But there is still a point in view in which it will appear perhaps even more exceptionable than in either of the former. It would be repugnant to an express provision of the Constitution of the United States. This provision is that “all debts contracted and engagements entered into before the adoption of that Constitution shall be as valid against the United States under it, as under the confederation,” which amounts to a constitutional ratification of the contracts respecting the debt, in the state in which they existed under the confederation. And resorting to that standard, there can be no doubt that the rights of assignees and original holders must be considered as equal.
In exploding thus fully the principle of discrimination, the Secretary is happy in reflecting that he is only the advocate of what has been already sanctioned by the formal and express authority of the government of the Union, in these emphatic terms—“The remaining class of creditors (say Congress in their circular address to the states of the 26th of April 1783) is composed partly of such of our fellow-citizens as originally lent to the public the use of their funds or have since manifested most confidence in their country by receiving transfers from the lenders; and partly of those whose property has been either advanced or assumed for the public service. To discriminate the merits of these several descriptions of creditors would be a task equally unnecessary and invidious. If the voice of humanity plead more loudly in favor of some than of others, the voice of policy, no less than of justice, pleads in favor of all. A wise nation will never permit those who relieve the wants of their country, or who rely most on its faith, its firmness, and its resources, when either of them is distrusted, to suffer by the event.”
The Secretary, concluding that a discrimination between the different classes of creditors of the United States cannot with propriety be made, proceeds to examine whether a difference ought to be permitted to remain between them and another description of public creditors—Those of the states individually.
The Secretary, after mature reflection on this point, entertains a full conviction that an assumption of the debts of the particular states by the Union, and a like provision for them as for those of the Union, will be a measure of sound policy and substantial justice.
It would, in the opinion of the Secretary, contribute, in an eminent degree, to an orderly, stable and satisfactory arrangement of the national finances.
Admitting, as ought to be the case, that a provision must be made in some way or other for the entire debt, it will follow that no greater revenues will be required whether that provision be made wholly by the United States or partly by them and partly by the states separately.
The principal question then must be whether such a provision cannot be more conveniently and effectually made by one general plan issuing from one authority than by different plans originating in different authorities.
In the first case there can be no competition for resources; in the last, there must be such a competition. The consequences of this, without the greatest caution on both sides, might be interfering regulations, and thence collision and confusion. Particular branches of industry might also be oppressed by it. The most productive objects of revenue are not numerous. Either these must be wholly engrossed by one side, which might occasion an accumulation upon them beyond what they could properly bear. If this should not happen, the caution requisite to avoiding it would prevent the revenue’s deriving the full benefit of each object. The danger of interference and of excess would be apt to impose restraints very unfriendly to the complete command of those resources which are the most convenient; and to compel the having recourse to others, less eligible in themselves, and less agreeable to the community… .
If all the public creditors receive their dues from one source, distributed with an equal hand, their interest will be the same. And having the same interests, they will unite in the support of the fiscal arrangements of the government: As these, too, can be made with more convenience where there is no competition, these circumstances combined will insure to the revenue laws a more ready and more satisfactory execution.
If on the contrary there are distinct provisions, there will be distinct interests, drawing different ways. That union and concert of views among the creditors, which in every government is of great importance to their security and to that of public credit, will not only not exist, but will be likely to give place to mutual jealousy and opposition. And from this cause, the operation of the systems which may be adopted, both by the particular states and by the Union, with relation to their respective debts, will be in danger of being counteracted.
There are several reasons which render it probable that the situation of the state creditors would be worse than that of the creditors of the Union if there be not a national assumption of the state debts. Of these it will be sufficient to mention two; one, that a principal branch of revenue is exclusively vested in the Union; the other, that a state must always be checked in the imposition of taxes on articles of consumption from the want of power to extend the same regulation to the other states and from the tendency of partial duties to injure its industry and commerce. Should the state creditors stand upon a less eligible footing than the others, it is unnatural to expect they would see with pleasure a provision for them. The influence which their dissatisfaction might have could not but operate injuriously, both for the creditors and the credit of the United States.
Hence it is even the interest of the creditors of the Union that those of the individual states should be comprehended in a general provision. Any attempt to secure to the former either exclusive or peculiar advantages would materially hazard their interests.
Neither would it be just that one class of the public creditors should be more favoured than the other. The objects for which both descriptions of the debt were contracted are in the main the same. Indeed a great part of the particular debts of the states has arisen from assumptions by them on account of the Union. And it is most equitable that there should be the same measure of retribution for all.
There is an objection, however, to an assumption of the state debts which deserves particular notice. It may be supposed that it would increase the difficulty of an equitable settlement between them and the United States.
The principles of that settlement, whenever they shall be discussed, will require all the moderation and wisdom of the government. In the opinion of the Secretary, that discussion, till further lights are obtained, would be premature.
All therefore which he would now think adviseable on the point in question would be that the amount of the debts assumed and provided for should be charged to the respective states, to abide an eventual arrangement. This, the United States, as assignees to the creditors, would have an indisputable right to do… .
Persuaded as the Secretary is that the proper funding of the present debt will render it a national blessing, yet he is so far from acceding to the position, in the latitude in which it is sometimes laid down, that “public debts are public benefits,” a position inviting to prodigality and liable to dangerous abuse, that he ardently wishes to see it incorporated as a fundamental maxim in the system of public credit of the United States, that the creation of debt should always be accompanied with the means of extinguishment. This he regards as the true secret for rendering public credit immortal. And he presumes that it is difficult to conceive a situation in which there may not be an adherence to the maxim. At least he feels an unfeigned solicitude that this may be attempted by the United States, and that they may commence their measures for the establishment of credit with the observance of it.
Under this impression, the Secretary proposes that the net product of the post-office, to a sum not exceeding one million of dollars, be vested in commissioners to consist of the Vice-President of the United States or President of the Senate, the Speaker of the House of Representatives, the Chief Justice, Secretary of the Treasury and Attorney-General of the United States, for the time being, in trust, to be applied by them, or any three of them, to the discharge of the existing public debt, either by purchases of stock in the market or by payments on account of the principal, as shall appear to them most adviseable, in conformity to the public engagements; to continue so vested until the whole of the debt shall be discharged… .
Lance Banning, Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004). Chapter: thomas jefferson Memorandum on the Compromise of 1790
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Madison’s proposal to discriminate between original and secondary holders was overwhelmingly defeated and the funding of the federal debt approved on much the terms that Hamilton had recommended. But, against a background of maneuvers in both branches of Congress over a permanent location for the seat of the federal government, the House then deadlocked on the question of federal assumption of the debts of the states, which was repeatedly defeated. Writing probably in 1792, Jefferson left the only first-person account of the bargain that apparently ensued. He surely misremembered some of the details, but no one doubts the main lines of his story.
The assumption of the state debts in 1790 was a supplementary measure in Hamilton’s fiscal system. When attempted in the House of Representatives it failed. This threw Hamilton himself and a number of members into deep dismay. Going to the President’s one day I met Hamilton as I approached the door. His look was sombre, haggard, and dejected beyond description. Even his dress uncouth and neglected. He asked to speak with me. We stood in the street near the door. He opened the subject of the assumption of the state debts, the necessity of it in the general fiscal arrangement and its indispensible necessity towards a preservation of the Union: and particularly of the New England states, who had made great expenditures during the war, on expeditions which tho’ of their own undertaking were for the common cause: that they considered the assumption of these by the Union so just, and its denial so palpably injurious, that they would make it a sine qua non of a continuance of the Union. That as to his own part, if he had not credit enough to carry such a measure as that, he could be of no use, and was determined to resign. He observed at the same time, that tho’ our particular business laid in separate departments, yet the administration and its success was a common concern, and that we should make common cause in supporting one another. He added his wish that I would interest my friends from the South, who were those most opposed to it. I answered that I had been so long absent from my country that I had lost a familiarity with its affairs, and being but lately returned had not yet got into the train of them, that the fiscal system being out of my department, I had not yet undertaken to consider and understand it, that the assumption had struck me in an unfavorable light, but still not having considered it sufficiently I had not concerned in it, but that I would revolve what he had urged in my mind. It was a real fact that the Eastern and Southern members (S. Carolina, however, was with the former) had got into the most extreme ill humor with one another. This broke out on every question with the most alarming heat, the bitterest animosities seemed to be engendered, and tho’ they met every day, little or nothing could be done from mutual distrust and antipathy. On considering the situation of things I thought the first step towards some conciliation of views would be to bring Mr. Madison and Colo. Hamilton to a friendly discussion of the subject. I immediately wrote to each to come and dine with me the next day, mentioning that we should be alone, that the object was to find some temperament for the present fever, and that I was persuaded that men of sound heads and honest views needed nothing more than explanation and mutual understanding to enable them to unite in some measures which might enable us to get along. They came. I opened the subject to them, acknowledged that my situation had not permitted me to understand it sufficiently, but encouraged them to consider the thing together. They did so. It ended in Mr. Madison’s acquiescence in a proposition that the question should be again brought before the House by way of amendment from the Senate, that tho’ he would not vote for it, nor entirely withdraw his opposition, yet he should not be strenuous, but leave it to its fate. It was observed, I forget by which of them, that as the pill would be a bitter one to the Southern states, something should be done to soothe them; that the removal of the seat of government to the Potomac was a just measure, and would probably be a popular one with them, and would be a proper one to follow the assumption. It was agreed to speak to Mr. White and Mr. Lee, whose districts lay on the Potomac and to refer to them to consider how far the interests of their particular districts might be a sufficient inducement to them to yield to the assumption. This was done. Lee came into it without hesitation. Mr. White had some qualms, but finally agreed. The measure came down by way of amendment from the Senate and was finally carried by the change of White’s and Lee’s votes. But the removal to Potomac could not be carried unless Pennsylvania could be engaged in it. This Hamilton took on himself, and chiefly, as I understood, through the agency of Robert Morris, obtained the vote of that state, on agreeing to an intermediate residence at Philadelphia. This is the real history of the assumption, about which many erroneous conjectures have been published. It was unjust, in itself oppressive to the states, and was acquiesced in merely from a fear of disunion, while our government was still in its most infant state. It enabled Hamilton so to strengthen himself by corrupt services to many that he could afterwards carry his bank scheme and every measure he proposed in defiance of all opposition; in fact it was a principal ground whereon was reared up that Speculating phalanx, in and out of Congress which has since been able to give laws and to change the political complexion of the government of the U.S.
Ellis Sandoz, Political Sermons of the American Founding Era: 1730-1805, 2 vols, Foreword by Ellis Sandoz (2nd ed. Indianapolis: Liberty Fund, 1998). Vol. 2. Chapter: 34. Richard Price, A DISCOURSE ON THE LOVE OF OUR COUNTRY
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Richard Price (1723–1791). Born at Tynton in Glamorganshire, Wales, Price gained fame as a supporter of the American and French revolutions. A friend of Benjamin Franklin, he was a liberal Presbyterian minister and a moral philosopher whose critique of the Scottish philosophy of Francis Hutcheson in Review of the Principal Questions and Difficulties in Morals (1758) came to be regarded as a significant anticipation of Kant’s ethics in certain respects and of nineteenth-century intuitionism in others. With Joseph Priestly, Price also published A Free Discussion of the Doctrines of Materialism and Philosophical Necessity (1778), written in the form of a debate. As a result of his publication of a reply to David Hume’s essay on miracles, Price had a D.D. degree conferred upon him by the University of Aberdeen.
As an expert on finance and insurance, Price was selected to become a member of the Royal Society in 1765 for work on the theory of probability as applied to actuarial questions. His recommendation of a sinking fund to cope with problems of national debt influenced both French and British policy.
Price’s vehement support for American independence came primarily through publication of two pamphlets that circulated widely at home and in America: Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America (1776) and Additional Observations . . . (1777). Offered American citizenship, he declined, but he did address Congress when invited in 1778, was inducted into the American Philosophical Society, and was awarded (along with George Washington) an LL.D. by Yale in 1781. Price’s The Importance of the American Revolution appeared in 1784.
The celebrated sermon that follows was preached in London on November 4, 1789, the 101st anniversary of the Glorious Revolution. It presents Price’s apocalyptic view of the dawning of the millennium through the spread of liberty and happiness over the world, especially as evinced in French developments at the time. This point, according to A. J. Grieve, was for Edmund Burke the “grit around which he built up his pearl”—namely, Reflections on the Revolution in France (1790). The gentility of Price’s encomium for the French revolutionaries contrasts drastically with Burke’s savage ridicule:
Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a madman, who has escaped from the protecting restraint and wholesome darkness of his cell, on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer, who has broke prison, upon the recovery of his natural rights? This would be to act over again the scene of the criminals condemned to the galleys, and their heroic deliverer [Don Quixote], the metaphysic knight of the sorrowful countenance.
In rebuttal to Price’s central proposition that the people of England have three fundamental rights that the French aspire to (“To choose our own governors; to cashier them for misconduct; and to frame a government for ourselves”), Burke scathingly retorted: “We have an inheritable crown; an inheritable peerage; and a House of Commons and a people inheriting privileges, franchises, and liberties, from a long line of ancestors.” Burke was answered not only by the aged, ailing Price, but also by Thomas Paine in The Rights of Man (1792). Paine, a writer of comparable intellect but of far less gentility—being every bit Burke’s equal in the fine old art of invective—vindicated Price’s three fundamental rights. Indeed, Price’s sermon was the starting point for what Thomas W. Copeland designated “the most crucial ideological debate ever carried on in English.”
Our feet shall stand within thy gates, O Jerusalem, whither the tribes go up; the tribes of the Lord unto the testimony of Israel. To give thanks to the name of the Lord, for there sit the thrones of judgment; the throne of the House of David. Pray for the peace of Jerusalem. They shall prosper that love thee. Peace be within thy walls, and prosperity within thy palaces. For my brethren and companions sake I will now say, peace be within thee. Because of the House of the Lord our God, I will seek thy good.
Psalm cxxii, 2d, and following verses.
In these words the Psalmist expresses, in strong and beautiful language, his love of his country, and the reasons on which he founded it; and my present design is, to take occasion from them to explain the duty we owe to our country, and the nature, foundation, and proper expressions of that love to it which we ought to cultivate.
I reckon this a subject particularly suitable to the services of this day, and to the anniversary of our deliverance at the Revolution from the dangers of popery and arbitrary power; and should I, on such an occasion, be led to touch more on political subjects than would at any other time be proper in the pulpit, you will, I doubt not, excuse me.
The love of our country has, in all times, been a subject of warm commendations; and it is certainly a noble passion; but, like all other passions, it requires regulation and direction. There are mistakes and prejudices by which, in this instance, we are in particular danger of being misled. I will briefly mention some of these to you, and observe,
First, That by our country is meant, in this case, not the soil, or the spot of earth on which we happen to have been born; not the forests and fields, but that community of which we are members; or that body of companions and friends and kindred who are associated with us under the same constitution of government, protected by the same laws, and bound together by the same civil polity.
Secondly, It is proper to observe, that even in this sense of our country, that love of it which is our duty, does not imply any conviction of the superior value of it to other countries, or any particular preference of its laws and constitution of government. Were this implied, the love of their country would be the duty of only a very small part of mankind; for there are few countries that enjoy the advantage of laws and governments which deserve to be preferred. To found, therefore, this duty on such a preference, would be to found it on error and delusion. It is however a common delusion. There is the same partiality in countries, to themselves, that there is in individuals. All our attachments should be accompanied, as far as possible, with right opinions. We are too apt to confine wisdom and virtue within the circle of our own acquaintance and party. Our friends, our country, and, in short, every thing related to us, we are disposed to overvalue. A wise man will guard himself against this delusion. He will study to think of all things as they are, and not suffer any partial affections to blind his understanding. In other families there may be as much worth as in our own. In other circles of friends there may be as much wisdom; and in other countries as much of all that deserves esteem; but, notwithstanding this, our obligation to love our own families, friends, and country, and to seek, in the first place, their good, will remain the same.
Thirdly, It is proper I should desire you particularly to distinguish between the love of our country and that spirit of rivalship and ambition which has been common among nations. What has the love of their country hitherto been among mankind? What has it been but a love of domination; a desire of conquest, and a thirst for grandeur and glory, by extending territory, and enslaving surrounding countries? What has it been but a blind and narrow principle, producing in every country a contempt of other countries, and forming men into combinations and factions against their common rights and liberties? This is the principle that has been too often cried up as a virtue of the first rank: a principle of the same kind with that which governs clans of Indians, or tribes of Arabs, and leads them out to plunder and massacre. As most of the evils which have taken place in private life, and among individuals, have been occasioned by the desire of private interest overcoming the public affections; so most of the evils which have taken place among bodies of men have been occasioned by the desire of their own interest overcoming the principle of universal benevolence: and leading them to attack one another’s territories, to encroach on one another’s rights, and to endeavour to build their own advancement on the degradation of all within the reach of their power—what was the love of their country among the Jews, but a wretched partiality to themselves, and a proud contempt of all other nations? What was the love of their country among the old Romans? We have heard much of it; but I cannot hesitate in saying that, however great it appeared in some of its exertions, it was, in general, no better than a principle holding together a band of robbers in their attempts to crush all liberty but their own. What is now the love of his country in a Spaniard, a Turk, or a Russian? Can it be considered as any thing better than a passion for slavery, or a blind attachment to a spot where he enjoys no rights, and is disposed of as if he was a beast?
Let us learn by such reflections to correct and purify this passion, and to make it a just and rational principle of action.
It is very remarkable that the founder of our religion has not once mentioned this duty, or given us any recommendation of it; and this has, by unbelievers, been made an objection to Christianity. What I have said will entirely remove this objection. Certain it is, that, by inculcating on men an attachment to their country, Christianity would, at the time it was propagated, have done unspeakably more harm than good. Among the Jews, it would have been an excitement to war and insurrections; for they were then in eager expectation of becoming soon (as the favourite people of heaven) the lords and conquerors of the earth, under the triumphant reign of the Messiah. Among the Romans, likewise, this principle had, as I have just observed, exceeded its just bounds, and rendered them enemies to the peace and happiness of mankind. By inculcating it, therefore, Christianity would have confirmed both Jews and gentiles in one of the most pernicious faults. Our Lord and his apostles have done better. They have recommended that universal benevolence which is an unspeakably nobler principle than any partial affections. They have laid such stress on loving all men, even our enemies, and made an ardent and extensive charity so essential a part of virtue, that the religion they have preached may, by way of distinction from all other religions, be called the Religion of Benevolence. Nothing can be more friendly to the general rights of mankind; and were it duly regarded and practised, every man would consider every other man as his brother, and all the animosity that now takes place among contending nations would be abolished. If you want any proof of this, think of our Saviour’s parable of the good Samaritan. The Jews and Samaritans were two rival nations that entertained a hatred of one another the most inveterate. The design of this parable was to shew to a Jew, that even a Samaritan, and consequently all men of all nations and religions, were included in the precept, Thou shalt love thy neighbour as thyself.
But I am digressing from what I had chiefly in view; which was, after noticing that love of our country which is false and spurious, to explain the nature and effects of that which is just and reasonable. With this view, I must desire you to recollect that we are so constituted that our affections are more drawn to some among mankind than to others, in proportion to their degrees of nearness to us, and our power of being useful to them. It is obvious, that this is a circumstance in the constitution of our natures which proves the wisdom and goodness of our Maker; for had our affections been determined alike to all our fellow-creatures, human life would have been a scene of embarrassment and distraction. Our regards, according to the order of nature, begin with ourselves; and every man is charged primarily with the care of himself. Next come our families, and benefactors, and friends; and after them, our country. We can do little for the interest of mankind at large. To this interest, however, all other interests are subordinate. The noblest principle in our nature is the regard to general justice, and that good-will which embraces all the world. I have already observed this; but it cannot be too often repeated. Though our immediate attention must be employed in promoting our own interest and that of our nearest connexions; yet we must remember, that a narrower interest ought always to give way to a more extensive interest. In pursuing particularly the interest of our country, we ought to carry our views beyond it. We should love it ardently, but not exclusively. We ought to seek its good, by all the means that our different circumstances and abilities will allow; but, at the same time, we ought to consider ourselves as citizens of the world, and take care to maintain a just regard to the rights of other countries.
The enquiry by what means (subject to this limitation) we may best promote the interest of our country, is very important; and all that remains of this discourse shall be employed in answering it, and in exhorting you to manifest your love to your country, by the means I shall mention.
The chief blessings of human nature are the three following: Truth—Virtue—and Liberty. These are, therefore, the blessings in the possession of which the interest of our country lies, and to the attainment of which our love of it ought to direct our endeavours. By the diffusion of knowledge it must be distinguished from a country of barbarians: by the practice of religious virtue, it must be distinguished from a country of gamblers, atheists, and libertines: and by the possession of liberty, it must be distinguished from a country of slaves. I will dwell for a few moments on each of these heads:
Our first concern, as lovers of our country, must be to enlighten it. Why are the nations of the world so patient under despotism? Why do they crouch to tyrants, and submit to be treated as if they were a herd of cattle? Is it not because they are kept in darkness, and want knowledge? Enlighten them and you will elevate them. Shew them they are men, and they will act like men. Give them just ideas of civil government, and let them know that it is an expedient for gaining protection against injury and defending their rights, and it will be impossible for them to submit to governments which, like most of those now in the world, are usurpations on the rights of men, and little better than contrivances for enabling the few to oppress the many. Convince them that the Deity is a righteous and benevolent as well as omnipotent Being, who regards with equal eye all his creatures, and connects his favour with nothing but an honest desire to know and do his will; and that zeal for mystical doctrines which has led men to hate and harass one another, will be exterminated. Set religion before them as a rational service, consisting not in any rites and ceremonies, but in worshipping God with a pure heart, and practising righteousness from the fear of his displeasure and the apprehension of a future righteous judgment, and that gloomy and cruel superstition will be abolished, which has hitherto gone under the name of religion, and to the support of which civil government has been perverted. Ignorance is the parent of bigotry, intolerance, persecution and slavery. Inform and instruct mankind, and these evils will be excluded. Happy is the person who, himself raised above vulgar errors, is conscious of having aimed at giving mankind this instruction. Happy is the scholar or philosopher who at the close of life can reflect that he has made this use of his learning and abilities: but happier far must he be, if at the same time he has reason to believe he has been successful, and actually contributed, by his instructions, to disseminate among his fellow-creatures just notions of themselves, of their rights, of religion, and the nature and end of civil government. Such were Milton, Locke, Sidney, Hoadly, &c. in this country; such were Montesquieu, Fenelon, Turgot, &c. in France. They sowed a seed which has since taken root, and is now growing up to a glorious harvest. To the information they conveyed by their writings we owe those revolutions in which every friend to mankind is now exulting. What an encouragement is this to us all in our endeavours to enlighten the world? Every degree of illumination which we can communicate must do the greatest good. It helps to prepare the minds of men for the recovery of their rights, and hastens the overthrow of priestcraft and tyranny. In short, we may, in this instance, learn our duty from the conduct of the oppressors of the world. They know that light is hostile to them, and therefore they labour to keep men in the dark. With this intention they have appointed licensers of the press; and, in popish countries, prohibited the reading of the Bible. Remove the darkness in which they envelope the world, and their usurpations will be exposed, their power will be subverted, and the world emancipated.
The next great blessing of human nature which I have mentioned, is virtue. This ought to follow knowledge, and to be directed by it. Virtue without knowledge makes enthusiasts; and knowledge without virtue makes devils; but both united elevates to the top of human dignity and perfection. We must, therefore, if we would serve our country, make both these the objects of our zeal. We must discourage vice in all its forms; and our endeavours to enlighten must have ultimately in view a reformation of manners and virtuous practice.
I must add here, that in the practice of virtue I include the discharge of the public duties of religion. By neglecting these, we may injure our country essentially. But it is melancholy to observe that it is a common neglect among us; and in a great measure owing to a cause which is not likely to be soon removed: I mean, the defects (may I not say, the absurdities?) in our established codes of faith and worship. In foreign countries, the higher ranks of men, not distinguishing between the religion they see established and the Christian religion, are generally driven to irreligion and infidelity. The like evil is produced by the like cause in this country; and if no reformation of our established formularies can be brought about, it must be expected that religion will go on to lose its credit, and that little of it will be left except among the lower orders of people, many of whom, while their superiors give up all religion, are sinking into an enthusiasm in religion lately revived.
I hope you will not mistake what I am now saying, or consider it as the effect of my prejudices as a dissenter from the established church. The complaint I am making, is the complaint of many of the wisest and best men in the established church itself, who have been long urging the necessity of a revisal of its liturgy and articles. These were framed above two centuries ago, when Christendom was just emerging from the ignorance and barbarity of the dark ages. They remain now much the same they were then; and, therefore, cannot be properly adapted to the good sense and liberality of the present times. This imperfection, however, in our public forms of worship, affords no excuse to any person for neglecting public worship. All communities will have some religion; and it is of infinite consequence that they should be led to that which, by enforcing the obligations of virtue and putting men upon loving instead of damning one another, is most favourable to the interest of society.
If there is a Governor of the world, who directs all events, he ought to be invoked and worshipped; and those who dislike that mode of worship which is prescribed by public authority, ought (if they can find no worship out of the church which they approve) to set up a separate worship for themselves; and by doing this, and giving an example of a rational and manly worship, men of weight, from their rank or literature, may do the greatest service to society and the world. They may bear a testimony against that application of civil power to the support of particular modes of faith, which obstructs human improvement, and perpetuates error; and they may hold out an instruction which will discountenance superstition, and at the same time recommend religion, by making it appear to be (what it certainly is when rightly understood) the strongest incentive to all that is generous and worthy, and consequently the best friend to public order and happiness.
Liberty is the next great blessing which I have mentioned as the object of patriotic zeal. It is inseparable from knowledge and virtue, and together with them completes the glory of a community. An enlightened and virtuous country must be a free country. It cannot suffer invasions of its rights, or bend to tyrants. I need not, on this occasion, take any pains to shew you how great a blessing liberty is. The smallest attention to the history of past ages, and the present state of mankind, will make you sensible of its importance. Look round the world, and you will find almost every country, respectable or contemptible, happy or miserable, a fruitful field or a frightful waste, according as it possesses or wants this blessing. Think of Greece, formerly the seat of arts and science, and the most distinguished spot under heaven; but now, having lost liberty, a vile and wretched spot, a region of darkness, poverty, and barbarity. Such reflections must convince you that, if you love your country, you cannot be zealous enough in promoting the cause of liberty in it. But it will come in my way to say more to this purpose presently.
The observations I have made include our whole duty to our country; for by endeavouring to liberalize and enlighten it, to discourage vice and to promote virtue in it, and to assert and support its liberties, we shall endeavour to do all that is necessary to make it great and happy. But it is proper that, on this occasion, I should be more explicit, and exemplify our duty to our country by observing farther, that it requires us to obey its laws, and to respect its magistrates.
Civil government (as I have before observed) is an institution of human prudence for guarding our persons, our property, and our good name, against invasion; and for securing to the members of a community that liberty to which all have an equal right, as far as they do not, by any overt act, use it to injure the liberty of others. Civil laws are regulations agreed upon by the community for gaining these ends; and civil magistrates are officers appointed by the community for executing these laws. Obedience, therefore, to the laws and to magistrates, are necessary expressions of our regard to the community; and without this obedience the ends of government cannot be obtained, or a community avoid falling into a state of anarchy that will destroy those rights and subvert that liberty, which government is instituted to protect.
I wish it was in my power to give you a just account of the importance of this observation. It shews the ground on which the duty of obeying civil governors stands, and that there are two extremes in this case which ought to be avoided. These extremes are adulation and servility on one hand; and a proud and licentious contempt on the other. The former is the extreme to which mankind in general have been most prone; for it has oftener happened that men have been too passive than too unruly; and the rebellion of kings against their people has been more common, and done more mischief, than the rebellion of people against their kings.
Adulation is always odious, and when offered to men in power, it corrupts them, by giving them improper ideas of their situation; and it debases those who offer it, by manifesting an abjectness founded on improper ideas of themselves. I have lately observed in this kingdom too near approaches to this abjectness. In our late addresses to the king, on his recovery from the severe illness with which God has been pleased to afflict him, we have appeared more like a herd crawling at the feet of a master, than like enlightened and manly citizens rejoicing with a beloved sovereign, but at the same time conscious that he derives all his consequence from themselves. But, perhaps, these servilities in the language of our late addresses should be pardoned, as only forms of civility and expressions of an overflow of good-nature. They have, however, a dangerous tendency. The potentates of this world are sufficiently apt to consider themselves as possessed of an inherent superiority, which gives them a right to govern, and makes mankind their own; and this infatuation is almost every where fostered in them by the creeping sycophants about them, and the language of flattery which they are continually hearing.
Civil governors are properly the servants of the public; and a king is no more than the first servant of the public, created by it, maintained by it, and responsible to it: and all the homage paid him, is due to him on no other account than his relation to the public. His sacredness is the sacredness of the community. His authority is the authority of the community; and the term majesty, which it is usual to apply to him, is by no means his own majesty, but the majesty of the people. For this reason, whatever he may be in his private capacity; and though, in respect of personal qualities, not equal to, or even far below many among ourselves—for this reason, I say (that is, as representing the community and its first magistrate), he is entitled to our reverence and obedience. The words most excellent majesty are rightly applied to him; and there is a respect which it would be criminal to withhold from him.
You cannot be too attentive to this observation. The improvement of the world depends on the attention to it: nor will mankind be ever as virtuous and happy as they are capable of being, till the attention to it becomes universal and efficacious. If we forget it, we shall be in danger of an idolatry as gross and stupid as that of the ancient heathens, who, after fabricating blocks of wood or stone, fell down and worshipped them. The disposition in mankind to this kind of idolatry is indeed a very mortifying subject of reflection. In Turkey, millions of human beings adore a silly mortal, and are ready to throw themselves at his feet, and to submit their lives to his discretion. In Russia, the common people are only a stock on the lands of grandees, or appendages to their estates, which, like the fixtures in a house, are bought and sold with the estates. In Spain, in Germany, and under most of the governments of the world, mankind are in a similar state of humiliation. Who, that has a just sense of the dignity of his nature, can avoid execrating such a debasement of it?
Had I been to address the king on a late occasion, I should have been inclined to do it in a style very different from that of most of the addressers, and to use some such language as the following:
I rejoice, sir, in your recovery. I thank God for his goodness to you. I honour you not only as my king, but as almost the only lawful king in the world, because the only one who owes his crown to the choice of his people. May you enjoy all possible happiness. May God shew you the folly of those effusions of adulation which you are now receiving, and guard you against their effects. May you be led to such a just sense of the nature of your situation, and endowed with such wisdom, as shall render your restoration to the government of these kingdoms a blessing to it, and engage you to consider yourself as more properly the servant than the sovereign of your people.
But I must not forget the opposite extreme to that now taken notice of; that is, a disdainful pride, derived from a consciousness of equality, or, perhaps, superiority, in respect of all that gives true dignity to men in power, and producing a contempt of them, and a disposition to treat them with rudeness and insult. It is a trite observation, that extremes generally beget one another. This is particularly true in the present case. Persons justly informed on the subject of government, when they see men dazzled by looking up to high stations, and observe loyalty carried to a length that implies ignorance and servility: such persons, in such circumstances, are in danger of spurning at all public authority, and throwing off that respectful demeanor to persons invested with it, which the order of society requires. There is undoubtedly a particular deference and homage due to civil magistrates, on account of their stations and offices; nor can that man be either truly wise or truly virtuous, who despises governments, and wantonly speaks evil of his rulers; or who does not, by all the means in his power, endeavour to strengthen their hands, and to give weight to their exertions in the discharge of their duty. Fear God, says St. Peter. Love the brotherhood. Honour all men. Honour the King. You must needs, says St. Paul, be subject to rulers, not only for wrath (that is, from the fear of suffering the penalties annexed to the breach of the laws) but for conscience sake. For rulers are ministers of God, and revengers for executing wrath on all that do evil.
Another expression of our love to our country is defending it against enemies. These enemies are of two sorts, internal and external; or domestic and foreign. The former are the most dangerous, and they have generally been the most successful. I have just observed, that there is a submission due to the executive officers of government, which is our duty; but you must not forget what I have also observed, that it must not be a blind and slavish submission. Men in power (unless better disposed than is common) are always endeavouring to extend their power. They hate the doctrine, that it is a trust derived from the people, and not a right vested in themselves. For this reason, the tendency of every government is to despotism; and in this the best constituted governments must end, if the people are not vigilant, ready to take alarms, and determined to resist abuses as soon as they begin. This vigilance, therefore, it is our duty to maintain. Whenever it is withdrawn, and a people cease to reason about their rights and to be awake to encroachments, they are in danger of being enslaved, and their servants will soon become their masters.
I need not say how much it is our duty to defend our country against foreign enemies. When a country is attacked in any of its rights by another country, or when any attempts are made by ambitious foreign powers to injure it, a war in its defence becomes necessary: and, in such circumstances, to die for our country is meritorious and noble. These defensive wars are, in my opinion, the only just wars. Offensive wars are always unlawful; and to seek the aggrandizement of our country by them, that is, by attacking other countries, in order to extend dominion, or to gratify avarice, is wicked and detestable. Such, however, have been most of the wars which have taken place in the world; but the time is, I hope, coming, when a conviction will prevail, of the folly as well as the iniquity of wars; and when the nations of the earth, happy under just governments, and no longer in danger from the passions of kings, will find out better ways of settling their disputes; and beat (as Isaiah prophesies) their swords into plow-shares, and their spears into pruning-hooks.
Among the particulars included in that duty to our country, by discharging which we should shew our love to it, I will only further mention praying for it, and offering up thanksgivings to God for every event favourable to it. At the present season we are called upon to express, in this way, our love to our country. It is the business of this day and of the present service; and, therefore, it is necessary that I should now direct your attention to it particularly.
We are met to thank God for that event in this country to which the name of the Revolution has been given; and which, for more than a century, it has been usual for the friends of freedom, and more especially Protestant Dissenters, under the title of the Revolution Society, to celebrate with expressions of joy and exultation. My highly valued and excellent friend, who addressed you on this occasion last year, has given you an interesting account of the principal circumstances that attended this event, and of the reasons we have for rejoicing in it. By a bloodless victory, the fetters which despotism had been long preparing for us were broken; the rights of the people were asserted, a tyrant expelled, and a sovereign of our own choice appointed in his room. Security was given to our property, and our consciences were emancipated. The bounds of free enquiry were enlarged; the volume in which are the words of eternal life, was laid more open to our examination; and that æra of light and liberty was introduced among us, by which we have been made an example to other kingdoms, and became the instructors of the world. Had it not been for this deliverance, the probability is, that, instead of being thus distinguished, we should now have been a base people, groaning under the infamy and misery of popery and slavery. Let us therefore, offer thanksgivings to God, the author of all our blessings. Had he not been on our side, we should have been swallowed up quick, and the proud waters would have gone over our souls. But our souls are escaped, and the snare has been broken. Blessed then be the name of the Lord, who made heaven and earth.cxxivth Psalm.
It is well known that King James was not far from gaining his purpose; and that probably he would have succeeded, had he been less in a hurry. But he was a fool as well as a bigot. He wanted courage as well as prudence; and, therefore, fled, and left us to settle quietly for ourselves that constitution of government which is now our boast. We have particular reason, as Protestant Dissenters, to rejoice on this occasion. It was at this time we were rescued from persecution, and obtained the liberty of worshipping God in the manner we think most acceptable to him. It was then our meeting houses were opened, our worship was taken under the protection of the law, and the principles of toleration gained a triumph. We have, therefore, on this occasion, peculiar reasons for thanksgiving—But let us remember that we ought not to satisfy ourselves with thanksgivings. Our gratitude, if genuine, will be accompanied with endeavours to give stability to the deliverance our country has obtained, and to extend and improve the happiness with which the Revolution has blest us—let us, in particular, take care not to forget the principles of the Revolution. This society has, very properly, in its reports, held out these principles, as an instruction to the public. I will only take notice of the three following:
First; The right to liberty of conscience in religious matters.
Secondly; The right to resist power when abused. And,
Thirdly; The right to chuse our own governors; to cashier them for misconduct; and to frame a government for ourselves.
On these three principles, and more especially the last, was the Revolution founded. Were it not true that liberty of conscience is a sacred right; that power abused justifies resistance; and that civil authority is a delegation from the people—were not, I say, all this true, the Revolution would have been not an assertion, but an invasion of rights; not a revolution, but a rebellion. Cherish in your breasts this conviction, and act under its influence; detesting the odious doctrines of passive obedience, non-resistance, and the divine right of kings—doctrines which, had they been acted upon in this country, would have left us at this time wretched slaves—doctrines which imply, that God made mankind to be oppressed and plundered; and which are no less a blasphemy against him, than an insult on common sense.
I would farther direct you to remember, that though the Revolution was a great work, it was by no means a perfect work; and that all was not then gained which was necessary to put the kingdom in the secure and complete possession of the blessings of liberty. In particular, you should recollect, that the toleration then obtained was imperfect. It included only those who could declare their faith in the doctrinal articles of the church of England. It has, indeed, been since extended, but not sufficiently; for there still exist penal laws on account of religious opinions, which (were they carried into execution) would shut up many of our places of worship, and silence and imprison some of our ablest and best men. The Test Laws are also still in force; and deprive of eligibility to civil and military offices, all who cannot conform to the established worship. It is with great pleasure I find that the body of Protestant Dissenters, though defeated in two late attempts to deliver their country from this disgrace to it, have determined to persevere. Should they at last succeed, they will have the satisfaction, not only of removing from themselves a proscription they do not deserve, but of contributing to lessen the number of public iniquities. For I cannot call by a gentler name, laws which convert an ordinance appointed by our Saviour to commemorate his death, into an instrument of oppressive policy, and a qualification of rakes and atheists for civil posts. I have said, should they succeed—but perhaps I ought not to suggest a doubt about their success* And, indeed, when I consider that in Scotland the established church is defended by no such test—that in Ireland it has been abolished—that in a great neighbouring country it has been declared to be an indefeasible right of all citizens to be equally eligible to public offices—that in the same kingdom a professed dissenter from the established church holds the first office in the state—that in the emperor’s dominions Jews have been lately admitted to the enjoyment of equal privileges with other citizens—and that in this very country, a Dissenter, though excluded from the power of executing the laws, yet is allowed to be employed in making them. When, I say, I consider such facts as these, I am disposed to think it impossible that the enemies of the repeal of the Test Laws should not soon become ashamed, and give up their opposition.
But the most important instance of the imperfect state in which the Revolution left our constitution, is the inequality of our representation. I think, indeed, this defect in our constitution so gross and so palpable, as to make it excellent chiefly in form and theory. You should remember that a representation in the legislature of a kingdom is the basis of constitutional liberty in it, and of all legitimate government; and that without it a government is nothing but an usurpation. When the representation is fair and equal, and at the same time vested with such powers as our House of Commons possesses, a kingdom may be said to govern itself, and consequently to possess true liberty. When the representation is partial, a kingdom possesses liberty only partially; and if extremely partial, it only gives a semblance of liberty; but if not only extremely partial, but corruptly chosen, and under corrupt influence after being chosen, it becomes a nuisance, and produces the worst of all forms of government—a government by corruption, a government carried on and supported by spreading venality and profligacy through a kingdom. May heaven preserve this kingdom from a calamity so dreadful! It is the point of depravity to which abuses under such a government as ours naturally tend, and the last stage of national unhappiness. We are, at present, I hope, at a great distance from it. But it cannot be pretended that there are no advances towards it, or that there is no reason for apprehension and alarm.
The inadequateness of our representation has been long a subject of complaint. This is, in truth, our fundamental grievance; and I do not think that any thing is much more our duty, as men who love their country, and are grateful for the Revolution, than to unite our zeal in endeavouring to get it redressed. At the time of the American war, associations were formed for this purpose in London, and other parts of the kingdom; and our present minister himself has, since that war, directed to it an effort which made him a favourite with many of us. But all attention to it seems now lost, and the probability is, that this inattention will continue, and that nothing will be done towards gaining for us this essential blessing, till some great calamity again alarms our fears, or till some great abuse of power again provokes our resentment; or, perhaps, till the acquisition of a pure and equal representation by other countries (while we are mocked with the shadow) kindles our shame.
Such is the conduct by which we ought to express our gratitude for the Revolution. We should always bear in mind the principles that justify it. We should contribute all we can towards supplying what it left deficient; and shew ourselves anxious about transmitting the blessings obtained by it to our posterity, unimpaired and improved. But, brethren, while we thus shew our patriotic zeal, let us take care not to disgrace the cause of patriotism, by any licentious, or immoral conduct. Oh! how earnestly do I wish that all who profess zeal in this cause, were as distinguished by the purity of their morals, as some of them are by their abilities; and that I could make them sensible of the advantages they would derive from a virtuous character, and of the suspicions they incur and the loss of consequence they suffer by wanting it. Oh! that I could see in men who oppose tyranny in the state, a disdain of the tyranny of low passions in themselves; or, at least, such a sense of shame, and regard to public order and decency as would induce them to bide their irregularities, and to avoid insulting the virtuous part of the community by an open exhibition of vice! I cannot reconcile myself to the idea of an immoral patriot, or to that separation of private from public virtue, which some think to be possible. Is it to be expected that—but I must forbear. I am afraid of applications, which many are too ready to make, and for which I should be sorry to give any just occasion.
I have been explaining to you the nature and expressions of a just regard to our country. Give me leave to exhort you to examine your conduct by what I have been saying. You love your country, and desire its happiness; and, without doubt, you have the greatest reason for loving it. It has been long a very distinguished and favoured country. Often has God appeared for it, and delivered it. Let us study to shew ourselves worthy of the favour shewn us. Do you practice virtue yourselves, and study to promote it in others? Do you obey the laws of your country, and aim at doing your part towards maintaining and perpetuating its privileges? Do you always give your vote on the side of public liberty; and are you ready to pour out your blood in its defence? Do you look up to God for the continuance of his favour to your country, and pray for its prosperity; preserving, at the same time, a strict regard to the rights of other countries, and always considering yourselves more as citizens of the world than as members of any particular community? If this is your temper and conduct you are blessings to your country, and were all like you, this world would soon be a heaven.
I am addressing myself to Christians. Let me, therefore, mention to you the example of our blessed Saviour. I have observed, at the beginning of this discourse, that he did not inculcate upon his hearers the love of their country, or take any notice of it as a part of our duty. Instead of doing this, I observed that he taught the obligation to love all mankind, and recommended universal benevolence, as (next to the love of God) our first duty; and, I think, I also proved to you, that this, in the circumstances of the world at that time, was an instance of incomparable wisdom and goodness in his instructions. But we must not infer from hence, that he did not include the love of our country in the number of our duties. He has shewn the contrary by his example. It appears that he possessed a particular affection for his country, though a very wicked country. We read in Luke x. 42, that when, upon approaching Jerusalem, in one of his last journies to it, he beheld it, he wept over it, and said, Oh! that thou hadst known (even thou, at least in this thy day) the things that belong to thy peace. What a tender solicitude about his country does the lamentation over Jerusalem imply, which is recorded in the same gospel, chap. xiii. and 34. Oh! Jerusalem, Jerusalem, thou that killest the prophets, and stonest them who are sent to thee, how often would I have gathered thy children together, as a hen gathereth her brood under her wings, but ye would not.
It may not be improper farther to mention the love St. Paul expressed for his country, when he declared, that, for the sake of his brethren and kinsmen, he could even wish himself accursed from Christ. (Rom. ix. 3.) The original words are an anathema from Christ; and his meaning is, that he could have been contented to suffer himself the calamities which were coming on the Jewish people, were it possible for him, by such a sacrifice of himself, to save them.
It is too evident that the state of this country is such as renders it an object of concern and anxiety. It wants (I have shewn you) the grand security of public liberty. Increasing luxury has multiplied abuses in it. A monstrous weight of debt is crippling it. Vice and venality are bringing down upon it God’s displeasure. That spirit to which it owes its distinctions, is declining; and some late events seem to prove that it is becoming every day more reconcileable to encroachments on the securities of its liberties. It wants, therefore, your patriotic services; and, for the sake of the distinctions it has so long enjoyed; for the sake of our brethren and companions, and all that should be dear to a free people, we ought to do our utmost to save it from the dangers that threaten it; remembering, that by acting thus, we shall promote, in the best manner, our own private interest, as well as the interest of our country; for when the community prospers, the individuals that compose it must prosper with it. But, should that not happen, or should we even suffer in our secular interest by our endeavours to promote the interest of our country, we shall feel a satisfaction in our own breasts which is preferable to all this world can give; and we shall enjoy the transporting hope of soon becoming members of a perfect community in the heavens, and having an entrance ministered to us, abundantly into the everlasting kingdom of our Lord and Saviour Jesus Christ.
You may reasonably expect, that I should now close this address to you. But I cannot yet dismiss you. I must not conclude without recalling, particularly, to your recollection, a consideration to which I have more than once alluded, and which, probably, your thoughts have been all along anticipating: A consideration with which my mind is impressed more than I can express. I mean, the consideration of the favourableness of the present times to all exertions in the cause of public liberty.
What an eventful period is this! I am thankful that I have lived to it; and I could almost say, Lord, now lettest thou thy servant depart in peace, for mine eyes have seen thy salvation. I have lived to see a diffusion of knowledge, which has undermined superstition and error—I have lived to see the rights of men better understood than ever; and nations panting for liberty, which seemed to have lost the idea of it. I have lived to see thirty millions of people, indignant and resolute, spurning at slavery, and demanding liberty with an irresistible voice; their king led in triumph, and an arbitrary monarch surrendering himself to his subjects. After sharing in the benefits of one revolution, I have been spared to be a witness to two other revolutions, both glorious. And now, methinks, I see the ardour for liberty catching and spreading; a general amendment beginning in human affairs; the dominion of kings changed for the dominion of laws, and the dominion of priests giving way to the dominion of reason and conscience.
Be encouraged, all ye friends of freedom, and writers in its defence! The times are auspicious. Your labours have not been in vain. Behold kingdoms, admonished by you, starting from sleep, breaking their fetters, and claiming justice from their oppressors! Behold, the light you have struck out, after setting America free, reflected to France, and there kindled into a blaze that lays despotism in ashes, and warms and illuminates Europe!
Tremble all ye oppressors of the world! Take warning all ye supporters of slavish governments, and slavish hierarchies! Call no more (absurdly and wickedly) reformation, innovation. You cannot now hold the world in darkness. Struggle no longer against increasing light and liberality. Restore to mankind their rights; and consent to the correction of abuses, before they and you are destroyed together.
[* ]It has been unfortunate for the Dissenters that, in their late applications for a repeal of the Test Laws, they have been opposed by Mr. Pitt. He has contended that, on account of their not believing and worshipping as the Church of England does, they ought to be excluded from that eligibility to public offices which is the right of other citizens, and consequently denied a complete toleration; acknowledging, however, their integrity and respectability, but reckoning it only the more necessary on that account to defend the national church against them. Such sentiments in these times can do no honour to any man, much less to a son of the late Lord Chatham, whose opinion of toleration and Protestant Dissenters may be learnt from the following account.
In 1769 and 1772, the ministers among the Dissenters applied to Parliament for relief from the obligation they were then under to subscribe the doctrinal articles of the Church of England in order to be entitled to a toleration, and both times succeeded in the House of Commons, in consequence of Lord North’s neutrality, but were defeated in the House of Lords, in consequence of an opposition from the Episcopal bench. They persevered, however; the bishops repented; and a third application proved successful in both houses. In the debate occasioned in the House of Lords by the second application, Dr. Drummond, the archbishop of York, having called the dissenting ministers “men of close ambition,” Lord Chatham said, that this was judging uncharitably; and that whoever brought such a charge against them, without proof, defamed. Here he paused; and then went on—
The dissenting ministers are represented as men of close ambition. They are so, my lords; and their ambition is to keep close to the college of fishermen, not of cardinals, and to the doctrine of inspired apostles, not to the decrees of interested and aspiring bishops. They contend for a spiritual creed, and scriptural worship. We have a Calvinistic creed, a popish liturgy, and an Arminian clergy. The Reformation has laid open the scriptures to all. Let not the bishops shut them again. Laws in support of ecclesiastical power are pleaded for, which it would shock humanity to execute. It is said, that religious sects have done great mischief, when they were not kept under restraint: but history affords no proof that sects have ever been mischievous, when they were not oppressed and persecuted by the ruling church. See the Parliamentary Debates, 1772.
In one of his letters to me, not long after this debate, dated Burton-Pynsent, January 16, 1773, he expresses himself in the following words: In writing to you, it is impossible the mind should not go of itself to that most interesting of all objects to fallible men—toleration. Be assured, that on this sacred and unalienable right of mankind, and bulwark of truth, my warm wishes will always keep pace with your own. Happy, if the times had allowed us to add hopes to our wishes.
Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). Chapter: Opinion against the Constitutionality of a National Bank: Opinion as to the Constitutionality of the Bank of the United States
Accessed from oll.libertyfund.org/title/669/206300 on 2010-02-10
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
February 15, 1791
February 23, 1791
Alexander Hamilton served as President Washington’s secre-tary of the treasury. One of his early legislative proposals was for the formation of a Bank of the United States. The bank would take deposits from and lend money to the federal government, as well as establish a common currency for use in commerce between the states and between American and foreign companies and governments. The new nation had no such bank at this time. Many supported the idea as a means by which to encourage commerce and bind the states together. Others opposed it as an unconstitutional exercise of federal power and a threat to the states and their people. Washington, a careful man, sought opinions on the proposal’s constitutionality from his secretary of state (Thomas Jefferson) and his attorney general (Edmund Randolph) as well as Hamilton. The opinions of Jefferson and Hamilton, reproduced here, flesh out questions of how far the Constitution’s Necessary and Proper Clause expands the powers expressly granted to the federal government and how far the central government’s power of regulating commerce extended.
The bill for establishing a National Bank undertakes among other things:—
I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.
The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.
It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are “necessary,” not those which are merely “convenient” for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory.
But let us examine this convenience and see what it is. The report on this subject, page 3, states the only general convenience to be, the preventing the transportation and re-transportation of money between the States and the treasury (for I pass over the increase of circulating medium, ascribed to it as a want, and which, according to my ideas of paper money, is clearly a demerit). Every State will have to pay a sum of tax money into the treasury; and the treasury will have to pay, in every State, a part of the interest on the public debt, and salaries to the officers of government resident in that State. In most of the States there will still be a surplus of tax money to come up to the seat of government for the officers residing there. The payments of interest and salary in each State may be made by treasury orders on the State collector. This will take up the great export of the money he has collected in his State, and consequently prevent the great mass of it from being drawn out of the State. If there be a balance of commerce in favor of that State against the one in which the government resides, the surplus of taxes will be remitted by the bills of exchange drawn for that commercial balance. And so it must be if there was a bank. But if there be no balance of commerce, either direct or circuitous, all the banks in the world could not bring up the surplus of taxes, but in the form of money. Treasury orders then, and bills of exchange may prevent the displacement of the main mass of the money collected, without the aid of any bank; and where these fail, it cannot be prevented even with that aid.
Perhaps, indeed, bank bills may be a more convenient vehicle than treasury orders. But a little difference in the degree of convenience, cannot constitute the necessity which the constitution makes the ground for assuming any non-enumerated power.
Besides; the existing banks will, without a doubt, enter into arrangements for lending their agency, and the more favorable, as there will be a competition among them for it; whereas the bill delivers us up bound to the national bank, who are free to refuse all arrangement, but on their own terms, and the public not free, on such refusal, to employ any other bank. That of Philadelphia, I believe, now does this business, by their post-notes, which, by an arrangement with the treasury, are paid by any State collector to whom they are presented. This expedient alone suffices to prevent the existence of that necessity which may justify the assumption of a non-enumerated power as a means for carrying into effect an enumerated one. The thing may be done, and has been done, and well done, without this assumption; therefore, it does not stand on that degree of necessity which can honestly justify it.
It may be said that a bank whose bills would have a currency all over the States, would be more convenient than one whose currency is limited to a single State. So it would be still more convenient that there should be a bank, whose bills should have a currency all over the world. But it does not follow from this superior conveniency, that there exists anywhere a power to establish such a bank; or that the world may not go on very well without it.
Can it be thought that the Constitution intended that for a shade or two of convenience, more or less, Congress should be authorized to break down the most ancient and fundamental laws of the several States; such as those against Mortmain, the laws of Alienage, the rules of descent, the acts of distribution, the laws of escheat and forfeiture, the laws of monopoly? Nothing but a necessity invincible by any other means, can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence. Will Congress be too straitlaced to carry the Constitution into honest effect, unless they may pass over the foundation-laws of the State government for the slightest convenience of theirs?
The negative of the President is the shield provided by the Constitution to protect against the invasions of the legislature: 1. The right of the Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection.
It must be added, however, that unless the President’s mind on a view of everything which is urged for and against this bill, is tolerably clear that it is unauthorized by the Constitution; if the pro and the con hang so even as to balance his judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion. It is chiefly for cases where they are clearly misled by error, ambition, or interest, that the Constitution has placed a check in the negative of the President.
The Secretary of the Treasury having perused with attention the papers containing the opinions of the Secretary of State and Attorney-General, concerning the constitutionality of the bill for establishing a National Bank, proceeds, according to the order of the President, to submit the reasons which have induced him to entertain a different opinion.
It will naturally have been anticipated, that in performing this task, he would feel uncommon solicitude. Personal considerations alone, arising from the reflection that the measure originated with him, would be sufficient to produce it. The sense which he has manifested of the great importance of such an institution to the successful administration of the department under his particular care, and an expectation of serious ill consequences to result from a failure of the measure, do not permit him to be without anxiety on public accounts. But the chief solicitude arises from a firm persuasion, that principles of construction like those espoused by the Secretary of State and Attorney-General, would be fatal to the just and indispensable authority of the United States.
In entering upon the argument, it ought to be premised that the objections of the Secretary of State and Attorney-General are founded on a general denial of the authority of the United States to erect corporations. The latter, indeed, expressly admits, that if there be any thing in the bill which is not warranted by the Constitution, it is the clause of incorporation.
Now it appears to the Secretary of the Treasury that this general principle is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, namely: That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.
This principle, in its application to government in general, would be admitted as an axiom; and it will be incumbent upon those who may incline to deny it, to prove a distinction, and to show that a rule which, in the general system of things, is essential to the preservation of the social order, is inapplicable to the United States.
The circumstance that the powers of sovereignty are in this country divided between the National and State governments, does not afford the distinction required. It does not follow from this, that each of the portion of powers delegated to the one or to the other, is not sovereign with regard to its proper objects. It will only follow from it, that each has sovereign power as to certain things, and not as to other things. To deny that the government of the United States has sovereign power, as to its declared purposes and trusts, because its power does not extend to all cases, would be equally to deny that the State governments have sovereign power in any case, because their power does not extend to every case. The tenth section of the first article of the Constitution exhibits a long list of very impor-tant things which they may not do. And thus the United States would furnish the singular spectacle of a political society without sovereignty, or of a people governed, without government.
If it would be necessary to bring proof to a proposition so clear, as that which affirms that the powers of the federal government, as to its objects, were sovereign, there is a clause of its Constitution which would be decisive. It is that which declares that the Constitution, and the laws of the United States made in pursuance of it, and all treaties made, or which shall be made, under their authority, shall be the supreme law of the land. The power which can create the supreme law of the land in any case, is doubtless sovereign as to such case.
This general and indisputable principle puts at once an end to the abstract question, whether the United States have power to erect a corporation; that is to say, to give a legal or artificial capacity to one or more persons, distinct from the natural. For it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects intrusted to the management of the government. The difference is this: where the authority of the government is general, it can create corporations in all cases; where it is confined to certain branches of legislation, it can create corporations only in those cases.
Here then, as far as concerns the reasonings of the Secretary of State and the Attorney General, the affirmative of the constitutionality of the bill might be permitted to rest. It will occur to the President, that the principle here advanced has been untouched by either of them.
For a more complete elucidation of the point, nevertheless, the arguments which they had used against the power of the government to erect corporations, however foreign they are to the great and fundamental rule which has been stated, shall be particularly examined. And after showing that they do not tend to impair its force, it shall also be shown that the power of incorporation, incident to the government in certain cases, does fairly extend to the particular case which is the object of the bill.
The first of these arguments is, that the foundation of the Constitution is laid on this ground: “That all powers not delegated the United States by the Constitution, nor prohibited to it by the States, are reserved for the States, or to the people.” Whence it is meant to be inferred, that Congress can in no case exercise any power not included in those not enumerated in the Constitution. And it is affirmed, that the power of erecting a corporation is not included in any of the enumerated powers.
The main proposition here laid down, in its true signification is not to be questioned. It is nothing more than a consequence of this republican maxim, that all government is a delegation of power. But how much is delegated in each case, is a question of fact, to be made out by fair reasoning and construction, upon the particular provisions of the Constitution, taking as guides the general principles and general ends of governments.
It is not denied that there are implied, as well as express powers, and that the former are as effectually delegated as the latter. And for the sake of accuracy it shall be mentioned, that there is another class of powers, which may be properly denominated resulting powers. It will not be doubted, that if the United States should make a conquest of any of the territories of its neighbors, they would possess sovereign jurisdiction over the conquered territory. This would be rather a result, from the whole mass of the powers of the government, and from the nature of political society, than a consequence of either of the powers specially enumerated.
But be this as it may, it furnishes a striking illustration of the general doctrine contended for; it shows an extensive case, in which a power of erecting corporations is either implied in, or would result from, some or all of the powers vested in the national government. The jurisdiction acquired over such conquered country would certainly be competent to any species of legislation.
To return:—It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be, in this, as in every other case, whether the mean to be employed, or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the States, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage. . . .
Through this mode of reasoning respecting the right of employing all the means requisite to the execution of the specified powers of the government, it is objected, that none but necessary and proper means are to be employed; and the Secretary of State maintains, that no means are to be considered as necessary but those without which the grant of the power would be nugatory. Nay, so far does he go in his restrictive interpretation of the word, as even to make the case of necessity which shall warrant the constitutional exercise of the power to depend on casual and temporary circumstances; an idea which alone refutes the construction. The expediency of exercising a particular power, at a particular time, must, indeed, depend on circumstances; but the constitutional right of exercising it must be uniform and invariable, the same to-day as to-morrow.
All the arguments, therefore, against the constitutionality of the bill derived from the accidental existence of certain State banks,—institutions which happen to exist to-day, and, for aught that concerns the government of the United States, may disappear to-morrow,—must not only be rejected as fallacious, but must be viewed as demonstrative that there is a radical source of error in the reasoning.
It is essential to the being of the national government, that so erroneous a conception of the meaning of the word necessary should be exploded.
It is certain, that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing. The imagination can be at no loss for exemplifications of the use of the word in this sense. And it is the true one in which it is to be understood as used in the Constitution. The whole turn of the clause containing it indicates, that it was the intent of the Convention, by that clause, to give a liberal latitude to the exercise of the specified powers. The expressions have peculiar comprehensiveness. They are, “to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.”
To understand the word as the Secretary of State does, would be to depart from its obvious and popular sense, and to give it a restrictive operation, an idea never before entertained. It would be to give it the same force as if the word absolutely or indispensably had been prefixed to it.
Such a construction would beget endless uncertainty and embarrassment. The cases must be palpable and extreme, in which it could be pronounced, with certainty, that a measure was absolutely necessary, or one, without which, the exercise of a given power would be nugatory. There are few measures of any government which would stand so severe a test. To insist upon it, would be to make the criterion of the exercise of any implied power, a case of extreme necessity; which is rather a rule to justify the overleaping of the bounds of constitutional authority, than to govern the ordinary exercise of it.
It may be truly said of every government, as well as of that of the United States, that it has only a right to pass such laws as are necessary and proper to accomplish the objects intrusted to it. For no government has a right to do merely what it pleases. Hence, by a process of reasoning similar to that of the Secretary of State, it might be proved that neither of the State governments has a right to incorporate a bank. It might be shown that all the public business of the state could be performed without a bank, and inferring thence that it was unnecessary, it might be argued that it could not be done, because it is against the rule which has been just mentioned. A like mode of reasoning would prove that there was no power to incorporate the inhabitants of a town, with a view to a more perfect police. For it is certain that an incorporation may be dispensed with, though it is better to have one. It is to be remembered that there is no express power in any State constitution to erect corporations.
The degree in which a measure is necessary, can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. The relation between the measure and the end; between the nature of the mean employed towards the execution of a power, and the object of that power, must be the criterion of constitutionality, not the more or less of necessity or utility.
The practice of the government is against the rule of construction advocated by the Secretary of State. Of this, the Act concerning light-houses, beacons, buoys, and public piers, is a decisive example. This, doubtless, must be referred to the powers of regulating trade, and is fairly relative to it. But it cannot be affirmed that the exercise of that power in this instance was strictly necessary, or that the power itself would be nugatory, without that of regulating establishments of this nature.
This restrictive interpretation of the word necessary is also contrary to this sound maxim of construction; namely, that the powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defence, &c., ought to be construed liberally in advancement of the public good. This rule does not depend on the particular form of a government, or on the particular demarkation of the boundaries of its powers, but on the nature and objects of government itself. The means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means. Hence, consequently, the necessity and propriety of exercising the authorities intrusted to a government on principles of liberal construction.
The Attorney-General admits the rule, but takes a distinction between a State and the Federal Constitution. The latter, he thinks, ought to be construed with greater strictness, because there is more danger of error in defining partial than general powers. But the reason of the rule forbids such a distinction. This reason is, the variety and extent of public exigencies, a far greater proportion of which, and of a far more critical kind, are objects of National than of State administration. The greater danger of error, as far as it is supposable, may be a prudential reason for caution in practice, but it cannot be a rule of restrictive interpretation.
In regard to the clause of the Constitution immedi-ately under consideration, it is admitted by the Attorney-General, that no restrictive effect can be ascribed to it. He defines the word necessary thus: “To be necessary is to be incidental, and may be denominated the natural means of executing a power.”
But while on the one hand the construction of the Secretary of State is deemed inadmissible, it will not be contended, on the other, that the clause in question gives any new or independent power. But it gives an explicit sanction to the doctrine of implied powers, and is equivalent to an admission of the proposition that the government, as to its specified powers and objects, has plenary and sovereign authority, in some cases paramount to the States; in others, co-ordinate with it. For such is the plain import of the declaration, that it may pass all laws necessary and proper to carry into execution those powers.
It is no valid objection to the doctrine to say, that it is calculated to extend the power of the general government throughout the entire sphere of State legislation. The same thing has been said, and may be said, with regard to every exercise of power by implication or construction.
The moment the literal meaning is departed from, there is a chance of error and abuse. And yet an adherence to the letter of its powers would at once arrest the motions of government. It is not only agreed, on all hands, that the exercise of constructive powers is indispensable, but every act which has been passed is more or less an exemplification of it. One has been already mentioned—that relating to light-houses, &c.—that which declares the power of the President to remove officers at pleasure, acknowledges the same truth in another and a signal instance.
The truth is, that difficulties on this point are inherent in the nature of the Federal Constitution; they result inevitably from a division of the legislative power. The consequence of this division is, that there will be cases clearly within the power of the national government; others, clearly without its powers; and a third class, which will leave room for controversy and difference of opinion, and concerning which a reasonable latitude of judgment must be allowed.
But the doctrine which is contended for is not chargeable with the consequences imputed to it. It does not affirm that the national government is sovereign in all respects, but that it is sovereign to a certain extent; that is, to the extent of the objects of its specified powers.
It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion, which may materially assist the decision: Does the proposed measure a bridge a pre-existing right of any State or of any individual? If it does not, there is a strong presumption in favor of its constitutionality, and slighter relations to any declared object of the Constitution may be permitted to turn the scale.
The general objections, which are to be inferred from the reasonings of the Secretary of State and Attorney-General, to the doctrine which has been advanced, have been stated, and it is hoped satisfactorily answered. Those of a more particular nature shall now be examined.
The Secretary of State introduces his opinion with an observation, that the proposed incorporation undertakes to create certain capacities, properties, or attributes, which are against the laws of alienage, descents, escheat, and forfeiture, distribution and monopoly, and to confer a power to make laws paramount to those of the States. And nothing, says he, in another place, but necessity, invincible by other means, can justify such a prostration of laws, which constitute the pillars of our whole system of jurisprudence, and are the foundation laws of the State governments. If these are truly the foundation laws of the several States, then have most of them subverted their own foundations. For there is scarcely one of them which has not, since the establishment of its particular constitution, made material alterations in some of those branches of its jurisprudence, especially the law of descents. But it is not conceived how any thing can be called the fundamental law of a State government which is not established in its constitution, unalterable by the ordinary legislature. And, with regard to the question of necessity, it has been shown that this can only constitute a question of expediency, not of right.
To erect a corporation, is to substitute a legal or artifi-cial to a natural person, and where a number are concerned, to give them individuality. To that legal or artificial person, once created, the common law of every State, of itself, annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence.
It is certainly not accurate to say, that the erection of a corporation is against those different heads of the State laws; because it is rather to create a kind of person or entity, to which they are inapplicable, and to which the general rule of those laws assign a different regimen. The laws of alienage cannot apply to an artificial person, because it can have no country; those of descent cannot apply to it, because it can have no heirs; those of escheat are foreign from it, for the same reason; those of forfeiture, because it cannot commit a crime; those of distribution, because, though it may be dissolved, it cannot die.
As truly might it be said, that the exercise of the power of prescribing the rule by which foreigners shall be naturalized, is against the law of alienage, while it is, in fact, only to put them in a situation to cease to be the subject of that law. To do a thing which is against a law, is to do something which it forbids, or which is a violation of it.
But if it were even to be admitted that the erection of a corporation is a direct alteration of the stated laws, in the enumerated particulars, it would do nothing towards proving that the measure was unconstitutional. If the government of the United States can do no act which amounts to an alteration of a State law, all its powers are nugatory; for almost every new law is an alteration, in some way or other, of an old law, either common or statute.
There are laws concerning bankruptcy in some States. Some States have laws regulating the values of foreign coins. Congress are empowered to establish uniform laws concerning bankruptcy throughout the United States, and to regulate the values of foreign coins. The exercise of either of these powers by Congress, necessarily involves an alteration of the laws of those States.
Again. Every person, by the common law of each State, may export his property to foreign countries, at pleasure. But Congress, in pursuance of the power of regulating trade, may prohibit the exportation of commodities; in doing which, they would alter the common law of each State, in abridgment of individual right.
It can therefore never be good reasoning to say this or that act is unconstitutional, because it alters this or that law of a State. It must be shown that the act which makes the alteration is unconstitutional on other accounts; not because it makes the alteration.
There are two points in the suggestions of the Secretary of State, which have been noted, that are peculiarly incorrect. One is, that the proposed incorporation is against the laws of monopoly, because it stipulates an exclusive right of banking under the national authority; the other, that it gives power to the institution to make laws paramount to those of the States.
But, with regard to the first point: The bill neither prohibits any State from erecting as many banks as they please, nor any number of individuals from associating to carry on the business, and consequently, is free from the charge of establishing a monopoly; for monopoly implies a legal impediment to the carrying on of the trade by others than those to whom it is granted.
And with regard to the second point, there is still less foundation. The by-laws of such an institution as a bank can operate only on its own members—can only concern the disposition of its own property, and must essentially resemble the rules of a private mercantile partnership. They are expressly not to be contrary to law; and law must here mean the law of a State, as well as of the United States. There never can be a doubt, that a law of a corporation, if contrary to a law of a State, must be overruled as void, unless the law of the State is contrary to that of the United States, and then the question will not be between the law of the State and that of the corporation, but between the law of the State and that of the United States. . . .
Most of the arguments of the Secretary of State, which have not been considered in the foregoing remarks, are of a nature rather to apply to the expediency than to the constitutionality of the bill. They will, however, be noticed in the discussions which will be necessary in reference to the particular heads of the powers of the government which are involved in the question.
Those of the Attorney-General will now properly come under view.
His first objection is, that the power of incorporation is not expressly given to Congress. This shall be conceded, but in this sense only, that it is not declared in express terms that Congress may erect a corporation. But this cannot mean, that there are not certain express powers which necessarily include it. For instance, Congress have express power to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased, by consent of the legislature of the State in which the same shall be, for the erection of forts, arsenals, dock-yards, and other needful buildings. Here, then, is express power to exercise exclusive legislation, in all cases whatsoever, over certain places; that is, to do, in respect to those places, all that any government whatsoever may do. For language does not afford a more complete designation of sover-eign power than in those comprehensive terms. It is, in other words, a power to pass all laws whatsoever, and, consequently, to pass laws for erecting corporations, as well as for any other purpose which is the proper object of law in a free government.
Surely it can never be believed that Congress, with exclusive powers of legislation in all cases whatsoever, cannot erect a corporation within the district which shall become the seat of government, for the better regulation of its police. And yet there is an unqualified denial of the power to erect corporations in every case, on the part both of the Secretary of State and of the Attorney-General; the former, indeed, speaks of that power in these emphatical terms: That it is a right remaining exclusively with the States.
As far, then, as there is an express power to do any particular act of legislation, there is an express one to erect a corporation in the case above described. But, accurately speaking, no particular power is more than that implied in a general one. Thus the power to lay a duty on a gallon of rum is only a particular implied in the general power to lay and collect taxes, duties, imposts, and excises. This serves to explain in what sense it may be said that Congress have not an express power to make corporations.
This may not be an improper place to take notice of an argument which was used in debate in the House of Representatives. It was there argued, that if the Constitution intended to confer so important a power as that of erecting corporations, it would have been expressly mentioned. But the case which has been noticed is clearly one in which such a power exists, and yet without any specification or express grant of it, further than as every particular implied in a general power can be said to be so granted.
But the argument itself is founded upon an exaggerated and erroneous conception of the nature of the power. It has been shown that it is not of so transcendent a kind as the reasoning supposes, and that, viewed in a just light, it is a mean, which ought to have been left to implication, rather than an end, which ought to have been expressly granted.
Having observed that the power of erecting corporations is not expressly granted to Congress, the Attorney-General proceeds thus:—
“If it can be exercised by them, it must be—
To be implied in the nature of the federal government, says he, would beget a doctrine so indefinite as to grasp at every power.
This proposition, it ought to be remarked, is not precisely, or even substantially, that which has been relied upon. The proposition relied upon is, that the specified powers of Congress are in their nature sovereign. That it is incident to sovereign power to erect corporations, and that therefore Congress have a right, within the sphere and in relation to the objects of their power, to erect corporations. It shall, however, be supposed that the Attorney-General would consider the two propositions in the same light, and that the objection made to the one would be made to the other.
To this objection an answer has been already given. It is this, that the doctrine is stated with this express qualification, that the right to erect corporations does only extend to cases and objects within the sphere of the specified powers of the government. A general legislative authority implies a power to erect corporations in all cases. A particular legislative power implies authority to erect corporations in relation to cases arising under that power only. Hence the affirming that, as incident to sovereign power, Congress may erect a corporation in relation to the collection of their taxes, is no more than to affirm that they may do whatever else they please,—than the saying that they have a power to regulate trade, would be to affirm that they have a power to regulate religion; or than the maintaining that they have sovereign power as to taxation, would be to maintain that they have sovereign power as to every thing else.
The Attorney-General undertakes in the next place to show, that the power of erecting corporations is not involved in any of the specified powers of legislation confided to the national government. In order to this, he has attempted an enumeration of the particulars, which he supposes to be comprehended under the several heads of the powers to lay and collect taxes, &c.; to borrow money on the credit of the United States; to regulate commerce with sovereign nations; between the States, and with the Indian tribes; to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. The design of which enumeration is to show, what is included under those different heads of power, and negatively, that the power of erecting corporations is not included.
The truth of this inference or conclusion must depend on the accuracy of the enumeration. If it can be shown that the enumeration is defective, the inference is destroyed. To do this will be attended with no difficulty.
The heads of the power to lay and collect taxes are stated to be:
This enumeration is liable to a variety of objections. It omits in the first place, the pledging or mortgaging of a fund for the security of the money lent, an usual, and in most cases an essential ingredient.
The idea of a stipulation of an interest or no interest is too confined. It should rather have been said, to stipulate the consideration of the loan. Individuals often borrow on considerations other than the payment of interest, so may governments, and so they often find it necessary to do. Every one recollects the lottery tickets and other douceurs often given in Great Britain as collateral inducements to the lending of money to the government. There are also frequently collateral conditions, which the enumeration does not contemplate. Every contract which has been made for moneys borrowed in Holland, induces stipulations that the sum due shall be free from taxes, and from sequestration in time of war, and mortgages all the land and property of the United States for the reimbursement.
It is also known that a lottery is a common expedient for borrowing money, which certainly does not fall under either of the enumerated heads.
The heads of the power to regulate commerce with foreign nations, are stated to be:
This enumeration is far more exceptionable than either of the former. It omits every thing that relates to the citizens’ vessels, or commodities of the United States.
The following palpable omissions occur at once:
The last enumeration relates to the power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States.
The heads of this power are said to be:
The idea of exerting an ownership over the territory or other property of the United States, is particularly indefinite and vague. It does not at all satisfy the conception of what must have been intended by a power to make all needful rules and regulations, nor would there have been any use for a special clause, which authorized nothing more. For the right of exerting an ownership is implied in the very definition of property. It is admitted, that in regard to the western territory, something more is intended; even the institution of a government, that is, the creation of a body politic, or corporation of the highest nature; one which, in its maturity, will be able itself to create other corporations. Why, then, does not the same clause authorize the erection of a corporation, in respect to the regulation or disposal of any other of the property of the United States?
This idea will be enlarged upon in another place.
Hence it appears, that the enumerations which have been attempted by the Attorney-General, are so imperfect, as to authorize no conclusion whatever; they therefore have no tendency to disprove that each and every of the powers, to which they relate, includes that of erecting corporations, which they certainly do, as the subsequent illustrations will more and more evince.
It is presumed to have been satisfactorily shown in the course of the preceding observations:
And lastly, that the right to exercise such a power in certain cases is unequivocally granted in the most positive and comprehensive terms. To all which it only remains to be added, that such a power has actually been exercised in two very eminent instances; namely, in the erection of two governments; one northwest of the River Ohio, and the other southwest—the last independent of any antecedent compact. And these result in a full and complete demonstration, that the Secretary of State and Attorney-General are mistaken when they deny generally the power of the national government to erect corporations.
It shall now be endeavored to be shown that there is a power to erect one of the kind proposed by the bill. This will be done by tracing a natural and obvious relation between the institution of a bank and the objects of several of the enumerated powers of the government; and by showing that, politically speaking, it is necessary to the effectual execution of one or more of those powers.
In the course of this investigation, various instances will be stated, by way of illustration of a right to erect corporations under those powers.
Some preliminary observations may be proper.
The proposed bank is to consist of an association of persons, for the purpose of creating a joint capital, to be employed chiefly and essentially in loans. So far the object is not only lawful, but it is the mere exercise of a right which the law allows to every individual. The Bank of New-York, which is not incorporated, is an example of such an association. The bill proposes in addition, that the government shall become a joint proprietor in this undertaking, and that it shall permit the bills of the company, payable on demand, to be receivable in its revenues; and stipulates that it shall not grant privileges, similar to those which are to be allowed to this company, to any others. All this is incontrovertibly within the compass of the discretion of the government. The only question is, whether it has a right to incorporate this company, in order to enable it the more effectually to accomplish ends which are in themselves lawful.
To establish such a right, it remains to show the relation of such an institution to one or more of the specified powers of the government. Accordingly it is affirmed that it has a relation, more or less direct, to the power of collecting taxes, to that of borrowing money, to that of regulating trade between the States, and to those of raising and maintaining fleets and armies. To the two former the relation may be said to be immediate; and in the last place it will be argued, that it is clearly within the provision which authorizes the making of all needful rules and regulations concerning the property of the United States, as the same has been practised upon by the government.
A bank relates to the collection of taxes in two ways—indirectly, by increasing the quantity of circulating medium and quickening circulation, which facilitates the means of paying directly, by creating a convenient species of medium in which they are to be paid.
To designate or appoint the money or thing in which taxes are to be paid, is not only a proper, but a necessary exercise of the power of collecting them. Accordingly Congress, in the law concerning the collection of the duties on imposts and tonnage, have provided that they shall be paid in gold and silver. But while it was an indispensable part of the work to say in what they should be paid, the choice of the specific thing was mere matter of discretion. The payment might have been required in the commodities themselves. Taxes in kind, however ill-judged, are not without precedents, even in the United States; or it might have been in the paper money of the several States, or in the bills of the Bank of North America, New-York and Massachusetts, all or either of them; or it might have been in bills issued under the authority of the United States.
No part of this can, it is presumed, be disputed. The appointment, then, of the money or thing in which the taxes are to be paid, is an incident to the power of collection. And among the expedients which may be adopted, is that of bills issued under the authority of the United States.
Now the manner of issuing these bills is again matter of discretion. The government might doubtless proceed in the following manner:
It might provide that they should be issued under the direction of certain officers, payable on demand; and, in order to support their credit, and give them a ready circulation, it might, besides giving them a currency in its taxes, set apart, out of any moneys in its treasury, a given sum, and appropriate it, under the direction of those officers, as a fund for answering the bills, as presented for payment.
The constitutionality of all this would not admit of a question, and yet it would amount to the institution of a bank, with a view to the more convenient collection of taxes. For the simplest and most precise idea of a bank is, a deposit of coin, or other property, as a fund for circulating a credit upon it, which is to answer the purpose of money. That such an arrangement would be equivalent to the establishment of a bank, would become obvious, if the place where the fund to be set apart was kept should be made a receptacle of the moneys of all other persons who should incline to deposit them there for safe-keeping; and would become still more so, if the officers charged with the direction of the fund were authorized to make discounts at the usual rate of interest, upon good security. To deny the power of the government to add these ingredients to the plan, would be to refine away all government.
A further process will still more clearly illustrate the point. Suppose, when the species of bank which has been described was about to be instituted, it was to be urged that, in order to secure to it a due degree of confidence, the fund ought not only to be set apart and appropriated generally, but ought to be specifically vested in the officers who were to have the direction of it, and in their successors in office, to the end that it might acquire the character of private property, incapable of being resumed without a violation of the sanctions by which the rights of property are protected, and occasioning more serious and general alarm—the apprehension of which might operate as a check upon the government. Such a proposition might be opposed by arguments against the expediency of it, or the solidity of the reason assigned for it, but it is not conceivable what could be urged against its constitutionality; and yet such a disposition of the thing would amount to the erection of a corporation; for the true definition of a corporation seems to be this: It is a legal person, or a person created by act of law, consisting of one or more natural persons authorized to hold property, or a franchise in succession, in a legal, as contradistinguished from natural, capacity.
Let the illustration proceed a step further. Suppose a bank of the nature which has been described, with or without incorporation, had been instituted, and that experience had evinced, as it probably would, that, being wholly under a public direction, it possessed not the confidence requisite to the credit of the bills. Suppose, also, that, by some of those adverse conjunctures which occasionally attend nations, there had been a very great drain of the specie of the country, so as not only to cause general distress for want of an adequate medium of circulation, but to produce, in consequence of that circumstance, considerable defalcations in the public revenues. Suppose, also, that there was no bank instituted in any State; in such a posture of things, would it not be most manifest, that the incorporation of a bank like that proposed by the bill would be a measure immediately relative to the effectual collection of the taxes, and completely within the province of the sovereign power of providing, by all laws necessary and proper, for that collection? If it be said, that such a state of things would render that necessary, and therefore constitutional, which is not so now, the answer to this, and a solid one it doubtless is, must still be that which has been already stated—circumstances may affect the expediency of the measure, but they can neither add to nor diminish its constitutionality.
A bank has a direct relation to the power of borrow-ing money, because it is an usual, and in sudden emergencies an essential, instrument in the obtaining of loans to government.
A nation is threatened with a war; large sums are wanted on a sudden to make the requisite preparations. Taxes are laid for the purpose, but it requires time to obtain the benefit of them. Anticipation is indispensable. If there be a bank, the supply can at once be had. If there be none, loans from individuals must be sought. The progress of these is often too slow for the exigency; in some situations they are not practicable at all. Frequently, when they are, it is of great consequence to be able to anticipate the product of them by advance from a bank.
The essentiality of such an institution as an instrument of loans, is exemplified at this very moment. An Indian expedition is to be prosecuted. The only fund, out of which the money can arise, consistently with the public engagements, is a tax, which only begins to be collected in July next. The preparations, however, are instantly to be made. The money must, therefore, be borrowed—and of whom could it be borrowed if there were no public banks?
It happens that there are institutions of this kind, but if there were none, it would be indispensable to create one.
Let it then be supposed that the necessity existed, (as but for a casualty would be the case,) that proposals were made for obtaining a loan; that a number of individuals came forward and said, we are willing to accommodate the government with the money; with what we have in hand, and the credit we can raise upon it, we doubt not of being able to furnish the sum required; but in order to this, it is indispensable that we should be incorporated as a bank. This is essential towards putting it in our power to do what is desired, and we are obliged on that account to make it the consideration or condition of the loan.
Can it be believed that a compliance with this proposition would be unconstitutional? Does not this alone evince the contrary? It is a necessary part of a power to borrow, to be able to stipulate the consideration or conditions of a loan. It is evident, as has been remarked elsewhere, that this is not confined to the mere stipulation of a franchise. If it may, and it is not perceived why it may not, then the grant of a corporate capacity may be stipulated as a consideration of the loan. There seems to be nothing unfit or foreign from the nature of the thing in giving individuality, or a corporate capacity to a number of persons, who are willing to lend a sum of money to the government, the better to enable them to do it, and make them an ordinary instrument of loans in future emergencies of the state. But the more general view of the subject is still more satisfactory. The legislative power of borrowing money, and of making all laws necessary and proper for carrying into execution that power, seems obviously competent to the appointment of the organ, through which the abilities and wills of individuals may be most efficaciously exerted for the accommodation of the government by loans.
The Attorney-General opposes to this reasoning the following observation:—“Borrowing money presupposes the accumulation of a fund to be lent, and is secondary to the creation of an ability to lend.” This is plausible in theory, but is not true in fact. In a great number of cases, a previous accumulation of a fund equal to the whole sum required does not exist. And nothing more can be actually presupposed, than that there exists resources, which, put into activity to the greatest advantage by the nature of the operation with the government, will be equal to the effect desired to be produced. All the provisions and operations of government must be presumed to contemplate as they really are.
The institution of a bank has also a natural relation to the regulation of trade between the States, in so far as it is conducive to the creation of a convenient medium of exchange between them, and to the keeping up a full circulation, by preventing the frequent displacement of the metals in reciprocal remittances. Money is the very hinge on which commerce turns. And this does not merely mean gold and silver; many other things have served the purpose, with different degrees of utility. Paper has been extensively employed.
It cannot, therefore, be admitted, with the Attorney-General, that the regulation of trade between the States, as it concerns the medium of circulation and exchange, ought to be considered as confined to coin. It is even supposable that the whole, or the greatest part, of the coin of the country might be carried out of it.
The Secretary of State objects to the relation here insisted upon, by the following mode of reasoning:—To erect a bank, says he, and to regulate commerce, are very different acts. He who creates a bank, creates a subject of commerce; so does he who makes a bushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulate commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling.
This making the regulation of commerce to consist in prescribing rules for buying and selling—this, indeed, is a species of regulation of trade, but is one which falls more aptly within the province of the local jurisdictions than within that of the general government, whose care they must be presumed to have been intended to be directed to those general political arrangements concerning trade on which its aggregate interests depend, rather than to the details of buying and selling. Accordingly, such only are the regulations to be found in the laws of the United States, whose objects are to give encouragement to the enterprise of our own merchants, and to advance our navigation and manufactures. And it is in reference to these general relations of commerce, that an establishment which furnishes facilities to circulation, and a convenient medium of exchange and alienation, is to be regarded as a regulation of trade.
The Secretary of State further argues, that if this was a regulation of commerce, it would be void, as extending as much to the internal commerce of every State as to its external. But what regulation of commerce does not extend to the internal commerce of every State? What are all the duties upon imported articles, amounting to prohibitions, but so many bounties upon domestic manufactures, affecting the interests of different classes of citizens, in different ways? What are all the provisions in the Coasting Act which relate to the trade between district and district of the same State? In short, what regulation of trade between the States but must affect the internal trade of each State? What can operate upon the whole but must extend to every part?
The relation of a bank to the execution of the powers that concern the common defence, has been anticipated. It has been noted, that, at this very moment, the aid of such an institution is essential to the measures to be pursued for the protection of our frontiers.
It now remains to show, that the incorporation of a bank is within the operation of the provision which authorizes Congress to make all needful rules and regulations concerning the property of the United States. But it is previously necessary to advert to a distinction which has been taken by the Attorney-General.
He admits that the word property may signify personal property, however acquired, and yet asserts that it cannot signify money arising from the sources of revenue pointed out in the Constitution, “because,” says he, “the disposal and regulation of money is the final cause for raising it by taxes.”
But it would be more accurate to say that the object to which money is intended to be applied is the final cause for raising it, than that the disposal and regulation of it is such.
The support of government—the support of troops for the common defence—the payment of the public debt, are the true final causes for raising money. The disposition and regulation of it, when raised, are the steps by which it is applied to the ends for which it was raised, not the ends themselves. Hence, therefore, the money to be raised by taxes, as well as any other personal property, must be supposed to come within the meaning, as they certainly do within the letter, of authority to make all needful rules and regulations concerning the property of the United States.
A case will make this plainer. Suppose the public debt discharged, and the funds now pledged for it liberated. In some instances it would be found expedient to repeal the taxes; in others, the repeal might injure our own indus-try, our agriculture and manufactures. In these cases they would, of course, be retained. Here, then, would be moneys arising from the authorized sources of revenue, which would not fall within the rule by which the Attorney-General endeavors to except them from other personal property, and from the operation of the clause in question. The moneys being in the coffers of government, what is to hinder such a disposition to be made of them as is contemplated in the bill; or what an incorporation of the parties concerned, under the clause which has been cited?
It is admitted, that with regard to the western territory they give a power to erect a corporation—that is, to institute a government; and by what rule of construction can it be maintained, that the same words in a constitution of government will not have the same effect when applied to one species of property as to another, as far as the subject is capable of it?—Or that a legislative power to make all needful rules and regulations, or to pass all laws necessary and proper, concerning the public property, which is admitted to authorize an incorporation in one case, will not authorize it in another?—will justify the institution of a government over the western territory, and will not justify the incorporation of a bank for the more useful management of the moneys of the United States? If it will do the last, as well as the first, then, under this provision alone, the bill is constitutional, because it contemplates that the United States shall be joint proprietors of the stock of the bank.
There is an observation of the Secretary of State to this effect, which may require notice in this place:—Congress, says he, are not to lay taxes ad libitum, for any purpose they please, but only to pay the debts or provide for the welfare of the Union. Certainly no inference can be drawn from this against the power of applying their money for the institution of a bank. It is true that they cannot without breach of trust lay taxes for any other purpose than the general welfare; but so neither can any other government. The welfare of the community is the only legitimate end for which money can be raised on the community. Congress can be considered as under only one restriction which does not apply to other governments,—they cannot rightfully apply the money they raise to any purpose merely or purely local. But, with this exception, they have as large a discretion in relation to the application of money as any legislature whatever. The constitutional test of a right application must always be, whether it be for a purpose of general or local nature. If the former, there can be no want of constitutional power. The quality of the object, as how far it will really promote or not the welfare of the Union, must be matter of conscientious discretion, and the arguments for or against a measure in this light must be arguments concerning expediency or inexpediency, not constitutional right. Whatever relates to the general order of the finances, to the general interests of trade, &c., being general objects, are constitutional ones for the application of money.
A bank, then, whose bills are to circulate in all the revenues of the country, is evidently a general object, and, for that very reason, a constitutional one, as far as regards the appropriation of money to it. Whether it will really be a beneficial one or not, is worthy of careful examination, but is no more a constitutional point, in the particular referred to, than the question, whether the western lands shall be sold for twenty or thirty cents per acre.
A hope is entertained that it has, by this time, been made to appear, to the satisfaction of the President, that a bank has a natural relation to the power of collecting taxes—to that of regulating trade—to that of providing for the common defence—and that, as the bill under consideration contemplates the government in the light of a joint proprietor of the stock of the bank, it brings the case within the provision of the clause of the Constitution which immediately respects the property of the United States.
Under a conviction that such a relation subsists, the Secretary of the Treasury, with all deference, conceives, that it will result as a necessary consequence from the position, that all the specified powers of government are sovereign, as to the proper objects; that the incorporation of a bank is a constitutional measure; and that the objections taken to the bill, in this respect, are ill-founded.
But, from an earnest desire to give the utmost possible satisfaction to the mind of the President, on so delicate and important a subject, the Secretary of the Treasury will ask his indulgence, while he gives some additional illustrations of cases in which a power of erecting corporations may be exercised, under some of those heads of the specified powers of the government, which are alleged to include the right of incorporating a bank.
A power to make all needful rules and regulations concerning territory, has been construed to mean a power to erect a government. A power to regulate trade, is a power to make all needful rules and regulations concerning trade. Why may it not, then, include that of erecting a trading company, as well as, in other cases, to erect a government?
It is remarkable that the State conventions, who had proposed amendments in relation to this point, have most, if not all of them, expressed themselves nearly thus: Congress shall not grant monopolies, nor erect any company with exclusive advantages of commerce! Thus, at the same time, expressing their sense, that the power to erect trading companies or corporations was inherent in Congress, and objecting to it no further than as to the grant of exclusive privileges.
The Secretary entertains all the doubts which prevail concerning the utility of such companies, but he cannot fashion to his own mind a reason, to induce a doubt, that there is a constitutional authority in the United States to establish them. If such a reason were demanded, none could be given, unless it were this: That Congress cannot erect a corporation. Which would be no better than to say, they cannot do it, because they cannot do it—first presuming an inability, without reason, and then assigning that inability as the cause of itself. Illustrations of this kind might be multiplied without end. They shall, however, be pursued no further.
There is a sort of evidence on this point, arising from an aggregate view of the Constitution, which is of no inconsiderable weight: the very general power of laying and collecting taxes, and appropriating their proceeds—that of borrowing money indefinitely—that of coining money, and regulating foreign coins—that of making all needful rules and regulations respecting the property of the United States. These powers combined, as well as the reason and nature of the thing, speak strongly this language: that it is the manifest design and scope of the Constitution to vest in Congress all the powers requisite to the effectual administration of the finances of the United States. As far as concerns this object, there appears to be no parsimony of power.
To suppose, then, that the government is precluded from the employment of so usual and so important an instrument for the administration of its finances as that of a bank, is to suppose what does not coincide with the general tenor and complexion of the Constitution, and what is not agreeable to impressions that any new spectator would entertain concerning it.
Little less than a prohibitory clause can destroy the strong presumptions which result from the general aspect of the government. Nothing but demonstration should exclude the idea that the power exists.
In all questions of this nature, the practice of man-kind ought to have great weight against the theories of individuals.
The fact, for instance, that all the principal commercial nations have made use of trading corporations or companies, for the purpose of external commerce, is a satisfactory proof that the establishment of them is an incident to the regulation of the commerce.
This other fact, that banks are an usual engine in the administration of national finances, and an ordinary and the most effectual instrument of loan, and one which, in this country, has been found essential, pleads strongly against the supposition that a government, clothed with most of the most important prerogatives of sovereignty in relation to its revenues, its debts, its credits, its defence, its trade, its intercourse with foreign nations, is forbidden to make use of that instrument as an appendage to its own authority.
It has been stated as an auxiliary test of constitutional authority to try whether it abridges any pre-existing right of any State, or any individual. The proposed investigation will stand the most severe examination on this point. Each State may still erect as many banks as it pleases. Every individual may still carry on the banking business to any extent he pleases.
Another criterion may be this: whether the institution or thing has a more direct relation, as to its uses, to the objects of the reserved powers of the State governments than to those of the powers delegated by the United States. This rule, indeed, is less precise than the former; but it may still serve as some guide. Surely a bank has more reference to the objects intrusted to the national government than to those left to the care of the State governments. The common defence is decisive in this comparison.
It is presumed that nothing of consequence in the observations of the Secretary of State, and Attorney-General, has been left unnoticed.
There are, indeed, a variety of observations of the Secretary of State designed to show that the utilities ascribed to a bank, in relation to the collection of taxes, and to trade, could be obtained without it; to analyze which, would prolong the discussion beyond all bounds. It shall be forborne for two reasons. First, because the report concerning the bank, may speak for itself in this respect; and secondly, because all those observations are grounded on the erroneous idea that the quantum of necessity or utility is the test of a constitutional exercise of power.
One or two remarks only shall be made. One is, that he has taken no notice of a very essential advantage to trade in general, which is mentioned in the report, as peculiar to the existence of a bank circulation, equal in the public estimation to gold and silver. It is this that renders it unnecessary to lock up the money of the country, to accumulate for months sucessively, in order to the periodical payment of interest. The other is this: that his arguments to show that treasury orders and bills of exchange, from the course of trade, will prevent any considerable displacement of the metals, are founded on a particular view of the subject. A case will prove this. The sums collected in a State may be small in comparison with the debt due to it; the balance of its trade, direct and circuitous with the seat of government, may be even, or nearly so; here, then, without bank bills, which in that State answer the purpose of coin, there must be a displacement of the coin, in proportion to the difference between the sum collected in the State, and that to be paid in it. With bank bills, no such displacement would take place, or as far as it did, it would be gradual and insensible. In many other ways, also, would there be at least a temporary and inconvenient displacement of the coin, even where the course of trade would eventually return it to its proper channels.
The difference of the two situations in point of convenience to the treasury, can only be appreciated by one, who experiences the embarrassments of making provision for the payment of the interest on a stock, continually changing place in thirteen different places.
One thing which has been omitted, just occurs, although it is not very material to the main argument. The Secretary of State affirms that the bill only contemplates a repayment, not a loan, to the government. But here he is certainly mistaken. It is true the government invests in the stock of the bank a sum equal to that which it receives on loan. But let it be remembered, that it does not, therefore, cease to be a proprietor of the stock, which would be the case, if the money received back were in the nature of a payment. It remains a proprietor still, and will share in the profit or loss of the institution, according as the dividend is more or less than the interest it is to pay on the sum borrowed. Hence that sum is manifestly, and in the strictest sense, a loan.
[1. ] Though the Constitution controls the laws of Mortmain so far as to permit Congress itself to hold land for certain purposes, yet not so far as to permit them to communicate a similar right to other corporate bodies.
Lance Banning, Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004). Chapter: James Madison’s Speech on the Bank Bill 2 February 1791
Accessed from oll.libertyfund.org/title/875/63865 on 2010-02-10
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Mr. Madison began with a general review of the advantages and disadvantages of banks. The former he stated to consist in, first, the aids they afford to merchants who can thereby push their mercantile operations farther with the same capital. 2d. The aids to merchants in paying punctually the customs. 3d. Aids to the government in complying punctually with its engagements, when deficiencies or delays happen in the revenue. 4th. In diminishing usury. 5th. In saving the wear of the gold and silver kept in the vaults and represented by notes. 6th. In facilitating occasional remittances from different places where notes happen to circulate. The effect of the proposed bank, in raising the value of stock, he thought, had been greatly overrated. It would no doubt raise that of the stock subscribed into the bank; but could have little effect on stock in general, as the interest on it would remain the same, and the quantity taken out of the market would be replaced by bank stock.
The principal disadvantages consisted in, 1st. banishing the precious metals, by substituting another medium to perform their office: This effect was inevitable. It was admitted by the most enlightened patrons of banks, particularly by Smith on The Wealth of Nations. The common answer to the objection was, that the money banished was only an exchange for something equally valuable that would be imported in return. He admitted the weight of this observation in general, but doubted whether, in the present habits of this country, the returns would not be in articles of no permanent use to it. 2d. Exposing the public and individuals to all the evils of a run on the bank, which would be particularly calamitous in so great a country as this, and might happen from various causes, as false rumours, bad management of the institution, an unfavorable balance of trade from short crops, etc.
It was proper to be considered also that the most important of the advantages would be better obtained by several banks properly distributed than by a single one. The aids to commerce could only be afforded at or very near the seat of the bank. The same was true of aids to merchants in the payment of customs. Anticipations of the government would also be most convenient at the different places where the interest of the debt was to be paid. The case in America was different from that in England: the interest there was all due at one place, and the genius of the monarchy favored the concentration of wealth and influence at the metropolis.
He thought the plan liable to other objections: It did not make so good a bargain for the public as was due to its interests. The charter to the bank of England had been granted for 11 years only, and was paid for by a loan to the government on terms better than could be elsewhere got. Every renewal of the charter had in like manner been purchased; in some instances at a very high price. The same had been done by the banks of Genoa, Naples, and other like banks of circulation. The plan was unequal to the public creditors—it gave an undue preference to the holders of a particular denomination of the public debt and to those at and within reach of the seat of government. If the subscriptions should be rapid, the distant holders of paper would be excluded altogether.
In making these remarks on the merits of the bill, he had reserved to himself, he said, the right to deny the authority of Congress to pass it. He had entertained this opinion from the date of the Constitution. His impression might perhaps be the stronger because he well recollected that a power to grant charters of incorporation had been proposed in the general convention and rejected.
Is the power of establishing an incorporated bank among the powers vested by the Constitution in the legislature of the United States? This is the question to be examined.
After some general remarks on the limitations of all political power, he took notice of the peculiar manner in which the federal government is limited. It is not a general grant, out of which particular powers are excepted—it is a grant of particular powers only, leaving the general mass in other hands. So it had been understood by its friends and its foes, and so it was to be interpreted.
As preliminaries to a right interpretation, he laid down the following rules:
An interpretation that destroys the very characteristic of the government cannot be just.
Where a meaning is clear, the consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.
In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide.
Cotemporary and concurrent expositions are reasonable evidence of the meaning of the parties.
In admitting or rejecting a constructive authority, not only the degree of its incidentality to an express authority is to be regarded, but the degree of its importance also, since on this will depend the probability or improbability of its being left to construction.
Reviewing the Constitution with an eye to these positions, it was not possible to discover in it the power to incorporate a Bank. The only clauses under which such a power could be pretended, are either—
1. The power to lay and collect taxes to pay the debts and provide for the common defence and general welfare; Or,
2. The power to borrow money on the credit of the United States; Or,
3. The power to pass all laws necessary and proper to carry into execution those powers.
The bill did not come within the first power. It laid no tax to pay the debts, or provide for the general welfare. It laid no tax whatever. It was altogether foreign to the subject.
No argument could be drawn from the terms “common defence and general welfare.” The power as to these general purposes was limited to acts laying taxes for them; and the general purposes themselves were limited and explained by the particular enumeration subjoined. To understand these terms in any sense that would justify the power in question would give to Congress an unlimited power; would render nugatory the enumeration of particular powers; would supercede all the powers reserved to the state governments. These terms are copied from the Articles of Confederation; had it ever been pretended that they were to be understood otherwise than as here explained?
It had been said that “general welfare” meant cases in which a general power might be exercised by Congress without interfering with the powers of the States; and that the establishment of a National Bank was of this sort. There were, he said, several answers to this novel doctrine.
1. The proposed Bank would interfere so as indirectly to defeat a State Bank at the same place. 2. It would directly interfere with the rights of the states to prohibit as well as to establish banks and the circulation of bank notes. He mentioned a law of Virginia, actually prohibiting the circulation of notes payable to bearer. 3. Interference with the power of the states was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, altho it should interfere with the laws or even the constitution of the states. 4. If Congress could incorporate a Bank, merely because the act would leave the states free to establish banks also, any other incorporations might be made by Congress. They could incorporate companies of manufacturers, or companies for cutting canals, or even religious societies, leaving similar incorporations by the states, like state banks, to themselves. Congress might even establish religious teachers in every parish and pay them out of the Treasury of the United States, leaving other teachers unmolested in their functions. These inadmissible consequences condemned the controverted principle.
The case of the Bank established by the former Congress had been cited as a precedent. This was known, he said, to have been the child of necessity. It never could be justified by the regular powers of the Articles of Confederation. Congress betrayed a consciousness of this in recommending to the states to incorporate the Bank also. They did not attempt to protect the Bank Notes by penalties against counterfeiters. These were reserved wholly to the authority of the states.
The second clause to be examined is that which empowers Congress to borrow money.
Is this a bill to borrow money? It does not borrow a shilling. Is there any fair construction by which the bill can be deemed an exercise of the power to borrow money? The obvious meaning of the power to borrow money is that of accepting it from and stipulating payments to those who are able and willing to lend.
To say that the power to borrow involves a power of creating the ability, where there may be the will, to lend is not only establishing a dangerous principle, as will be immediately shewn, but is as forced a construction as to say that it involves the power of compelling the will, where there may be the ability, to lend.
The third clause is that which gives the power to pass all laws necessary and proper to execute the specified powers.
Whatever meaning this clause may have, none can be admitted that would give an unlimited discretion to Congress.
Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end and incident to the nature of the specified powers.
The clause is in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and as it were, technical means of executing those powers. In this sense it had been explained by the friends of the Constitution and ratified by the state conventions.
The essential characteristic of the government, as composed of limited and enumerated powers, would be destroyed: If instead of direct and incidental means, any means could be used which, in the language of the preamble to the bill, “might be conceived to be conducive to the successful conducting of the finances; or might be conceived to tend to give facility to the obtaining of loans.” He urged an attention to the diffuse and ductile terms which had been found requisite to cover the stretch of power contained in the bill. He compared them with the terms necessary and proper, used in the Constitution, and asked whether it was possible to view the two descriptions as synonimous, or the one as a fair and safe commentary on the other.
If, proceeded he, Congress, by virtue of the power to borrow, can create the means of lending, and in pursuance of these means, can incorporate a Bank, they may do any thing whatever creative of like means.
The East-India Company has been a lender to the British government, as well as the Bank, and the South-Sea Company is a greater creditor than either. Congress then may incorporate similar companies in the United States, and that too not under the idea of regulating trade, but under that of borrowing money.
Private capitals are the chief resources for loans to the British government. Whatever then may be conceived to favor the accumulation of capitals may be done by Congress. They may incorporate manufactures. They may give monopolies in every branch of domestic industry.
If, again, Congress by virtue of the power to borrow money can create the ability to lend, they may by virtue of the power to levy money create the ability to pay it. The ability to pay taxes depends on the general wealth of the society, and this on the general prosperity of agriculture, manufactures and commerce. Congress then may give bounties and make regulations on all of these objects.
The states have, it is allowed on all hands, a concurrent right to lay and collect taxes. This power is secured to them not by its being expressly reserved, but by its not being ceded by the Constitution. The reasons for the bill cannot be admitted because they would invalidate that right; why may it not be conceived by Congress that a uniform and exclusive imposition of taxes would, not less than the proposed Banks, be conducive to the successful conducting of the national finances, and tend to give facility to the obtaining of revenue, for the use of the government?
The doctrine of implication is always a tender one. The danger of it has been felt in other governments. The delicacy was felt in the adoption of our own; the danger may also be felt, if we do not keep close to our chartered authorities.
Mark the reasoning on which the validity of the bill depends. To borrow money is made the end and the accumulation of capitals implied as the means. The accumulation of capitals is then the end and a bank implied as the means. The bank is then the end and a charter of incorporation, a monopoly, capital punishments, etc. implied as the means.
If implications thus remote and thus multiplied can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy.
The latitude of interpretation required by the bill is condemned by the rule furnished by the constitution itself.
Congress have power “to regulate the value of money”; yet it is expressly added, not left to be implied, that counterfeitors may be punished.
They have the power “to declare war,” to which armies are more incident than incorporated Banks to borrowing; yet is expressly added, the power “to raise and support armies”; and to this again, the express power “to make rules and regulations for the government of armies”; a like remark is applicable to the powers as to a navy.
The regulation and calling out of the militia are more appurtenant to war than the proposed bank to borrowing; yet the former is not left to construction.
The very power to borrow money is a less remote implication from the power of war than an incorporated monopoly bank from the power of borrowing—yet the power to borrow is not left to implication.
It is not pretended that every insertion or omission in the constitution is the effect of systematic attention. This is not the character of any human work, particularly the work of a body of men. The examples cited, with others that might be added, sufficiently inculcate nevertheless a rule of interpretation very different from that on which the bill rests. They condemn the exercise of any power, particularly a great and important power, which is not evidently and necessarily involved in an express power.
It cannot be denied that the power proposed to be exercised is an important power.
As a charter of incorporation the bill creates an artificial person previously not existing in law. It confers important civil rights and attributes which could not otherwise be claimed. It is, though not precisely similar, at least equivalent to the naturalization of an alien, by which certain new civil characters are acquired by him. Would Congress have had the power to naturalize if it had not been expressly given?
In the power to make bylaws, the bill delegated a sort of legislative power, which is unquestionably an act of a high and important nature. He took notice of the only restraint on the bylaws, that they were not to be contrary to the law and the constitution of the bank; and asked what law was intended; if the law of the United States, the scantiness of their code would give a power never before given to a corporation—and obnoxious to the states, whose laws would then be superceded not only by the laws of Congress, but by the bylaws of a corporation within their own jurisdiction. If the law intended was the law of the state, then the state might make laws that would destroy an institution of the United States.
The bill gives a power to purchase and hold lands; Congress themselves could not purchase lands within a state “without the consent of its legislature.” How could they delegate a power to others which they did not possess themselves?
It takes from our successors, who have equal rights with ourselves, and with the aid of experience will be more capable of deciding on the subject, an opportunity of exercising that right for an immoderate term.
It takes from our constituents the opportunity of deliberating on the untried measure, although their hands are also to be tied by it for the same term.
It involves a monopoly, which affects the equal rights of every citizen.
It leads to a penal regulation, perhaps capital punishments, one of the most solemn acts of sovereign authority.
From this view of the power of incorporation exercised in the bill, it could never be deemed an accessary or subaltern power, to be deduced by implication, as a means of executing another power; it was in its nature a distinct, an independent and substantive prerogative, which not being enumerated in the Constitution could never have been meant to be included in it, and not being included could never be rightfully exercised.
He here adverted to a distinction which he said had not been sufficiently kept in view, between a power necessary and proper for the government or union and a power necessary and proper for executing the enumerated powers. In the latter case, the powers included in each of the enumerated powers were not expressed, but to be drawn from the nature of each. In the former, the powers composing the government were expressly enumerated. This constituted the peculiar nature of the government; no power therefore not enumerated could be inferred from the general nature of government. Had the power of making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented or supplied by an amendment of the Constitution.
But the proposed bank could not even be called necessary to the government; at most it could be but convenient. Its uses to the government could be supplied by keeping the taxes a little in advance—by loans from individuals—by the other banks over which the government would have equal command, nay greater, as it may grant or refuse to these the privilege, made a free and irrevocable gift to the proposed bank, of using their notes in the federal revenue.
He proceeded next to the cotemporary expositions given to the Constitution.
The defence against the charge founded on the want of a bill of rights presupposed, he said, that the powers not given were retained and that those given were not to be extended by remote implications. On any other supposition, the power of Congress to abridge the freedom of the press, or the rights of conscience, etc. could not have been disproved.
The explanations in the state conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. (Here he read sundry passages from the debates of the Pennsylvania, Virginia and North-Carolina conventions, shewing the grounds on which the Constitution had been vindicated by its principal advocates against a dangerous latitude of its powers, charged on it by its opponents.) He did not undertake to vouch for the accuracy or authenticity of the publications which he quoted—he thought it probable that the sentiments delivered might in many instances have been mistaken or imperfectly noted; but the complexion of the whole, with what he himself and many others must recollect, fully justified the use he had made of them.
The explanatory declarations and amendments accompanying the ratifications of the several states formed a striking evidence wearing the same complexion. He referred those who might doubt on the subject to the several acts of ratification.
The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction excluding the latitude now contended for. These explanations were the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. He read several of the articles proposed, remarking particularly on the 11th and 12th: the former, as guarding against a latitude of interpretation—the latter, as excluding every source of power not within the constitution itself.
With all this evidence of the sense in which the Constitution was understood and adopted, will it not be said, if the bill should pass, that its adoption was brought about by one set of arguments and that it is now administered under the influence of another set; and this reproach will have the keener sting, because it is applicable to so many individuals concerned in both the adoption and administration.
In fine, if the power were in the Constitution, the immediate exercise of it cannot be essential—if not there, the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation leveling all the barriers which limit the powers of the general government and protect those of the state governments. If the point be doubtful only, respect for ourselves, who ought to shun the appearance of precipitancy and ambition; respect for our successors, who ought not lightly to be deprived of the opportunity of exercising the rights of legislation; respect for our constituents who have had no opportunity of making known their sentiments and who are themselves to be bound down to the measure for so long a period: all these considerations require that the irrevocable decision should at least be suspended until another session.
It appeared on the whole, he concluded, that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristic of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the public; was condemned by the apparent intention of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and he hoped it would receive its final condemnation, by the vote of this house.
James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000). Chapter: C.: The Bill Of Rights
Accessed from oll.libertyfund.org/title/679/68517 on 2010-02-10
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
The first ten amendments were proposed by Congress in 1789, at their first session; and, having received the ratification of the legislatures of three-fourths of the several States, they became a part of the Constitution December 15, 1791, and are known as the Bill of Rights.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.
* * * * *
Some of the State constitutions drawn up during the Revolution included bills of rights. The most famous and influential of these was Virginia’s Declaration of Rights, written by George Mason in 1776. (Mason also had a large hand in writing the Virginian Constitution at about the same time. Strictly speaking, the Declaration of Rights was not part of that constitution.) It is upon Mason’s Declaration of Rights that much of the Bill of Rights of the Constitution is founded. The principal author of the Bill of Rights, however, was James Madison.
All early Americans with any serious interest in politics knew something about the English Bill (or Declaration) of Rights of 1688. But, as in many other matters, American leaders tended to be influenced more by recent or colonial American precedents and example than by those from British history. John Adams and Thomas Jefferson both earnestly supported the idea of a national bill of rights, and so did many other leading men.
We shall now examine those ten amendments, one by one, with a view to grasping their original purpose or meaning. For people of our time, the phrases of those amendments, like the phrases of the original Seven Articles of the Constitution, sometimes require interpretation. What did those words mean, as people used them near the end of the eighteenth century? One way to find out is to consult the first great dictionary of the English language, Samuel Johnson’s, published at London in 1775; or, later, Noah Webster’s American Dictionary of the English Language (1828). It is important to understand precisely, so far as possible, the meanings intended by the men (chiefly James Madison and George Mason) whose phrases are found in the Bill of Rights, because many important cases of constitutional law that affect millions of Americans are today decided on the presumed significance of certain phrases in the Bill of Rights. As the English jurist Sir James Fitzjames Stephen wrote in Victorian times, “Words are tools that break in the hand.” We therefore need to define the concepts which lie behind the words of the Bill of Rights.
|Amendment||Bill of Rights Guarantees||First Document Protecting||First American Guarantee||First Constitutional Guarantee|
|Source: Bernard Schwartz, The Roots of the Bill of Rights. Vol. 5 (New York: Chelsea House Publishers, 1980), 1204.|
|I||Establishment of religion||Rights of the Colonists (Boston)||Same||N.J. Constitution, Art. XIX|
|Free exercise of religion||Md. Act Concerning Religion||Same||Va. Declaration of Rights, S. 16|
|Free speech||Mass. Body of Liberties, S. 12||Same||Pa. Declaration of Rights, Art. XII|
|Free press||Address to Inhabitants of Quebec||Same||Va. Declaration of Rights, S. 12|
|Assembly||Declaration and Resolves, Continental Congress||Same||Pa. Declaration of Rights, Art. XVI|
|Petition||Bill of Rights (1689)||Declaration of Rights and Grievances, (1765), S. XIII||Pa. Declaration of Rights, Art. XVI|
|II||Right to bear arms||Bill of Rights (1689)||Pa. Declaration of Rights, Art. XIII||Same|
|III||Quartering soldiers||N.Y. Charter of Liberties||Same||Del. Declaration of Rights, S. 21|
|IV||Searches||Rights of the Colonists (Boston)||Same||Va. Declaration of Rights, S. 10|
|Seizures||Magna Carta, c. 39||Va. Declaration of Rights, S. 10||Same|
|V||Grand jury indictment||N.Y. Charter of Liberties||Same||N.C. Declaration of Rights, Art. VIII|
|Double jeopardy||Mass. Body of Liberties, S. 42||Same||N.H. Bill of Rights, Art. XVI|
|Self-incrimination||Va. Declaration of Rights, S. 8||Same||Same|
|Due process||Magna Carta, c. 39||Md. Act for Liberties of the People||Va. Declaration of Rights, S. 8|
|Just compensation||Mass. Body of Liberties, S. 8||Same||Vt. Declaration of Rights, Art. II|
|VI||Speedy trial||Va. Declaration of Rights, S. 8||Same||Same|
|Public trial||West N.J. Concessions, c. XXIII||Same||Pa. Declaration of Rights, Art. IX|
|Jury trial||Magna Carta, c. 39||Mass. Body of Liberties, S. 29||Va. Declaration of Rights, S. 8|
|Cause and nature of accusation||Va. Declaration of Rights, S. 8||Same||Same|
|Witnesses||Pa. Charter of Privileges, Art. V||Same||N.J. Constitution, Art. XVI|
|Counsel||Mass. Body of Liberties, S. 29||Same||N.J. Constitution, Art. XVI|
|VII||Jury trial (civil)||Mass. Body of Liberties, S. 29||Same||Va. Declaration of Rights, S. 11|
|VIII||Bail||Mass. Body of Liberties, S. 18||Same||Va. Declaration of Rights, S. 9|
|Fines||Pa. Frame of Government, S. XVIII||Same||Va. Declaration of Rights, S. 9|
|Punishment||Mass. Body of Liberties, S. 43, 46||Same||Va. Declaration of Rights, S. 9|
|IX||Rights retained by people||Va. Convention, proposed amendment 17||Same||Ninth Amendment|
|X||Reserved Powers||Mass. Declaration of Rights, Art. IV||Same||Same|
Another way to ascertain what the framers of the Bill of Rights intended by their amendments, and what the first Congress and the ratifying State legislatures understood by the amendments’ language, is to consult Sir William Blackstone’s Commentaries on the Laws of England (1765), and the early Commentaries on the Constitution (1833) and Commentaries on American Law (1826), written, respectively, by Joseph Story and James Kent. As eminent judges during the early decades of the Republic, both Story and Kent were more familiar with the constitutional controversies of the first five presidential administrations than any judge or professor of law near the close of the twentieth century can hope to be.
The comments on the Bill of Rights that follow are based on such sources of information, and also on the books, letters, and journals of political leaders and judges from 1776 to 1840.
It should be noted, moreover, that the Northwest Ordinance of 1787 also sheds light on the ideas and ideals of the generation that drafted the Constitution and the Bill of Rights. Passed by the Continental Congress on July 13, 1787, while the Federal Convention was meeting in Philadelphia, the Northwest Ordinance was later affirmed by the first Congress under the new Constitution. Its purpose was to provide a frame of government for the western territories that later became the States of Ohio, Indiana, Illinois, Michigan, and Wisconsin.
The Ordinance has been called our first national bill of rights, or “the Magna Charta of American Freedom.” The great American statesman Daniel Webster said he doubted “whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked and lasting character than the Ordinance of 1787.” In addition to protecting many civil liberties that later appeared in the Bill of Rights, the Northwest Ordinance also banned slavery in the Northwest Territory. The wording of the Thirteenth Amendment (1865) providing for the abolition of slavery in the United States was taken directly from the Northwest Ordinance. On the subject of religion, the ordinance provided that “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in said Territory.” The Ordinance also declared as a matter of public policy that because “Religion, morality, and knowledge, [are] necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
We hear a good deal nowadays about “a wall of separation” between church and state in America. To some people’s surprise, this phrase cannot be found in either the Constitution or the Declaration of Independence. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut.
The first clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause is followed by guarantees of freedom of speech, of publication, of assembly, and of petitioning. These various aspects of liberty were lumped together in the First Amendment for the sake of convenience; Congress had originally intended to assign “establishment of religion” to a separate amendment because the relationships between state and church are considerably different from the civil liberties of speech, publication, assembly, and petitioning.
The purpose of the “Establishment Clause” was two-fold: (1) to prohibit Congress from imposing a national religion upon the people; and (2) to prohibit Congress (and the Federal government generally) from interfering with existing church-state relations in the several States. Thus the “Establishment Clause” is linked directly to the “Free Exercise Clause.” It was designed to promote religious freedom by forbidding Congress to prefer one religious sect over other religious sects. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State. Hence the importance of the word “respecting”: Congress shall make no law “respecting,” that is, touching or dealing with, the subject of religious establishment.
In effect, this “Establishment Clause” was a compromise between two eminent members of the first Congress—James Madison and Fisher Ames. Representative Ames, from Massachusetts, was a Federalist. In his own State, and also in Connecticut, there still was an established church—the Congregational Church. By 1787–1791, an “established church” was one which was formally recognized by a State government as the publicly preferred form of religion. Such a church was entitled to certain taxes, called tithes, that were collected from the public by the State. Earlier, several other of Britain’s colonies had recognized established churches, but those other establishments had vanished during the Revolution.
Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. For Episcopalians constituted the most numerous and influential Christian denomination in the United States. Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut. Therefore, Fisher Ames and his Massachusetts constituents in 1789 were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church.
The motive of James Madison for advocating the Establishment Clause of the First Amendment was somewhat different. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies. So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic.
In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. The phrase “or prohibiting the free exercise thereof” was meant to keep the Congress from ever meddling in the disputes among religious bodies or interfering with the mode of worship.
During the nineteenth century, at least, State governments would have been free to establish State churches, had they desired to do so. The Establishment Clause restrained only Congress—not State legislatures. But the States were no more interested in establishing a particular church than was Congress, and the two New England States where Congregationalism was established eventually gave up their establishments—Connecticut in 1818, Massachusetts in 1833.
The remainder of the First Amendment is a guarantee of reasonable freedom of speech, publication, assembly, and petition. A key word in this declaration that the Congress must not abridge these freedoms is the article “the”—abridging the freedom of speech and press. For what the Congress had in mind, in 1789, was the civil freedom to which Americans already were accustomed, and which they had inherited from Britain. In effect, the clause means “that freedom of speech and press which prevails today.” In 1789, this meant that Congress was prohibited from engaging in the practice of “prior censorship”—prohibiting a speech or publication without advance approval of an executive official. The courts today give a much broader interpretation to the clause. This does not mean, however, that the First Amendment guarantees any absolute or perfect freedom to shout whatever one wishes, print whatever one likes, assemble in a crowd wherever or whenever it suits a crowd’s fancy, or present a petition to Congress or some other public body in a context of violence. Civil liberty as understood in the Constitution is ordered liberty, not license to indulge every impulse and certainly not license to overthrow the Constitution itself.
As one of the more famous of Supreme Court Justices, Oliver Wendell Holmes, put this matter, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Similarly, statutes that prohibit the publication of obscenities, libels, and calls to violence are generally held by the courts to conform to the First Amendment. For example, public assemblies can be forbidden or dispersed by local authorities when crowds threaten to turn into violent mobs. And even public petitions to the legislative or the executive branch of government must be presented in accordance with certain rules, or else they may be lawfully rejected.
The Constitution recognizes no “absolute” rights. A Justice of the Supreme Court observed years ago that “The Bill of Rights is not a suicide pact.” Instead, the First Amendment is a reaffirmation of certain long-observed civil freedoms, and it is not a guarantee that citizens will go unpunished however outrageous their words, publications, street conduct, or mode of addressing public officials. The original, and in many ways the most important, purpose of freedom of speech and press is that it affords citizens an opportunity to criticize government—favorably and unfavorably—and to hold public officials accountable for their actions. It thus serves to keep the public informed and encourages the free exchange of ideas.
This amendment consists of a single sentence: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”
Although today we tend to think of the “militia” as the armed forces or national guard, the original meaning of the word was “the armed citizenry.” One of the purposes of the Second Amendment was to prevent Congress from disarming the State militias. The phrasing of the Amendment was directly influenced by the American Revolutionary experience. During the initial phases of that conflict, Americans relied on the militia to confront the British regular army. The right of each State to maintain its own militia was thought by the founding generation to be a critical safeguard against “standing armies” and tyrants, both foreign and domestic.
The Second Amendment also affirms an individual’s right to keep and bear arms. Since the Amendment limits only Congress, the States are free to regulate the possession and carrying of weapons in accordance with their own constitutions and bills of rights. “The right of the citizens to keep and bear arms,” observed Justice Joseph Story of the Supreme Court in his Commentaries on the Constitution (1833), “has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Thus a disarmed population cannot easily resist or overthrow tyrannical government. The right is not absolute, of course, and the Federal courts have upheld Federal laws that limit the sale, possession, and transportation of certain kinds of weapons, such as machine guns and sawed-off shotguns. To what extent Congress can restrict the right is a matter of considerable uncertainty because the Federal courts have not attempted to define its limits.
Forbidding Congress to station soldiers in private houses without the householders’ permission in time of peace, or without proper authorization in time of war, was bound up with memories of British soldiers who were quartered in American houses during the War of Independence. It is an indication of a desire, in 1789, to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it.
This is a requirement for search warrants when the public authority decides to search individuals or their houses, or to seize their property in connection with some legal action or investigation. In general, any search without a warrant is unreasonable. Under certain conditions, however, no warrant is necessary—as when the search is incidental to a lawful arrest.
Before engaging in a search, the police must appear before a magistrate and, under oath, prove that they have good cause to believe that a search should be made. The warrant must specify the place to be searched and the property to be seized. This requirement is an American version of the old English principle that “Every man’s house is his castle.” In recent decades, courts have extended the protections of this amendment to require warrants for the search and seizure of intangible property, such as conversations recorded through electronic eavesdropping.
Here we have a complex of old rights at law that were intended to protect people from arbitrary treatment by the possessors of power, especially in actions at law. The common law assumes that a person is innocent until he is proven guilty. This amendment reasserts the ancient requirement that if a person is to be tried for a major crime, he must first be indicted by a grand jury. In addition, no person may be tried twice for the same offense. Also, an individual cannot be compelled in criminal cases to testify against himself, “nor be deprived of life, liberty, or property, without due process of law”; and the public authorities may not take private property without just compensation to the owner.
The immunity against being compelled to be a witness against one’s self is often invoked in ordinary criminal trials and in trials for subversion or espionage. This right, like others in the Bill of Rights, is not absolute. A person who “takes the Fifth”—that is, refuses to answer questions in a court because his answers might incriminate him—thereby raises “a legitimate presumption” in the court that he has done something for which he might be punished by the law. If offered immunity from prosecution in return for giving testimony, either he must comply or else expect to be jailed, and kept in jail, for contempt of court. And, under certain circumstances, a judge or investigatory body such as a committee of Congress may refuse to accept a witness’s contention that he would place himself in danger of criminal prosecution were he to answer any questions.
The Fifth Amendment’s due process requirement was originally a procedural right that referred to methods of law enforcement. If a person was to be deprived of his life, liberty or property, such a deprivation had to conform to the common law standards of “due process.” The Amendment required a procedure, as Daniel Webster once put it, that “hears before it condemns, proceeds upon inquiries, and renders judgment only after a trial” in which the basic principles of justice have been observed.
The prohibition against taking private property for public use without just compensation is a restriction on the Federal government’s power of eminent domain. Federal courts have adopted a rule of interpretation that the “taking” must be “direct” and that private property owners are not entitled to compensation for indirect loss incidental to the exercise of governmental powers. Thus the courts have frequently held that rent-control measures, limiting the amount of rent which may be charged, are not a “taking,” even though such measures may decrease the value of the property or deprive the owners of rental income. As a general rule, Federal courts have not since 1937 extended the same degree of protection to property rights as they have to other civil rights.
Here again the Bill of Rights reaffirms venerable protections for persons accused of crimes. The Amendment guarantees jury trial in criminal cases; the right of the accused “to be informed of the nature and cause of the accusation”; also the rights to confront witnesses, to obtain witnesses through the arm of the law, and to have lawyers’ help.
These are customs and privileges at law derived from long usage in Britain and America. The recent enlargement of these rights by Federal courts has caused much controversy. The right of assistance of counsel, for example, has been extended backward from the time of trial to the time the defendant is first questioned as a suspect, and forward to the appeals stage of the process. Under the so-called “Miranda” rule, police must read to a suspect his “Miranda” rights before interrogation. Only if a suspect waives his rights may any statement or confession obtained be used against him in a trial. Otherwise the suspect is said to have been denied “assistance of counsel.”
The Sixth Amendment also specifies that criminal trials must be “speedy.” Because of the great backload of cases in our courts, this requirement is sometimes loosely applied today. Yet, as one jurist has put the matter, “Justice delayed is justice denied.”
This guarantee of jury trial in civil suits at common law “where the value in controversy shall exceed twenty dollars” (a much bigger sum of money in 1789 than now) was included in the Bill of Rights chiefly because several of the States’ ratifying conventions had recommended it. It applies only to Federal cases, of course, and it may be waived. The primary purpose of the Amendment was to preserve the historic line separating the jury, which decides the facts, from the judge, who applies the law. It applies only to suits at common law, meaning “rights and remedies peculiarly legal in their nature.” It does not apply to cases in equity or admiralty law, where juries are not used. In recent years, increasingly large monetary awards to plaintiffs by juries in civil cases have brought the jury system somewhat into disrepute.
How much bail, fixed by a court as a requirement to assure that a defendant will appear in court at the assigned time, is “excessive”? What punishments are “cruel and unusual”? The monetary sums for bail have changed greatly over two centuries, and criminal punishments have grown less severe. Courts have applied the terms of this amendment differently over the years.
Courts are not required to release an accused person merely because he can supply bail bonds. The court may keep him imprisoned, for example, if the court fears that the accused person would become a danger to the community if released, or would flee the jurisdiction of the court. In such matters, much depends on the nature of the offense, the reputation of the alleged offender, and his ability to pay. Bail of a larger amount than is usually set for a particular crime must be justified by evidence.
As for cruel and unusual punishments, public whipping was not regarded as cruel and unusual in 1789, but it is probably so regarded today. In recent years, the Supreme Court has found that capital punishment is not forbidden by the Eighth Amendment, although the enforcement of capital punishment must be carried out so as not to permit jury discretion or to discriminate against any class of persons. Punishment may be declared cruel and unusual if it is out of all proportion to the offense.
Are all the rights to be enjoyed by citizens of the United States enumerated in the first eight amendments and in the Articles of the original Constitution? If so, might not the Federal government, at some future time, ignore a multitude of customs, privileges, and old usages cherished by American men and women, on the ground that these venerable ways were not rights at all? Does a civil right have to be written expressly into the Constitution in order to exist? The Seven Articles and the first eight amendments say nothing, for example, about a right to inherit property, or a right of marriage. Are, then, rights to inheritance and marriage wholly dependent on the will of Congress or the President at any one time?
The Federalists had made such objections to the very idea of a Bill of Rights being added to the Constitution. Indeed, it seemed quite possible to the first Congress under the Constitution that, by singling out and enumerating certain civil liberties, the Seven Articles and the Bill of Rights might seem to disparage or deny certain other prescriptive rights that are important but had not been written into the document.
The Ninth Amendment was designed to quiet the fears of the Anti-Federalists who contended that, under the new Constitution, the Federal government would have the power to trample on the liberties of the people because it would have jurisdiction over any right that was not explicitly protected against Federal abridgment and reserved to the States. They argued in particular that there was an implied exclusion of trial by jury in civil cases because the Constitution made reference to it only in criminal cases.
Written to serve as a general principle of construction, the Ninth Amendment declares that “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The reasoning behind the amendment springs from Hamilton’s 83rd and 84th essays in The Federalist. Madison introduced it simply to prevent a perverse application of the ancient legal maxim that a denial of power over a specified right does not imply an affirmative grant of power over an unnamed right.
This amendment is much misunderstood today, and it is sometimes thought to be a source of new rights, such as the “right of privacy,” over which Federal courts may establish jurisdiction. It should be kept in mind, however, that the original purpose of this amendment was to limit the powers of the Federal government, not to expand them.
This last amendment in the Bill of Rights was probably the one most eagerly desired by the various State conventions and State legislatures that had demanded the addition of a bill of rights to the Constitution. Throughout the country, the basic uneasiness with the new Constitution was the dread that the Federal government would gradually enlarge its powers and suppress the States’ governments. The Tenth Amendment was designed to lay such fears to rest.
This amendment was simply a declaration that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Federalists maintained that the Framers at Philadelphia had meant from the first that all powers not specifically assigned to the Federal government were reserved to the States or the people of the States.
The amendment declares that powers are reserved “to the States respectively, or to the people,” meaning they are to be left in their original state.
It should be noted that the Tenth Amendment does not say that powers not expressly delegated to the United States are reserved to the States. The authors of the Bill of Rights considered and specifically rejected such a statement. They believed that an amendment limiting the national government to its expressed powers would have seriously weakened it.
During much of our history, the Tenth Amendment was interpreted as a limitation of the delegated powers of Congress. Since 1937, however, the Supreme Court has largely rejected this view, and the Amendment no longer has the same operative meaning or effect that it once had.
Some Americans seem to fancy that the whole Constitution is a catalog of people’s rights. But actually the major part of the Constitution—the Seven Articles—establishes a framework of national government and only incidentally deals with individuals’ rights.
In any society, duties are often even more important than rights. For example, the duty of obeying good laws is more essential than the right to be exempted from the ordinary operation of the laws. As has been said, every right is married to some duty. Freedom involves individual responsibility.
With that statement in mind, let us look at some of the provisions of the Bill of Rights to see how those rights are joined to certain duties.
If one has a right to freedom of speech, one has a duty to speak decently and honestly, not inciting people to riot or to commit crimes.
If one has a right to freedom of the press (or, in our time, freedom of the “media”), one has the duty to publish the truth, temperately—not abusing this freedom for personal advantage or vengeance.
If one has a right to join other people in a public assembly, one has the duty to tolerate other people’s similar gatherings and not to take the opportunity of converting a crowd into a mob.
If one enjoys an immunity from arbitrary search and seizure, one has the duty of not abusing these rights by unlawfully concealing things forbidden by law.
If one has a right not to be a witness against oneself in a criminal case, one has the duty not to pretend that he would be incriminated if he should testify: that is, to be an honest and candid witness, not taking advantage of the self-incrimination exemption unless otherwise one would really be in danger of successful prosecution.
If one has a right to trial by jury, one ought to be willing to serve on juries when so summoned by a court.
If one is entitled to rights, one has the duty to support the public authority that protects those rights.
For, unless a strong and just government exists, it is vain to talk about one’s rights. Without liberty, order, and justice, sustained by good government, there is no place to which anyone can turn for enforcement of his claims to rights. This is because a “right,” in law, is a claim upon somebody for something. If a man has a right to be paid for a day’s work, for example, he asserts a claim upon his employer; but, if that employer refuses to pay him, the man must turn to a court of law for enforcement of his right. If no court of law exists, the “right” to payment becomes little better than an empty word. The unpaid man might try to take his pay by force, true; but when force rules instead of law, a society falls into anarchy and the world is dominated by the violent and the criminal.
Knowing these hard truths about duties, rights, and social order, the Framers endeavored to give us a Constitution that is more than mere words and slogans. Did they succeed? At the end of two centuries, the Constitution of the United States still functions adequately. Had Americans followed the French example of placing all their trust in a naked declaration of rights, without any supporting constitutional edifice to limit power and the claims of absolute liberty, it may be doubted whether liberty, order, or justice would have prevailed in the succeeding years. There cannot be better proof of the wisdom of the Framers than the endurance of the Constitution.
Alexander Hamilton, The Pacificus-Helvidius Debates of 1793-1794: Toward the Completion of the American Founding, edited with and Introduction by Morton J. Frisch (Indianapolis: Liberty Fund, 2007). Chapter: Helvidius Number I *
Accessed from oll.libertyfund.org/title/1910/112550 on 2010-02-10
Material by Washington and Madison is published by permission from The Papers of Alexander Hamilton (Columbia University Press) and by Jefferson and Madison from The Papers of James Madison (University Press of Virginia).
Madison’s focus is on a strict construction of executive power. He argues here that the power to declare war and make treaties can never fall within the definition of executive powers. The natural province of the executive is to execute laws, as that of the legislature is to make laws. Therefore all executive acts must presuppose the existence of laws to be executed. To say that the making of treaties, being substantially of a legislative nature, belongs to the executive is to say that the executive possesses a legislative power. The power to declare war is subject to the same reasoning.
[24 August 1793]
Several pieces with the signature of Pacificus were lately published, which have been read with singular pleasure and applause, by the foreigners and degenerate citizens among us, who hate our republican government, and the French revolution; whilst the publication seems to have been too little regarded, or too much despised by the steady friends to both.
Had the doctrines inculcated by the writer, with the natural consequences from them, been nakedly presented to the public, this treatment might have been proper. Their true character would then have struck every eye, and been rejected by the feelings of every heart. But they offer themselves to the reader in the dress of an elaborate dissertation; they are mingled with a few truths that may serve them as a passport to credulity; and they are introduced with professions of anxiety for the preservation of peace, for the welfare of the government, and for the respect due to the present head of the executive, that may prove a snare to patriotism.
In these disguises they have appeared to claim the attention I propose to bestow on them; with a view to shew, from the publication itself, that under colour of vindicating an important public act, of a chief magistrate, who enjoys the confidence and love of his country, principles are advanced which strike at the vitals of its constitution, as well as at its honor and true interest.
As it is not improbable that attempts may be made to apply insinuations which are seldom spared when particular purposes are to be answered, to the author of the ensuing observations, it may not be improper to premise, that he is a friend to the constitution, that he wishes for the preservation of peace, and that the present chief magistrate has not a fellow-citizen, who is penetrated with deeper respect for his merits, or feels a purer solicitude for his glory.
This declaration is made with no view of courting a more favorable ear to what may be said than it deserves. The sole purpose of it is, to obviate imputations which might weaken the impressions of truth; and which are the more likely to be resorted to, in proportion as solid and fair arguments may be wanting.
The substance of the first piece, sifted from its inconsistencies and its vague expressions, may be thrown into the following propositions:
That the powers of declaring war and making treaties are, in their nature, executive powers:
That being particularly vested by the constitution in other departments, they are to be considered as exceptions out of the general grant to the executive department:
That being, as exceptions, to be construed strictly, the powers not strictly within them, remain with the executive:
That the executive consequently, as the organ of intercourse with foreign nations, and the interpreter and executor of treaties, and the law of nations, is authorised, to expound all articles of treaties, those involving questions of war and peace, as well as others; to judge of the obligations of the United States to make war or not, under any casus federis or eventual operation of the contract, relating to war; and, to pronounce the state of things resulting from the obligations of the United States, as understood by the executive:
That in particular the executive had authority to judge whether in the case of the mutual guaranty between the United States and France, the former were bound by it to engage in the war:
That the executive has, in pursuance of that authority, decided that the United States are not bound: And,
That its proclamation of the 22d of April last, is to be taken as the effect and expression of that decision.
The basis of the reasoning is, we perceive, the extraordinary doctrine, that the powers of making war and treaties, are in their nature executive; and therefore comprehended in the general grant of executive power, where not specially and strictly excepted out of the grant.
Let us examine this doctrine; and that we may avoid the possibility of mistating the writer, it shall be laid down in his own words: a precaution the more necessary, as scarce any thing else could outweigh the improbability, that so extravagant a tenet should be hazarded, at so early a day, in the face of the public.
His words are—“Two of these (exceptions and qualifications to the executive powers) have been already noticed—the participation of the Senate in the appointment of officers, and the making of treaties. A third remains to be mentioned—the right of the legislature to declare war, and grant letters of marque and reprisal.”
Again—“It deserves to be remarked, that as the participation of the Senate in the making treaties, and the power of the legislature to declare war, are exceptions out of the general executive power, vested in the President, they are to be construed strictly, and ought to be extended no farther than is essential to their execution.”
If there be any countenance to these positions, it must be found either 1st, in the writers, of authority, on public law; or 2d, in the quality and operation of the powers to make war and treaties; or 3d, in the constitution of the United States.
It would be of little use to enter far into the first source of information, not only because our own reason and our own constitution, are the best guides; but because a just analysis and discrimination of the powers of government, according to their executive, legislative and judiciary qualities are not to be expected in the works of the most received jurists, who wrote before a critical attention was paid to those objects, and with their eyes too much on monarchical governments, where all powers are confounded in the sovereignty of the prince. It will be found however, I believe, that all of them, particularly Wolfius, Burlamaqui and Vattel, speak of the powers to declare war, to conclude peace, and to form alliances, as among the highest acts of the sovereignty; of which the legislative power must at least be an integral and preeminent part.
Writers, such as Locke and Montesquieu, who have discussed more particularly the principles of liberty and the structure of government, lie under the same disadvantage, of having written before these subjects were illuminated by the events and discussions which distinguish a very recent period. Both of them too are evidently warped by a regard to the particular government of England, to which one of them owed allegiance;* and the other professed an admiration bordering on idolatry. Montesquieu, however, has rather distinguished himself by enforcing the reasons and the importance of avoiding a confusion of the several powers of government, than by enumerating and defining the powers which belong to each particular class. And Locke, notwithstanding the early date of his work on civil government, and the example of his own government before his eyes, admits that the particular powers in question, which, after some of the writers on public law he calls federative, are really distinct from the executive, though almost always united with it, and hardly to be separated into distinct hands. Had he not lived under a monarchy, in which these powers were united; or had he written by the lamp which truth now presents to lawgivers, the last observation would probably never have dropt from his pen. But let us quit a field of research which is more likely to perplex than to decide, and bring the question to other tests of which it will be more easy to judge.
2. If we consult for a moment, the nature and operation of the two powers to declare war and make treaties, it will be impossible not to see that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed. A treaty is not an execution of laws: it does not pre-suppose the existence of laws. It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws, by the executive magistrate. To say then that the power of making treaties which are confessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory, this is an absurdity—in practice a tyranny.
The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws: it does not suppose preexisting laws to be executed: it is not in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war: and of enacting as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace.
These remarks will be strengthened by adding that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and compleat.
From this view of the subject it must be evident, that although the executive may be a convenient organ of preliminary communications with foreign governments, on the subjects of treaty or war; and the proper agent for carrying into execution the final determinations of the competent authority; yet it can have no pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations.
It must be further evident that, if these powers be not in their nature purely legislative, they partake so much more of that, than of any other quality, that under a constitution leaving them to result to their most natural department, the legislature would be without a rival in its claim.
Another important inference to be noted is, that the powers of making war and treaty being substantially of a legislative, not an executive nature, the rule of interpreting exceptions strictly, must narrow instead of enlarging executive pretensions on those subjects.
3. It remains to be enquired whether there be any thing in the constitution itself which shews that the powers of making war and peace are considered as of an executive nature, and as comprehended within a general grant of executive power.
It will not be pretended that this appears from any direct position to be found in the instrument.
If it were deducible from any particular expressions it may be presumed that the publication would have saved us the trouble of the research.
Does the doctrine then result from the actual distribution of powers among the several branches of the government? Or from any fair analogy between the powers of war and treaty and the enumerated powers vested in the executive alone?
Let us examine.
In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested, and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature.
This conclusion becomes irresistible, when it is recollected, that the constitution cannot be supposed to have placed either any power legislative in its nature, entirely among executive powers, or any power executive in its nature, entirely among legislative powers, without charging the constitution, with that kind of intermixture and consolidation of different powers, which would violate a fundamental principle in the organization of free governments. If it were not unnecessary to enlarge on this topic here, it could be shewn, that the constitution was originally vindicated, and has been constantly expounded, with a disavowal of any such intermixture.
The power of treaties is vested jointly in the President and in the Senate, which is a branch of the legislature. From this arrangement merely, there can be no inference that would necessarily exclude the power from the executive class: since the senate is joined with the President in another power, that of appointing to offices, which as far as relate to executive offices at least, is considered as of an executive nature. Yet on the other hand, there are sufficient indications that the power of treaties is regarded by the constitution as materially different from mere executive power, and as having more affinity to the legislative than to the executive character.
One circumstance indicating this, is the constitutional regulation under which the senate give their consent in the case of treaties. In all other cases the consent of the body is expressed by a majority of voices. In this particular case, a concurrence of two thirds at least is made necessary, as a substitute or compensation for the other branch of the legislature, which on certain occasions, could not be conveniently a party to the transaction.
But the conclusive circumstance is, that treaties when formed according to the constitutional mode, are confessedly to have the force and operation of laws, and are to be a rule for the courts in controversies between man and man, as much as any other laws. They are even emphatically declared by the constitution to be “the supreme law of the land.”
So far the argument from the constitution is precisely in opposition to the doctrine. As little will be gained in its favour from a comparison of the two powers, with those particularly vested in the President alone.
As there are but few it will be most satisfactory to review them one by one.
“The President shall be commander in chief of the army and navy of the United States, and of the militia when called into the actual service of the United States.”
There can be no relation worth examining between this power and the general power of making treaties. And instead of being analogous to the power of declaring war, it affords a striking illustration of the incompatibility of the two powers in the same hands. Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.
“He may require the opinion in writing of the principal officers in each of the executive departments upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States, except in case of impeachment.” These powers can have nothing to do with the subject.
“The President shall have power to fill up vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of the next session.” The same remark is applicable to this power, as also to that of “receiving ambassadors, other public ministers and consuls.” The particular use attempted to be made of this last power will be considered in another place.
“He shall take care that the laws shall be faithfully executed and shall commission all officers of the United States.” To see the laws faithfully executed constitutes the essence of the executive authority. But what relation has it to the power of making treaties and war, that is, of determining what the laws shall be with regard to other nations? No other certainly than what subsists between the powers of executing and enacting laws; no other consequently, than what forbids a coalition of the powers in the same department.
I pass over the few other specified functions assigned to the President, such as that of convening of the legislature, &c. &c. which cannot be drawn into the present question.
It may be proper however to take notice of the power of removal from office, which appears to have been adjudged to the President by the laws establishing the executive departments; and which the writer has endeavoured to press into his service. To justify any favourable inference from this case, it must be shewn, that the powers of war and treaties are of a kindred nature to the power of removal, or at least are equally within a grant of executive power. Nothing of this sort has been attempted, nor probably will be attempted. Nothing can in truth be clearer, than that no analogy, or shade of analogy, can be traced between a power in the supreme officer responsible for the faithful execution of the laws, to displace a subaltern officer employed in the execution of the laws; and a power to make treaties, and to declare war, such as these have been found to be in their nature, their operation, and their consequences.
Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It is countenanced neither by the writers on law; nor by the nature of the powers themselves; nor by any general arrangements or particular expressions, or plausible analogies, to be found in the constitution.
Whence then can the writer have borrowed it?
There is but one answer to this question.
The power of making treaties and the power of declaring war, are royal prerogatives in the British government, and are accordingly treated as Executive prerogatives by British commentators.
We shall be the more confirmed in the necessity of this solution of the problem, by looking back to the aera of the constitution, and satisfying ourselves that the writer could not have been misled by the doctrines maintained by our own commentators on our own government. That I may not ramble beyond prescribed limits, I shall content myself with an extract from a work which entered into a systematic explanation and defence of the constitution, and to which there has frequently been ascribed some influence in conciliating the public assent to the government in the form proposed. Three circumstances conspire in giving weight to this cotemporary exposition. It was made at a time when no application to persons or measures could bias: The opinion given was not transiently mentioned, but formally and critically elucidated: It related to a point in the constitution which must consequently have been viewed as of importance in the public mind. The passage relates to the power of making treaties; that of declaring war, being arranged with such obvious propriety among the legislative powers, as to be passed over without particular discussion.
“Tho’ several writers on the subject of government place that power (of making treaties ) in the class of Executive authorities, yet this is evidently an arbitrary disposition. For if we attend carefully, to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority, is to enact laws; or in other words, to prescribe rules for the regulation of the society. While the execution of the laws and the employment of the common strength, either for this purpose, or for the common defence, seem to comprize all the functions of the Executive magistrate. The power of making treaties is plainly neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong properly neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negociations, point out the executive as the most fit agent in those transactions: whilst the vast importance of the trust, and the operation of treaties as Laws, plead strongly for the participation of the whole or a part of the legislative body in the office of making them.” Federalist vol. 2. p. 273.1
It will not fail to be remarked on this commentary, that whatever doubts may be started as to the correctness of its reasoning against the legislative nature of the power to make treaties: it is clear, consistent and confident, in deciding that the power is plainly and evidently not an executive power.
[* ]Reprinted with permission from The Papers of James Madison, ed. Thomas A. Mason, Robert A. Rutland, and Jeanne K. Sisson, vol. 15 (Charlottesville: University Press of Virginia, 1985), 66–73.
[* ]The chapter on prerogative, shews how much the reason of the philosopher was clouded by the royalism of the Englishman.
[1. ][Federalist 75.]
Alexander Hamilton, The Pacificus-Helvidius Debates of 1793-1794: Toward the Completion of the American Founding, edited with and Introduction by Morton J. Frisch (Indianapolis: Liberty Fund, 2007). Chapter: Pacificus Number I *
Accessed from oll.libertyfund.org/title/1910/112542 on 2010-02-10
Material by Washington and Madison is published by permission from The Papers of Alexander Hamilton (Columbia University Press) and by Jefferson and Madison from The Papers of James Madison (University Press of Virginia).
One of the most controversial opinions of Hamilton’s political career was his justification of executive independence in foreign policy questions in the debate over Washington’s Neutrality Proclamation. Hamilton argues in the following essay that the president’s power to make such a proclamation issues from the general grant of executive power, which includes conducting foreign relations; from the president’s primary responsibility in the formation of treaties; and from the power of the execution of the laws, of which treaties form a part.
[Philadelphia, June 29, 1793]
As attempts are making very dangerous to the peace, and it is to be feared not very friendly to the constitution of the UStates—it becomes the duty of those who wish well to both to endeavour to prevent their success.
The objections which have been raised against the Proclamation of Neutrality lately issued by the President have been urged in a spirit of acrimony and invective, which demonstrates, that more was in view than merely a free discussion of an important public measure; that the discussion covers a design of weakening the confidence of the People in the author of the measure; in order to remove or lessen a powerful obstacle to the success of an opposition to the Government, which however it may change its form, according to circumstances, seems still to be adhered to and pursued with persevering Industry.
This Reflection adds to the motives connected with the measure itself to recommend endeavours by proper explanations to place it in a just light. Such explanations at least cannot but be satisfactory to those who may not have leisure or opportunity for pursuing themselves an investigation of the subject, and who may wish to perceive that the policy of the Government is not inconsistent with its obligations or its honor.
The objections in question fall under three heads—
1. That the Proclamation was without authority
2. That it was contrary to our treaties with France
3. That it was contrary to the gratitude, which is due from this to that country; for the succours rendered us in our own Revolution.
4. That it was out of time & unnecessary.
In order to judge of the solidity of the first of these objection[s], it is necessary to examine what is the nature and design of a proclamation of neutrality.
The true nature & design of such an act is—to make known to the powers at War and to the Citizens of the Country, whose Government does the Act that such country is in the condition of a Nation at Peace with the belligerent parties, and under no obligations of Treaty, to become an associate in the war with either of them; that this being its situation its intention is to observe a conduct conformable with it and to perform towards each the duties of neutrality; and as a consequence of this state of things, to give warning to all within its jurisdiction to abstain from acts that shall contravene those duties, under the penalties which the laws of the land (of which the law of Nations is a part) annexes to acts of contravention.
This, and no more, is conceived to be the true import of a Proclamation of Neutrality.
It does not imply, that the Nation which makes the declaration will forbear to perform to any of the warring Powers any stipulations in Treaties which can be performed without rendering it an associate or party in the War. It therefore does not imply in our case, that the UStates will not make those distinctions, between the present belligerent powers, which are stipulated in the 17th and 22d articles of our Treaty with France; because these distinctions are not incompatible with a state of neutrality; they will in no shape render the UStates an associate or party in the War. This must be evident, when it is considered, that even to furnish determinate succours, of a certain number of Ships or troops, to a Power at War, in consequence of antecedent treaties having no particular reference to the existing war, is not inconsistent with neutrality; a position well established by the doctrines of Writers and the practice of Nations.*
But no special aids, succours or favors having relation to war, not positively and precisely stipulated by some Treaty of the above description, can be afforded to either party, without a breach of neutrality.
In stating that the Proclamation of Neutrality does not imply the non performance of any stipulations of Treaties which are not of a nature to make the Nation an associate or party in the war, it is conceded that an execution of the clause of Guarantee contained in the 11th article of our Treaty of Alliance with France would be contrary to the sense and spirit of the Proclamation; because it would engage us with our whole force as an associate or auxiliary in the War; it would be much more than the case of a definite limited succour, previously ascertained.
It follows that the Proclamation is virtually a manifestation of the sense of the Government that the UStates are, under the circumstances of the case, not bound to execute the clause of Guarantee.
If this be a just view of the true force and import of the Proclamation, it will remain to see whether the President in issuing it acted within his proper sphere, or stepped beyond the bounds of his constitutional authority and duty.
It will not be disputed that the management of the affairs of this country with foreign nations is confided to the Government of the UStates.
It can as little be disputed, that a Proclamation of Neutrality, where a Nation is at liberty to keep out of a War in which other Nations are engaged and means so to do, is a usual and a proper measure. Its main object and effect are to prevent the Nation being immediately responsible for acts done by its citizens, without the privity or connivance of the Government, in contravention of the principles of neutrality.†
An object this of the greatest importance to a Country whose true interest lies in the preservation of peace.
The inquiry then is—what department of the Government of the UStates is the prop<er> one to make a declaration of Neutrality in the cases in which the engagements <of> the Nation permit and its interests require such a declaration.
A correct and well informed mind will discern at once that it can belong neit<her> to the Legislative nor Judicial Department and of course must belong to the Executive.
The Legislative Department is not the organ of intercourse between the UStates and foreign Nations. It is charged neither with making nor interpreting Treaties. It is therefore not naturally that Organ of the Government which is to pronounce the existing condition of the Nation, with regard to foreign Powers, or to admonish the Citizens of their obligations and duties as founded upon that condition of things. Still less is it charged with enforcing the execution and observance of these obligations and those duties.
It is equally obvious that the act in question is foreign to the Judiciary Department of the Government. The province of that Department is to decide litigations in particular cases. It is indeed charged with the interpretation of treaties; but it exercises this function only in the litigated cases; that is where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of Treaties between Government and Government. This position is too plain to need being insisted upon.
It must then of necessity belong to the Executive Department to exercise the function in Question—when a proper case for the exercise of it occurs.
It appears to be connected with that department in various capacities, as the organ of intercourse between the Nation and foreign Nations—as the interpreter of the National Treaties in those cases in which the Judiciary is not competent, that is in the cases between Government and Government—as that Power, which is charged with the Execution of the Laws, of which Treaties form a part—as that Power which is charged with the command and application of the Public Force.
This view of the subject is so natural and obvious—so analogous to general theory and practice—that no doubt can be entertained of its justness, unless such doubt can be deduced from particular provisions of the Constitution of the UStates.
Let us see then if cause for such doubt is to be found in that constitution.
The second Article of the Constitution of the UStates, section 1st, establishes this general Proposition, That “The Executive Power shall be vested in a President of the United States of America.”
The same article in a succeeding Section proceeds to designate particular cases of Executive Power. It declares among other things that the President shall be Commander in Cheif of the army and navy of the UStates and of the Militia of the several states when called into the actual service of the UStates, that he shall have power by and with the advice of the senate to make treaties; that it shall be his duty to receive ambassadors and other public Ministers and to take care that the laws be faithfully executed.
It would not consist with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant contained in the general clause, further than as it may be coupled with express restrictions or qualifications; as in regard to the cooperation of the Senate in the appointment of Officers and the making of treaties; which are qualifica<tions> of the general executive powers of appointing officers and making treaties: Because the difficulty of a complete and perfect specification of all the cases of Executive authority would naturally dictate the use of general terms—and would render it improbable that a specification of certain particulars was designd as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution in regard to the two powers the Legislative and the Executive serves to confirm this inference. In the article which grants the legislative powers of the Governt. the expressions are—“All Legislative powers herein granted shall be vested in a Congress of the UStates”; in that which grants the Executive Power the expressions are, as already quoted “The Executive Po<wer> shall be vested in a President of the UStates of America.”
The enumeration ought rather therefore to be considered as intended by way of greater caution, to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power, interpreted in conformity to other parts <of> the constitution and to the principles of free government.
The general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President; subject only to the exceptions and qu[a]lifications which are expressed in the instrument.
Two of these have been already noticed—the participation of the Senate in the appointment of Officers and the making of Treaties. A third remains to be mentioned the right of the Legislature “to declare war and grant letters of marque and reprisal.”
With these exceptions the Executive Power of the Union is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideration and debate. The power of removal from office is an important instance.
And since upon general principles for reasons already given, the issuing of a proclamation of neutrality is merely an Executive Act; since also the general Executive Power of the Union is vested in the President, the conclusion is, that the step, which has been taken by him, is liable to no just exception on the score of authority.
It may be observed that this Inference w<ould> be just if the power of declaring war had <not> been vested in the Legislature, but that <this> power naturally includes the right of judg<ing> whether the Nation is under obligations to m<ake> war or not.
The answer to this is, that however true it may be, that th<e> right of the Legislature to declare wa<r> includes the right of judging whether the N<ation> be under obligations to make War or not—it will not follow that the Executive is in any case excluded from a similar right of Judgment, in the execution of its own functions.
If the Legislature have a right to make war on the one hand—it is on the other the duty of the Executive to preserve Peace till war is declared; and in fulfilling that duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the Country impose on the Government; and when in pursuance of this right it has concluded that there is nothing in them inconsistent with a state of neutrality, it becomes both its province and its duty to enforce the laws incident to that state of the Nation. The Executive is charged with the execution of all laws, the laws of Nations as well as the Municipal law, which recognises and adopts those laws. It is consequently bound, by faithfully executing the laws of neutrality, when that is the state of the Nation, to avoid giving a cause of war to foreign Powers.
This is the direct and proper end of the proclamation of neutrality. It declares to the UStates their situation with regard to the Powers at war and makes known to the Community that the laws incident to that situation will be enforced. In doing this, it conforms to an established usage of Nations, the operation of which as before remarked is to obviate a responsibility on the part of the whole Society, for secret and unknown violations of the rights of any of the warring parties by its citizens.
Those who object to the proclamation will readily admit that it is the right and duty of the Executive to judge of, or to interpret, those articles of our treaties which give to France particular privileges, in order to the enforcement of those privileges: But the necessary consequence of this is, that the Executive must judge what are the proper bounds of those privileges—what rights are given to other nations by our treaties with them—what rights the law of Nature and Nations gives and our treaties permit, in respect to those Nations with whom we have no treaties; in fine what are the reciprocal rights and obligations of the United States & of all & each of the powers at War.
The right of the Executive to receive ambassadors and other public Ministers may serve to illustrate the relative duties of the Executive and Legislative Departments. This right includes that of judging, in the case of a Revolution of Government in a foreign Country, whether the new rulers are competent organs of the National Will and ought to <be> recognised or not: And where a treaty antecedently exists between the UStates and such nation that right involves the power of giving operation or not to such treaty. For until the new Government is acknowleged, the treaties between the nations, as far at least as regards public rights, are of course suspended.
This power of determ[in]ing virtually in the case supposed upon the operation of national Treaties as a consequence, of the power to receive ambassadors and other public Ministers, is an important instance of the right of the Executive to decide the obligations of the Nation with regard to foreign Nations. To apply it to the case of France, if the<re> had been a Treaty of alliance offensive <and> defensive between the UStates and that Coun<try,> the unqualified acknowlegement of the new Government would have put the UStates in a condition to become an associate in the War in which France was engaged—and would have laid the Legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war.
This serves as an example of the right of the Executive, in certain cases, to determine the condition of the Nation, though it may consequentially affect the proper or improper exercise of the Power of the Legislature to declare war. The Executive indeed cannot control the exercise of that power—further than by the exer[c]ise of its general right of objecting to all acts of the Legislature; liable to being overruled by two thirds of both houses of Congress. The Legislature is free to perform its own duties according to its own sense of them—though the Executive in the exercise of its constitutional powers, may establish an antecedent state of things which ought to weigh in the legislative decisions. From the division of the Executive Power there results, in referrence to it, a concurrent authority, in the distributed cases.
Hence in the case stated, though treaties can only be made by the President and Senate, their activity may be continued or suspended by the President alone.
No objection has been made to the Presidents having acknowleged the Republic of France, by the Reception of its Minister, without having consulted the Senate; though that body is connected with him in the making of Treaties, and though the consequence of his act of reception is to give operation to the Treaties heretofore made with that Country: But he is censured for having declared the UStates to be in a state of peace & neutrality, with regard to the Powers at War; because the right of changing that state & declaring war belongs to the Legislature.
It deserves to be remarked, that as the participation of the senate in the making of Treaties and the power of the Legislature to declare war are exceptions out of the general “Executive Power” vested in the President, they are to be construed strictly—and ought to be extended no further than is essential to their execution.
While therefore the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War—it belongs to the “Executive Power,” to do whatever else the laws of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the UStates with foreign Powers.
In this distribution of powers the wisdom of our constitution is manifested. It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation in a state of War.
But though it has been thought adviseable to vindicate the authority of the Executive on this broad and comprehensive ground—it was not absolutely necessary to do so. That clause of the constitution which makes it his duty to “take care that the laws be faithfully executed” might alone have been relied upon, and this simple process of argument pursued.
The President is the constitutional Executor of the laws. Our Treaties and the laws of Nations form a part of the law of the land. He who is to execute the laws must first judge for himself of their meaning. In order to the observance of that conduct, which the laws of nations combined with our treaties prescribed to this country, in reference to the present War in Europe, it was necessary for the President to judge for himself whether there was any thing in our treaties incompatible with an adherence to neutrality. Having judged that there was not, he had a right, and if in his opinion the interests of the Nation required it, it was his duty, as Executor of the laws, to proclaim the neutrality of the Nation, to exhort all persons to observe it, and to warn them of the penalties which would attend its non observance.
The Proclamation has been represented as enacting some new law. This is a view of it entirely erroneous. It only proclaims a fact with regard to the existing state of the Nation, informs the citizens of what the laws previously established require of them in that state, & warns them that these laws will be put in execution against the Infractors of them.
[* ]Reprinted with permission from The Papers of Alexander Hamilton, ed. Harold Syrett et al., vol. 15 (New York: Columbia University Press, 1969), 33–43.
[* ]See Vatel, Book III, Chap. VI, § 101 [Vattel, Law of Nations ].
[† ]See Vatel, Book III, Chap. VII, § 113.
John Marshall, The Life of George Washington. Special Edition for Schools, ed. Robert Faulkner and Paul Carrese (Indianapolis: Liberty Fund, 2000). Chapter: V.: Farewell Address
Accessed from oll.libertyfund.org/title/849/102295 on 2010-02-10
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
United States, September 19, 1796.
Friends, and Fellow-Citizens: The period for a new election of a Citizen, to Administer the Executive government of the United States, being not far distant, and the time actually arrived, when your thoughts must be employed in designating the person, who is to be cloathed with that important trust, it appears to me proper, especially as it may conduce to a more distinct expression of the public voice, that I should now apprise you of the resolution I have formed, to decline being considered among the number of those, out of whom a choice is to be made.
I beg you, at the same time, to do me the justice to be assured, that this resolution has not been taken, without a strict regard to all the considerations appertaining to the relation, which binds a dutiful citizen to his country, and that, in with drawing the tender of service which silence in my situation might imply, I am influenced by no diminution of zeal for your future interest, no deficiency of grateful respect for your past kindness; but am supported by a full conviction that the step is compatible with both.
The acceptance of, and continuance hitherto in, the office to which your Suffrages have twice called me, have been a uniform sacrifice of inclination to the opinion of duty, and to a deference for what appeared to be your desire. I constantly hoped, that it would have been much earlier in my power, consistently with motives, which I was not at liberty to disregard, to return to that retirement, from which I had been reluctantly drawn. The strength of my inclination to do this, previous to the last Election, had even led to the preparation of an address to declare it to you; but mature reflection on the then perplexed and critical posture of our Affairs with foreign Nations, and the unanimous advice of persons entitled to my confidence, impelled me to abandon the idea.
I rejoice, that the state of your concerns, external as well as internal, no longer renders the pursuit of inclination incompatible with the sentiment of duty, or propriety; and am persuaded whatever partiality may be retained for my services, that in the present circumstances of our country, you will not disapprove my determination to retire.
The impressions, with which I first undertook the arduous trust, were explained on the proper occasion. In the discharge of this trust, I will only say, that I have, with good intentions, contributed towards the Organization and Administration of the government, the best exertions of which a very fallible judgment was capable. Not unconscious, in the outset, of the inferiority of my qualifications, experience in my own eyes, perhaps still more in the eyes of others, has strengthened the motives to diffidence of myself; and every day the encreasing weight of years admonishes me more and more, that the shade of retirement is as necessary to me as it will be welcome. Satisfied that if any circumstances have given peculiar value to my services, they were temporary, I have the consolation to believe, that while choice and prudence invite me to quit the political scene, patriotism does not forbid it.
In looking forward to the moment, which is intended to terminate the career of my public life, my feelings do not permit me to suspend the deep acknowledgment of that debt of gratitude wch. I owe to my beloved country, for the many honors it has conferred upon me; still more for the stedfast confidence with which it has supported me; and for the opportunities I have thence enjoyed of manifesting my inviolable attachment, by services faithful and persevering, though in usefulness unequal to my zeal. If benefits have resulted to our country from these services, let it always be remembered to your praise, and as an instructive example in our annals, that, under circumstances in which the Passions agitated in every direction were liable to mislead, amidst appearances sometimes dubious, viscissitudes of fortune often discouraging, in situations in which not unfrequently want of Success has countenanced the spirit of criticism, the constancy of your support was the essential prop of the efforts, and a guarantee of the plans by which they were effected. Profoundly penetrated with this idea, I shall carry it with me to my grave, as a strong incitement to unceasing vows that Heaven may continue to you the choicest tokens of its beneficence; that your Union and brotherly affection may be perpetual; that the free constitution, which is the work of your hands, may be sacredly maintained; that its Administration in every department may be stamped with wisdom and Virtue; that, in fine, the happiness of the people of these States, under the auspices of liberty, may be made complete, by so careful a preservation and so prudent a use of this blessing as will acquire to them the glory of recommending it to the applause, the affection, and adoption of every nation which is yet a stranger to it.
Here, perhaps, I ought to stop. But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger, natural to that solicitude, urge me on an occasion like the present, to offer to your solemn contemplation, and to recommend to your frequent review, some sentiments; which are the result of much reflection, of no inconsiderable observation, and which appear to me all important to the permanency of your felicity as a People. These will be offered to you with the more freedom, as you can only see in them the disinterested warnings of a parting friend, who can possibly have no personal motive to biass his counsel. Nor can I forget, as an encouragement to it, your endulgent reception of my sentiments on a former and not dissimilar occasion[.]1
Interwoven as is the love of liberty with every ligament of your hearts, no recommendation of mine is necessary to fortify or confirm the attachment.
The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize. But as it is easy to foresee, that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual and immoveable attachment to it; accustoming yourselves to think and speak of it as of the Palladium2 of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned, and indignantly frowning upon the first dawning of every attempt to alienate any portion of our Country from the rest, or to enfeeble the sacred ties which now link together the various parts.
For this you have every inducement of sympathy and interest. Citizens by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you, in your national capacity, must always exalt the just pride of Patriotism, more than any appellation derived from local discriminations. With slight shades of difference, you have the same Religion, Manners, Habits and political Principles. You have in a common cause fought and triumphed together. The independence and liberty you possess are the work of joint councils, and joint efforts; of common dangers, sufferings and successes.
But these considerations, however powerfully they address themselves to your sensibility are greatly outweighed by those which apply more immediately to your Interest. Here every portion of our country finds the most commanding motives for carefully guarding and preserving the Union of the whole.
The North, in an unrestrained intercourse with the South, protected by the equal Laws of a common government, finds in the productions of the latter, great additional resources of Maratime and commercial enterprise and precious materials of manufacturing industry. The South in the same Intercourse, benefitting by the Agency of the North, sees its agriculture grow and its commerce expand. Turning partly into its own channels the seamen of the North, it finds its particular navigation envigorated; and while it contributes, in different ways, to nourish and increase the general mass of the National navigation, it looks forward to the protection of a Maratime strength, to which itself is unequally adapted. The East, in a like intercourse with the West, already finds, and in the progressive improvement of interior communications, by land and water, will more and more find a valuable vent for the commodities which it brings from abroad, or manufactures at home. The West derives from the East supplies requisite to its growth and comfort, and what is perhaps of still greater consequence, it must of necessity owe the secure enjoyment of indispensable outlets for its own productions to the weight, influence, and the future Maritime strength of the Atlantic side of the Union, directed by an indissoluble community of Interest as one Nation. Any other tenure by which the West can hold this essential advantage, whether derived from its own seperate strength, or from an apostate3 and unnatural connection with any foreign Power, must be intrinsically precarious.
While then every part of our country thus feels an immediate and particular Interest in Union, all the parts combined cannot fail to find in the united mass of means and efforts greater strength, greater resource, proportionably greater security from external danger, a less frequent interruption of their Peace by foreign Nations; and, what is of inestimable value! they must derive from Union an exemption from those broils and Wars between themselves, which so frequently afflict neighbouring countries, not tied together by the same government; which their own rivalships alone would be sufficient to produce, but which opposite foreign alliances, attachments and intriegues would stimulate and imbitter. Hence likewise they will avoid the necessity of those overgrown Military establishments, which under any form of Government are inauspicious to liberty, and which are to be regarded as particularly hostile to Republican Liberty: In this sense it is, that your Union ought to be considered as a main prop of your liberty, and that the love of the one ought to endear to you the preservation of the other.
These considerations speak a persuasive language to every reflecting and virtuous mind, and exhibit the continuance of the Union as a primary object of Patriotic desire. Is there a doubt, whether a common government can embrace so large a sphere? Let experience solve it. To listen to mere speculation in such a case were criminal. We are authorized to hope that a proper organization of the whole, with the auxiliary agency of governments for the respective Sub divisions, will afford a happy issue to the experiment. ’Tis well worth a fair and full experiment. With such powerful and obvious motives to Union, affecting all parts of our country, while experience shall not have demonstrated its impracticability, there will always be reason, to distrust the patriotism of those, who in any quarter may endeavor to weaken its bands.
In contemplating the causes wch. may disturb our Union, it occurs as matter of serious concern, that any ground should have been furnished for characterizing parties by Geographical discriminations: Northern and Southern; Atlantic and Western; whence4 designing men may endeavour to excite a belief that there is a real difference of local interests and views. One of the expedients of Party to acquire influence, within particular districts, is to misrepresent the opinions and aims of other Districts. You cannot shield yourselves too much against the jealousies and heart burnings which spring from these misrepresentations. They tend to render Alien to each other those who ought to be bound together by fraternal affection. The Inhabitants of our Western country have lately had a useful lesson on this head. They have seen, in the Negociation by the Executive, and in the unanimous ratification by the Senate, of the Treaty with Spain, and in the universal satisfaction at that event, throughout the United States, a decisive proof how unfounded were the suspicions propagated among them of a policy in the General Government and in the Atlantic States unfriendly to their Interests in regard to the Mississippi. They have been witnesses to the formation of two Treaties, that with G: Britain and that with Spain, which secure to them every thing they could desire, in respect to our Foreign relations, towards confirming their prosperity. Will it not be their wisdom to rely for the preservation of these advantages on the Union by wch. they were procured? Will they not henceforth be deaf to those advisers, if such there are, who would sever them from their Brethren and connect them with Aliens?
To the efficacy and permanency of Your Union, a Government for the whole is indispensable. No Alliances however strict between the parts can be an adequate substitute. They must inevitably experience the infractions and interruptions which all Alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a Constitution of Government, better calculated than your former for an intimate Union, and for the efficacious management of your common concerns. This government, the offspring of our own choice uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its Laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true Liberty. The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all. The very idea of the power and the right of the People to establish Government presupposes the duty of every Individual to obey the established Government.
All obstructions to the execution of the Laws, all combinations and Associations, under whatever plausible character, with the real design to direct, controul[,] counteract, or awe the regular deliberation and action of the Constituted authorities are distructive of this fundamental principle and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put in the place of the delegated will of the Nation, the will of a party; often a small but artful and enterprizing minority of the Community; and, according to the alternate triumphs of different parties, to make the public administration the Mirror of the ill concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common councils and modefied by mutual interests. However combinations or Associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious and unprincipled men will be enabled to subvert the Power of the People, and to usurp for themselves the reins of Government; destroying afterwards the very engines which have lifted them to unjust dominion.
Towards the preservation of your Government and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of Governments, as of other human institutions; that experience is the surest standard, by which to test the real tendency of the existing Constitution of a country; that facility in changes upon the credit of mere hypotheses and opinion exposes to perpetual change, from the endless variety of hypotheses and opinion: and remember, especially, that for the efficient management of your common interests, in a country so extensive as ours, a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable. Liberty itself will find in such a Government, with powers properly distributed and adjusted, its surest Guardian. It is indeed little else than a name, where the Government is too feeble to withstand the enterprises of faction, to confine each member of the Society within the limits prescribed by the laws and to maintain all in the secure and tranquil enjoyment of the rights of person and property.
I have already intimated to you the danger of Parties in the State, with particular reference to the founding of them on Geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the Spirit of Party, generally[.]
This spirit, unfortunately, is inseperable from our nature, having its root in the strongest passions of the human Mind. It exists under different shapes in all Governments, more or less stifled, controuled, or repressed; but, in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.
The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissention, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an Individual: and sooner or later the chief of some prevailing faction more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.
Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of Party are sufficient to make it the interest and the duty of a wise People to discourage and restrain it.
It serves always to distract the Public Councils and enfeeble the Public administration. It agitates the Community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country, are subjected to the policy and will of another.
There is an opinion that parties in free countries are useful checks upon the Administration of the Government and serve to keep alive the spirit of Liberty. This within certain limits is probably true, and in Governments of a Monarchical cast Patriotism may look with endulgence, if not with favour, upon the spirit of party. But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched; it demands a uniform vigilance to prevent its bursting into a flame, lest instead of warming it should consume.
It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power; by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.
Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.
’Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free Government. Who that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric[.]
Promote then as an object of primary importance, Institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened[.]
As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible: avoiding occasions of expence by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expence, but by vigorous exertions in time of Peace to discharge the Debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burthen which we ourselves ought to bear. The execution of these maxims belongs to your Representatives, but it is necessary that public opinion should cooperate. To facilitate to them the performance of their duty, it is essential that you should practically bear in mind, that towards the payment of debts there must be Revenue; that to have Revenue there must be taxes; that no taxes can be devised which are not more or less inconvenient and unpleasant; that the intrinsic embarrassment inseperable from the selection of the proper objects (which is always a choice of difficulties) ought to be a decisive motive for a candid construction of the Conduct of the Government in making it, and for a spirit of acquiescence in the measures for obtaining Revenue which the public exigencies may at any time dictate.
Observe good faith and justice towds. all Nations. Cultivate peace and harmony with all. Religion and morality enjoin this conduct; and can it be that good policy does not equally enjoin it? It will be worthy of a free, enlightened, and, at no distant period, a great Nation, to give to mankind the magnanimous and too novel example of a People always guided by an exalted justice and benevolence. Who can doubt that in the course of time and things the fruits of such a plan would richly repay any temporary advantages wch. might be lost by a steady adherence to it? Can it be, that Providence has not connected the permanent felicity of a Nation with its virtue? The experiment, at least, is recommended by every sentiment which ennobles human Nature. Alas! is it rendered impossible by its vices?
In the execution of such a plan nothing is more essential than that permanent, inveterate antipathies against particular Nations and passionate attachments for others should be excluded; and that in place of them just and amicable feelings towards all should be cultivated. The Nation, which indulges towards another an habitual hatred, or an habitual fondness, is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest. Antipathy in one Nation against another, disposes each more readily to offer insult and injury, to lay hold of slight causes of umbrage, and to be haughty and intractable, when accidental or trifling occasions of dispute occur. Hence frequent collisions, obstinate envenomed and bloody contests. The Nation, prompted by illwill and resentment sometimes impels to War the Government, contrary to the best calculations of policy. The Government sometimes participates in the national propensity, and adopts through passion what reason would reject; at other times, it makes the animosity of the Nation subservient to projects of hostility instigated by pride, ambition and other sinister and pernicious motives. The peace often, sometimes perhaps the Liberty, of Nations has been the victim.
So likewise, a passionate attachment of one Nation for another produces a variety of evils. Sympathy for the favourite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and Wars of the latter, without adequate inducement or justification: It leads also to concessions to the favourite Nation of priviledges denied to others, which is apt doubly to injure the Nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill will, and a disposition to retaliate, in the parties from whom eql. priviledges are withheld: And it gives to ambitious, corrupted, or deluded citizens (who devote themselves to the favourite Nation) facility to betray, or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding with the appearances of a virtuous sense of obligation[,] a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition[,] corruption or infatuation.
As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent Patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public Councils! Such an attachment of a small or weak, towards a great and powerful Nation, dooms the former to be the satellite of the latter.
Against the insidious wiles of foreign influence, (I conjure5 you to believe me fellow citizens) the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government. But that jealousy to be useful must be impartial; else it becomes the instrument of the very influence to be avoided, instead of a defence against it. Excessive partiality for one foreign nation and excessive dislike of another, cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other. Real Patriots, who may resist the intriegues of the favourite, are liable to become suspected and odious; while its tools and dupes usurp the applause and confidence of the people, to surrender their interests.
The Great rule of conduct for us, in regard to foreign Nations is in extending our commercial relations to have with them as little political connection as possible. So far as we have already formed engagements let them be fulfilled, with perfect good faith. Here let us stop.
Europe has a set of primary interests, which to us have none, or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence therefore it must be unwise in us to implicate ourselves, by artificial ties, in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships, or enmities[.]
Our detached and distant situation invites and enables us to pursue a different course. If we remain one People, under an efficient government, the period is not far off, when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest guided by our justice shall Counsel.
Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European Ambition, Rivalship, Interest, Humour or Caprice?
’Tis our true policy to steer clear of permanent Alliances, with any portion of the foreign world. So far, I mean, as we are now at liberty to do it, for let me not be understood as capable of patronising infidility to existing engagements (I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy). I repeat it therefore, let those engagements be observed in their genuine sense. But in my opinion, it is unnecessary and would be unwise to extend them.
Taking care always to keep ourselves, by suitable establishments, on a respectably defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.
Harmony, liberal intercourse with all Nations, are recommended by policy, humanity and interest. But even our Commercial policy should hold an equal and impartial hand: neither seeking nor granting exclusive favours or preferences; consulting the natural course of things; diffusing and deversifying by gentle means the streams of Commerce, but forcing nothing; establishing with Powers so disposed[,] in order to give to trade a stable course, to define the rights of our Merchants, and to enable the Government to support them; conventional rules of intercourse, the best that present circumstances and mutual opinion will permit, but temporary, and liable to be from time to time abandoned or varied, as experience and circumstances shall dictate; constantly keeping in view, that ’tis folly in one Nation to look for disinterested favors from another; that it must pay with a portion of its Independence for whatever it may accept under that character; that by such acceptance, it may place itself in the condition of having given equivalents for nominal favours and yet of being reproached with ingratitude for not giving more. There can be no greater error than to expect, or calculate upon real favours from Nation to Nation. ’Tis an illusion which experience must cure, which a just pride ought to discard.
In offering to you, my Countrymen these counsels of an old and affectionate friend, I dare not hope they will make the strong and lasting impression, I could wish; that they will controul the usual current of the passions, or prevent our Nation from running the course which has hitherto marked the Destiny of Nations: But if I may even flatter myself, that they may be productive of some partial benefit, some occasional good; that they may now and then recur to moderate the fury of party spirit, to warn against the mischiefs of foreign Intriegue, to guard against the Impostures of pretended patriotism; this hope will be a full recompence for the solicitude for your welfare, by which they have been dictated.
How far in the discharge of my Official duties, I have been guided by the principles which have been delineated, the public Records and other evidences of my conduct must Witness to You and to the world. To myself, the assurance of my own conscience is, that I have at least believed myself to be guided by them.
In relation to the still subsisting War in Europe, my Proclamation of the 22d. of April 1793 is the index to my Plan.6 Sanctioned by your approving voice and by that of Your Representatives in both Houses of Congress, the spirit of that measure has continually governed me; uninfluenced by any attempts to deter or divert me from it.
After deliberate examination with the aid of the best lights I could obtain I was well satisfied that our Country, under all the circumstances of the case, had a right to take, and was bound in duty and interest, to take a Neutral position. Having taken it, I determined, as far as should depend upon me, to maintain it, with moderation, perseverence and firmness.
The considerations, which respect the right to hold this conduct, it is not necessary on this occasion to detail. I will only observe, that according to my understanding of the matter, that right, so far from being denied by any of the Belligerent Powers has been virtually admitted by all.
The duty of holding a Neutral conduct may be inferred, without any thing more, from the obligation which justice and humanity impose on every Nation, in cases in which it is free to act, to maintain inviolate the relations of Peace and amity towards other Nations.
The inducements of interest for observing that conduct will best be referred to your own reflections and experience. With me, a predominant motive has been to endeavour to gain time to our country to settle and mature its yet recent institutions, and to progress without interruption, to that degree of strength and consistency, which is necessary to give it, humanly speaking, the command of its own fortunes.
Though in reviewing the incidents of my Administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be I fervently beseech the Almighty to avert or mitigate the evils to which they may tend. I shall also carry with me the hope that my Country will never cease to view them with indulgence; and that after forty five years of my life dedicated to its Service, with an upright zeal, the faults of incompetent abilities will be consigned to oblivion, as myself must soon be to the Mansions of rest.
Relying on its kindness in this as in other things, and actuated by that fervent love towards it, which is so natural to a Man, who views in it the native soil of himself and his progenitors for several Generations; I anticipate with pleasing expectation that retreat, in which I promise myself to realize, without alloy, the sweet enjoyment of partaking, in the midst of my fellow Citizens, the benign influence of good Laws under a free Government, the ever favourite object of my heart, and the happy reward, as I trust, of our mutual cares, labours and dangers.
This book is set in Adobe Garamond. Robert Slimbach modeled his 1989 design of Claude Garamond’s type on sixteenth-century original manuscripts. The companion italic was drawn from the types of Robert Granjon, a contemporary of Garamond.
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[1. ]I.e., from the British High Command, which was in New York from 1776 (the Battle of Long Island) until November 1783 (the war’s end).
[2. ]After reading these remarks, Washington prepared to read a letter from a Congressional delegate, but then stopped to put on eyeglasses, saying: “Gentlemen, you will permit me to put on my spectacles, for I have not only grown gray, but almost blind, in the service of my country”; this has also been reported as: “Gentlemen, you must pardon me. I have grown gray in your service and now find myself growing blind.” Some of the officers—having been assembled by Washington to check a rebellious spirit among them—were moved to tears.
[3. ]Abandoning one’s religious faith, political party, or cause.
[4. ]From which or upon which.
[5. ]To implore or entreat solemnly.
[6. ]Termed by historians the Proclamation of Neutrality, and discussed by Marshall in chapter 30 (and subsequently), above.
James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000). Chapter: The Amended Constitution
Accessed from oll.libertyfund.org/title/679/68562 on 2010-02-10
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
The following summary of Amendments XI–XXVII completes this introduction to the constitutional principles of American government, bringing the reader up-to-date on formal changes of our political system that have been made since the founding period.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Article III, Section 2 extends the judicial power to “cases or controversies between a State and citizens of another State.” In Chisholm v. Georgia (1793), the Supreme Court turned a deaf ear to Georgia’s claim of “sovereign immunity,” and interpreted the clause literally to mean that a citizen of the State of South Carolina could sue the State of Georgia without its consent.
The Eleventh Amendment reversed that decision, thereby limiting Federal judicial power, at least in theory. In reality, it affords the States little protection against Federal courts. The Supreme Court has interpreted the Amendment to mean that any citizen can sue a State official if that official is allegedly acting in an illegal or unconstitutional manner. The Court has reasoned that a State officer who acts beyond the law ceases to be an official of his State. Congress also frequently gets around the Amendment by conditioning State participation in Federal programs on the States’ willingness to waive immunity.
The Fourteenth Amendment, which prohibits the States from denying any person life, liberty, or property without due process of law or equal protection of the law, also blunts the effect of the Eleventh Amendment. The Supreme Court has held under this Amendment that Federal courts may stop State officials from enforcing a State law, even if its constitutionality has not yet been determined and has simply been challenged. The Court has also held that the Eleventh Amendment is limited by the Enforcement Clause of the Fourteenth Amendment, and that Congress may authorize persons to sue the States, cities, and counties directly, rather than State officers, to remedy denials of due process and equal protection.
The Electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.—] The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
This Amendment is an example of how custom and usage have changed the Constitution. The Framers expected electors to be independent, distinguished citizens, but the rise of national political parties changed the character of the Electoral College.
By the election of 1800, Electors had come to be the party faithful, pledged to vote for their party’s candidate. In this election, the Jeffersonian Republicans held a majority in the Electoral College. They voted without indicating their choice for President and Vice President, as Article II, Section 3 prescribed, but because they were voting along party lines, Thomas Jefferson and Aaron Burr received the same number of votes, even though Burr was the vice presidential candidate. The issue was settled by the House of Representatives, which gave the presidency to Jefferson.
The Twelfth Amendment was designed to prevent a recurrence of this situation by requiring Electors to cast separate votes for President and Vice President.
section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
section 2. Congress shall have power to enforce this article by appropriate legislation.
This is the first of the three Civil War or Reconstruction Amendments. Prior to its adoption, the States were free to decide for themselves whether to permit or prohibit slavery within their borders. The Thirteenth Amendment deprives both the State and Federal governments of this power, and forbids slavery and involuntary servitude. It does not prohibit compulsory labor and other forms of “involuntary servitude” associated with the punishment and treatment of criminals.
Prolonged angry debates over slavery, in the Congress and elsewhere, ended in violence—and in constitutional amendments that would produce striking political and social changes in America. By March 1861, when the southern States already had seceded from the Union and formed their Confederacy, Congress was considering a constitutional amendment which, if ratified, would have been the Thirteenth Amendment. (The Senate rejected this proposed amendment on March 2, just two days before the inauguration of Abraham Lincoln as President.) The text of this proposal, intended to conciliate the South and preserve the Union, ran as follows: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere within any State with the domestic institutions thereof including that of persons held to labor or service by the laws of said State.”
This proposed but rejected Amendment XIII, in other words, would have forbidden the Federal government ever to interfere with slavery in States that desired to retain chattel slavery. But on April 12, 1861, Confederates fired on Fort Sumter, in Charleston harbor, and the Civil War began. Everyone forgot about the amendment that would have protected the “Peculiar Institution” of slavery.
By the end of 1862, it was uncertain whether the North or the South would win the terrible struggle. In December, Union armies suffered severe defeats in Virginia and Mississippi. Alarmed by the Confederates’ successes, on January 1, 1863, President Lincoln issued the Emancipation Proclamation as an emergency measure, setting free all slaves within the “rebellious” states—that is, the Confederacy. This was a wartime device to damage the South’s economy and produce disorder there. The Proclamation did not emancipate slaves in the “loyal slave states”—Delaware, Maryland, Kentucky, Missouri—nor did it guarantee that slavery might not be restored after the end of the war. Besides, many men in Congress believed the Emancipation Proclamation to be unconstitutional.
So a year later, in January 1864, there was introduced in Congress a proposal for a constitutional amendment that would forbid slavery anywhere in the Union. This joint resolution was passed by the Senate in April, but rejected by the House in June. Not until January 1865 did the House of Representatives approve the proposed amendment—and then by a narrow margin and after much persuasion. By that time the Confederacy clearly was losing the war. On December 18, 1865, enough States had ratified this new Thirteenth Amendment, and it became part of the Constitution—the first amendment since 1804.
In Section 2, we encounter for the first time in the Constitution an odd provision that will be repeated in the Fourteenth, Fifteenth, and later amendments. This is the Enforcement Clause, which seemingly confers a non-legislative power on Congress to enforce the Thirteenth Amendment by appropriate legislation.
section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House remove such disability.
section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This second Civil War or Reconstruction Amendment accounts for more than half of all cases heard in the Supreme Court nowadays.
Divided into five parts, the Fourteenth Amendment’s first section confers State and Federal citizenship on all persons born or naturalized in the United States, irrespective of race. It overturns the Dred Scott Case, which had held that blacks were not eligible for citizenship and therefore could not claim the privileges and immunities of American citizens.
Section 1 further provides that no State may abridge the privileges or immunities of United States citizens. The meaning of this confusing clause is obscured by the fact that it fails to define the nature and substance of these privileges and immunities. It should be distinguished from the privileges and immunities clause of Article IV of the Constitution, which requires the States to grant the same privileges and immunities (whatever the State determines them to be) to out-of-State citizens that it grants to its own citizens. The privileges and immunities of State citizens, in other words, vary from State to State. They are normally associated with such activities as the privilege of engaging in a trade or business, the use and enjoyment of State lands, and other privileges as opposed to basic fundamental rights.
In the Slaughter-House Cases (1873), the Supreme Court held that the privileges and immunities of United States, as opposed to State, citizens are not the same as the freedoms guaranteed by the Bill of Rights. Rather, they include privileges which owe their existence to the Constitution, Federal laws and treaties, such as the privilege to engage in interstate or foreign commerce, protection on the high seas and in foreign countries, and the privilege of voting in Federal elections. Thus limited, the privileges and immunities clause of the Fourteenth Amendment has never had much significance.
Section 1 of the Fourteenth Amendment also provides that no State shall deprive any person of life, liberty, or property without due process of law. This is the Due Process Clause that has become the primary source of civil rights litigation in today’s Federal courts.
The clause does not forbid a State from taking one’s life, liberty, or property. It provides merely that if these rights are to be denied, they must be denied according to the standards of due process. The concept of due process, we are reminded, dates back to Magna Charta (1215). As developed over time by the Anglo-American courts, the concept of due process came to mean that the individual, particularly in a criminal trial, was entitled to a fair trial. This meant that rich or poor, black or white, the defendant’s trial would be conducted according to the same rules and requirements of evidence, testimony, and the make-up of the jury.
By the end of the nineteenth century, the Supreme Court had expanded the Due Process Clause of the Fourteenth Amendment in two ways: (1) By looking beyond procedure to substance or the actual result of the trial. In a series of cases involving alleged denials of economic liberty, the Court held that the determination of whether there had been a denial of due process did not depend upon procedure alone, but whether liberty had been abridged in the end result. This interpretation came to be known as “substantive due process.” (2) The due process requirement, as originally conceived, was designed essentially to limit the courts and to make certain that they conducted fair trials. Under the doctrines of substantive due process, however, the standards of due process were applied to laws, not just trials, to limit the powers of the State legislatures and local governments.
Thus in a series of cases extending from the 1880s to 1937, the Supreme Court applied the concept of substantive or “economic” due process to strike down countless State laws that allegedly interfered with economic rights and had nothing to do with fair trials. In Lockner v. New York (1905), for example, the Court invalidated a State law limiting the working hours of bakery employees as a violation of “liberty of contract.” In West Coast Hotel v. Parrish (1937), however, the Court suddenly abandoned this doctrine, taking a “hands-off” position that State legislatures should have broad discretion to regulate the conditions of employment as they saw fit.
Meanwhile, however, the Court began moving in yet another direction during this period with respect to non-economic freedoms. In Gitlow v. New York (1925), the Court applied its substantive due process rationale to the First Amendment. This Amendment, like the remaining portions of the Bill of Rights, applies only to the Federal government. The Court held in Gitlow, however, that the First Amendment also limited the States. The Court reasoned that the word “liberty” in the Due Process Clause of the Fourteenth Amendment, which prohibits a State from denying any person life, liberty, or property in a trial, also means liberty of speech and press. It is questionable whether the members of Congress who wrote the Fourteenth Amendment intended for it to be interpreted in this manner. This was the beginning of what has come to be known as the Supreme Court’s doctrine of “incorporation,” a rule of interpretation we have discussed before which holds that the various freedoms protected against Federal abridgment in the Bill of Rights may be “incorporated” or “absorbed” into the word “liberty” of the Due Process Clause of the Fourteenth Amendment to restrict the States.
The remaining provision of Section 1 of the Fourteenth Amendment prohibits the States from denying any person the equal protection of the laws. The Equal Protection Clause has been instrumental in striking down State laws that discriminate against racial minorities, religious minorities, and women. In the landmark case of Brown v. Board of Education (1954), the Supreme Court held that racial segregation in the public schools was discriminatory and therefore contrary to the equal protection of the laws. In this decision, the Court rejected its earlier holding in Plessy v. Ferguson (1896) which had maintained that “separate but equal” facilities for whites and blacks were not discriminatory.
The Equal Protection Clause, as interpreted by the Courts, does not demand a rigid equality in all respects. The basic test used by the Court is whether the distinction complained of is “reasonable.” One way of deciding is to determine whether the group singled out favors or opposes the different treatment. If it tends to favor it, the group may be enjoying a particular privilege—as suggested, for example, by the military draft, which in the United States has always excluded women. If the group selected for unequal treatment tends to oppose it, however, the group may be experiencing unwarranted discrimination—as suggested by a law which arbitrarily excludes women or minorities from a certain profession.
Sections 2, 3, and 4 of the Fourteenth Amendment are largely of historical interest today. Section 2 modifies Article I, Section 2, Clause 3 of the Constitution, which provided that slaves should be counted at three-fifths of the number of free persons in apportioning representatives. Section 2 of the Fourteenth Amendment, taking account of the Thirteenth Amendment abolishing slavery, eliminates the three-fifths clause.
The other provision of this section authorizing Congress to reduce the number of representatives to which a State is entitled in the House of Representatives has never been enforced. It was intended to give Congress a retaliatory power against Confederate States which denied blacks the right to vote. It is also inconsistent with the Nineteenth Amendment, which extends the franchise to women, and the Twenty-Sixth Amendment, which lowers the voting age to eighteen.
Section 3 of the Fourteenth Amendment, designed by the triumphant Radical Republicans in Congress to punish the South and prevent any of its political or military leaders from assuming State or Federal office, rendered most former Confederate officials ineligible to serve in Congress, the Federal Judiciary, the executive branch of the United States government, the U.S. military, any State office, or in the Electoral College. Another objective of this section was to enhance the political power of “carpetbaggers” and “scalawags,” who could be counted upon to support the policies of the Radical Republicans.
President Andrew Johnson opposed this provision on the ground that it improperly restricted his power to pardon the leaders of the Confederacy and restore their political and civil rights. Not until 1898 did Congress pass legislation removing the disability.
Inspired by the desire to remove all doubt concerning the validity of financial obligations incurred by the Federal government during the Civil War, Section 4 of the Fourteenth Amendment simply reaffirmed the debts of the Union and invalidated those of the Confederacy.
This Section forbids both Federal and State governments to pay any debts contracted by a State that belonged to the Confederacy, “or any claim for the loss or emancipation of any slave.” (This latter prohibition of payment applied to slaves and slave owners in the “loyal free States,” as well as to those in the “rebellious States”—in effect, denying the guarantee that no property shall be taken without just compensation.)
With the Fourteenth Amendment, the powers of the several States began to dwindle. For the defeated eleven States that had joined the Confederacy to be readmitted to the Union, they were required first to ratify this Fourteenth Amendment, much though the people of those eleven States might dislike its provisions. Also, there were loud complaints in most southern States that political trickery and intimidation had been employed to secure ratification of the Amendment. About Amendment XIV, then, hangs a cloud; and interpretation of that Amendment continues to be controversial in today’s courts.
section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
section 2. The Congress shall have power to enforce this article by appropriate legislation.
This is the third and last Civil War or Reconstruction Amendment. Its original purpose was to extend the franchise to the newly emancipated slaves. The Fifteenth Amendment does not technically give blacks the right to vote as such, but instead informs the States that race cannot be one of the factors it uses in determining voter qualifications. In effect, however, the Amendment as interpreted by the Supreme Court confers a right to vote upon all blacks who otherwise meet a State’s eligibility standards regarding such matters as age and residency. The Supreme Court has also held that the right extends beyond the general election to primary elections.
Section 2 of the Fifteenth Amendment repeats the Enforcement Clause language of the Thirteenth and Fourteenth amendments. Congress rarely used this power before it enacted the Voting Rights Act of 1965 and its ensuing amendments. Under this Act, Congress abolished literacy tests and racial gerrymandering, thereby prohibiting the States and their political subdivisions from intentionally “watering down” the black vote by drawing up electoral districts that reduce the impact of the black vote or reduce the chances of electing a black candidate to office. The Act also restricts the States in those instances where the drawing of electoral districts simply results in a dilution of black voting strength, whether by accident or design.
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
In Pollack v. Farmer’s Loan & Trust (1895), the Supreme Court held unconstitutional an Act of Congress establishing an income tax derived from property. An income tax, said the Court, is a “direct” tax, and Article I, Section 2, Clause 3 and Article I, Section 9, Clause 4 of the Constitution specify that direct taxes must be apportioned according to population. Such apportionment might be possible under a uniform capitation tax, but not under an income tax based on property.
The Sixteenth Amendment overturned the Pollock case, authorizing Congress to levy a tax on income, whatever its source, without apportionment. This Amendment strengthens the tax power of Congress, but necessarily reduces the power of States by reducing their tax base. In other words, there is less tax revenue available to the States as a result of this Amendment because there is less to collect after the Federal government has levied its tax. In this respect, the Sixteenth Amendment vitally affects the institution of federalism.
The Sixteenth Amendment, then, altered the relationships between the Federal government and the State governments. For Washington now enjoyed means for raising money more efficient than the means most States possessed. Beginning in the era of Franklin Roosevelt, the Congress found it expedient to secure cooperation from State legislatures by offering the States grants of money for purposes approved by the Federal government. Often the State could obtain the “grant-in-aid” by matching the Federal contribution; sometimes Washington required that the States contribute only a small percentage of the total costs, or perhaps nothing at all.
Thus increasingly, since the Second World War, the Federal government has paid the bills for large public projects and induced or compelled State governments to adopt and administer Federal programs. Federal funds are awarded for compliance or withheld for lack of cooperation from a State. States that do not comply “lose” Federal money given to other States. The result of this policy has been to diminish greatly the power of the State governments to make their own decisions, so shifting the political structure of the United States toward centralization, and toward policy-making by an elite of central administrators, rather than through the established processes of a democratic republic.
A recent example of how Federal grants may be used to “bribe” or compel State governments to obey Congress’s will—or perhaps the will of lobbyists in Washington who bring pressure to bear upon members of Congress—is the requirement that State governments must make the use of seat-belts in all automobiles compulsory, on pain of losing Federal funds for highway-building if a State fails to comply. In the past, States have also run the risk of losing Federal highway funds if they refused—as did California—to require motorcyclists to wear helmets. Such concerns formerly were regarded as falling wholly within the established police powers of the States. When many such decisions no longer can be made statewide or locally, but are determined in Washington by Congress, executive administrators, or interest groups—then it would seem the original federal plan of government has given way, for the most part, to a centralized political scheme not contemplated by the Constitution. But for the Income Tax Amendment, Congress would not have the financial resources that make these intrusions into the domain of State power possible.
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies; Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
The Framers of the Constitution specified in Article I, Section 3 that United States Senators should be chosen by each State legislature, two for each State, while members of the House of Representatives should be chosen by popular election from congressional districts. The main purpose of this method of indirect election of Senators was to give each State, no matter how small its population, a voice in the Congress.
In effect, each State’s two Senators thus represented the State itself, rather than the voters in particular districts; and they represented their State in the sense that each State was a sovereign political body, not simply an aggregation of voters. Senator Daniel Webster represented Massachusetts as a commonwealth with a culture of its own and interests of its own. Senator John C. Calhoun represented the proud State of South Carolina in Washington—not merely a constituency of rural voters. Sometimes it may be necessary for a public man to sacrifice himself for the people, Calhoun said on one occasion, but never to the people. Senators were delegates or symbols of their States, so to speak; and often the State legislatures, aware of senatorial dignity, chose some remarkable men as their United States Senators—at least for the first half-century of the Republic.
Senators, it was thought, would exercise a moderating influence on the popularly based House of Representatives. The Framers expected State legislatures, made up for the most part of experienced politicians, to be able to choose distinguished Senators better than could average citizens. Presumably the legislatures of the several States would tend to select senatorial candidates of superior mind, character, and education; often the Senators so chosen would also be men of some wealth—which the Framers considered all to the good. And in truth, especially in the early Republic, the Senate at Washington was a gathering of men of unusual talent and strength of character, somewhat comparable to the body of men who had been delegates to the Great Convention of 1787.
But societies change. As the franchise was enlarged in every State, the American people looked with increasing suspicion upon the indirect election of Senators. Gradually, in many States, the legislatures yielded to popular pressure, and members of those bodies pledged themselves at the time of their own election, or on some other occasion, to vote for some particular candidate for the United States Senate when the State legislature chose the next Senator. This was the process that had converted the Electors of the Electoral College into mere registrars of the popular choice for the Presidency. In theory, then, United States Senators still were chosen by legislatures. But in reality, State legislators voted for senatorial candidates quite as their constituents told them to vote. When the Senate finally capitulated in 1912, the voters in some twenty-nine States had already obtained the right to indicate their preferences for Senator in the party primaries—and State legislatures invariably followed the wishes of the voters.
Like the Sixteenth Amendment, the Seventeenth grew out of the Populist and Progressive revolt of the late nineteenth and early twentieth centuries. Generally favoring more democracy in every aspect of political life, State as well as Federal, the Populists and Progressives launched major political reform efforts, particularly in the Deep South and west of the Mississippi River, to reduce the political and economic power of America’s burgeoning class of plutocrats—men of humble origin, often, who had become wealthy almost overnight as a result of the industrial revolution and exerted a powerful influence in State governments.
In the legendary stories of Horatio Alger, they were America’s heroes, symbols of the American success story—immigrants, perhaps, who through self-sacrifice and hard work had risen to the top. To the Populists and Progressives, however, they were often the proverbial business tycoons—greedy capitalists, they charged, who engaged in monopolistic practices to maximize their wealth and used their wealth to buy votes in legislative bodies, courts of law, and governors’ mansions. The restructuring of State Constitutions throughout the country at this time—for the purpose of circumventing State legislatures through the initiative and referendum devices, and controlling the courts through the election or recall of judges—was the fruit of their labor.
Whereas the Sixteenth Amendment promised to limit the wealth and economic power of these millionaire industrialists, the Seventeenth was premised on the assumption that the direct election of Senators would limit their political influence. Many Senators were millionaires themselves, and many more, it was generally believed, were obligated to special economic interests. The wealthy might bribe State legislators but they could not bribe the entire electorate. The direct election of Senators, thought the Populists and Progressives, would cure the evils of Big Business, giant trusts, and corporate monopolies. Buttressed by the Sixteenth Amendment, the Seventeenth might then prepare the way for breaking up great concentrations of wealth and, hoped some of the more radical Populists, lead to a redistribution of wealth. But some argue that no conspicuous improvement in the talents and character of members of the Senate seems to have been the result of this Amendment.
One prominent public leader of recent decades, Eugene McCarthy—United States Senator from Minnesota for two terms—remarks in his book Frontiers of American Democracy that the Seventeenth Amendment did harm to the quality of the United States Senate. A principal reason for this is the fact that although a Representative in the House has to please only his constituents in his district, a United States Senator must campaign statewide—and wander about his State fairly frequently, if he wishes to remain in office. Much of his time is wasted in perpetual campaigning. Besides, the campaign expenditures of a senatorial candidate, both in the primary and in the regular election, usually are gigantic; this money must be found somewhere; so either a candidate’s family must be very wealthy, and have wealthy friends, or else the candidate may find it necessary to make promises to special interests, or voting blocs that he cannot fulfill or ought not to fulfill. It is noteworthy that most Senators today are very well-to-do, and many are multimillionaires. The task of courting an immense State-wide electorate may invite as much corruption as courting a small body of State legislators ever did.
However that may be, nowadays the principal distinction between members of the House of Representatives and members of the Senate is that Senators hold office for six years, and Representatives for merely two. The longer term tends to give Senators greater independence of decision, at least during the earlier years of the six-year term, so enabling them to be something better than mere delegates to Washington.
The Seventeenth Amendment supersedes Article I, Section 3 of the Constitution. As a result, members of the United States Senate have ceased to speak for, represent, or be responsible to the State legislatures. That the change enlarged the influence of the voters and weakened that of federalism is abundantly clear.
section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Known as the Prohibition Amendment, this short-lived amendment prohibited the manufacture, sale, or transportation of intoxicating liquors throughout the United States. Although the Amendment was enthusiastically ratified by every State in the Union except Connecticut and Rhode Island, the “noble experiment” proved to be largely unenforceable. Just fourteen years after its adoption, it was repealed.
The colossal failure of the Eighteenth Amendment demonstrates the folly of using the amendment process for purposes for which it was not intended. National Prohibition was a specific public policy that could have easily been achieved by a simple Act of Congress. It would also seem that the issue should have been left for resolution by the States, as was the case prior to its adoption. The Constitution is not served well when the amendment process is used to implement specific policies that might otherwise be accomplished by a statute. Such, it would seem, is the lesson to be learned from this well-intentioned but unwise amendment. One of the more unfortunate results of this amendment is that it fostered the growth of bootleggers, which in turn gave rise to organized crime, from which the United States has not yet recovered.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
This Amendment establishing women’s suffrage is the culmination of a political reform effort that began in the 1840s. When the Amendment was first adopted, it was argued that the Amendment enlarged the electorate without a State’s consent, destroyed its autonomy, and therefore exceeded the amending power. Pointing to the Fifteenth Amendment as precedent, the Supreme Court rejected this view, and has seldom had occasion to interpret the Amendment since.
section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
This is the so-called Lame Duck Amendment. It supersedes Article I, Section 4, Clause 2 of the Constitution, which called for Congress to begin each session on the first Monday in December. Members of Congress now convene on January 3. The Amendment also changes the date when the terms of President and Vice President shall begin—from March 4 to January 20.
The Constitution does not specify a date when the terms of Senators and Representatives shall begin. It does provide, however, that one-third of the Senate and all of the Representatives shall be elected every two years. Nor does the Constitution indicate when the terms of the President and Vice President shall commence. The First Congress resolved the issue in 1789 by passing a statute providing that the terms of President and Vice President and of Senators and Representatives shall begin on March 4.
What this meant, however, was that Congress had a short session every other year. In the “off year,” when there were no elections, Congress convened on the first Monday of December and remained in session throughout much of the next year. But in the following election year, Congress was required to hold a short session because of the November elections. After convening in December, Congress had to end the session in March, when the terms expired for those Senators and Representatives defeated in the previous November elections.
These short sessions came to be known as “lame duck” sessions because they allowed members of Congress who had been defeated in the November elections (“lame ducks”) to remain in office until March of the following year, when their terms expired. It also meant that individuals elected in November had to wait for five months before taking office, and could not really begin their work until the following December—thirteen months after their election. Not the least of the difficulties solved by the Twentieth Amendment was the democratic problem of having defeated members of Congress, accountable to no one, representing their constituents for almost half a year.
An obvious question is why the Amendment was necessary since the original date of March 4 was set by statute. The answer is that the changes to January 3 and January 20 shortened the terms of those in office, and these changes would therefore have been unconstitutional if accomplished through the legislative rather than the amendment process.
Congress has fulfilled its obligations under Section 3 of the Twentieth Amendment by enacting legislation from time to time dealing with presidential succession. The Presidential Succession Act of 1947, for example, deals with the problem that would arise if both the President and Vice President died or were otherwise unable to qualify for office on or before January 20.
section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
This Amendment simply repeals the Eighteenth Amendment and restores to the States the power to regulate the manufacture, sale, and consumption of alcoholic beverages. State regulations may nevertheless be set aside by Congress under its commerce power or if they violate the Export-Import Clause.
section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
This Amendment arose out of resentment or uneasiness at President Franklin D. Roosevelt’s defiance of the “no third-term” tradition established by George Washington. Might not some man more charismatic even than Roosevelt succeed in getting elected for his whole life term—as if he were a king?
The maximum period that a person can now serve as President is ten years—two years by elevation to the office because of the death, disability, or resignation of the elected President and two elected terms of four years each. Otherwise, a person can serve no more than eight years or two terms as President as a result of the Twenty-Second Amendment.
Critics of the Amendment contend that an able and popular President, in many circumstances, is more of a treasure than a danger, and ought not to be absolutely forbidden election to a third term. In addition, this Amendment necessarily reduces the influence of a President during his second term because members of Congress have less incentive to support his policies if they know he will be retiring and cannot punish or reward them for their actions in the next administration.
section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
section 2. The Congress shall have power to enforce this article by appropriate legislation.
The purpose of this Amendment is to give residents of the District of Columbia the right to vote in presidential elections. Washington, D.C., receives three electoral votes under the Amendment since that is all that “the least populous State”—Alaska—is assigned.
section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
section 2. The Congress shall have power to enforce this article by appropriate legislation.
Known as the Poll Tax Amendment, the Twenty-Fourth Amendment eliminates the poll tax in all Federal elections. Two years after its adoption, an impatient Supreme Court curiously ruled in Harper v. Virginia Board of Electors that the Equal Protection Clause of the Fourteenth Amendment forbids a poll tax in all State elections.
section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
In retrospect, it seems that the Framers of the Constitution overlooked the problem that arises when a President is no longer able to fulfill the duties of his office because he has become physically or mentally disabled. The Twenty-Fifth Amendment attempts to resolve this problem, which became a critical one on a number of occasions in this century. Two Presidents—Wilson and Eisenhower—lay gravely ill while in office. Franklin Roosevelt was apparently senile in his last days, and Ronald Reagan was struck down by an assassin’s bullet that could have left him in a coma, as was the case when President Garfield lay unconscious for eighty days before he died. The Twenty-Fifth Amendment also deals with the contingency that arises when a President resigns from office—something that had never before happened but then occurred only seven years after the Amendment was adopted when Richard Nixon resigned to avoid removal from office.
Most of the Amendment is self-explanatory. Section 1 provides that the Vice President shall become President if the President dies in office, is removed, or resigns. Section 2 provides that the President shall nominate a Vice President when there is a vacancy in the office, and that both houses shall confirm the appointment. This provision was later implemented when Vice President Spiro Agnew resigned in 1973. President Nixon then nominated Gerald Ford for Vice President, who was promptly confirmed. When President Nixon resigned, the office of Vice President again became vacant because Ford was elevated to the presidency. President Ford in turn nominated Nelson Rockefeller to be Vice President, who served out Agnew’s term and then died shortly after leaving office.
Section 3 states the procedures that are to be followed in the event the President decides that he cannot discharge his responsibilities. When the written declaration stating that he is unable to discharge his duties is sent, the Vice President serves as Acting President until the President is able to resume his responsibilities.
Continuing, Section 4 states the procedures that are to be followed when the President is personally unable to inform the Congress that he can no longer meet his responsibilities. In this instance, the Vice President becomes Acting President whenever he and a majority of the President’s cabinet send a written declaration to Congress that the President is unable to continue. If there is a disagreement between the President on the one hand and Vice President and a cabinet majority on the other, Congress must decide whether the President is fit to resume his responsibilities. The presumption is in favor of the President, because a two-thirds vote in both houses is required to retain the Vice President as Acting President.
section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
section 2. The Congress shall have power to enforce this article by appropriate legislation.
Our Twenty-Sixth Amendment confers the right to vote on all persons who are eighteen years of age or older. The Amendment applies to State as well as national elections.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The Bill of Rights, as originally proposed in 1789 by the First Congress, contained twelve rather than ten amendments. The amendments were arranged by James Madison, then a member of the House of Representatives, not in order of importance or preference, but according to the order of the provisions of the Constitution they were intended to modify; for Madison’s original plan, soon to be rejected by the House, was to incorporate the amendments into the constitutional text.
Roger Sherman of Connecticut, who had served with Madison as a delegate to the Philadelphia Convention, led the opposition to Madison’s plan. Incorporation of the amendments, he argued, would destroy the integrity of the document, necessitating a new draft of the Constitution every time a new amendment was added. “We ought not to interweave our propositions into the work itself,” he said, “because it will be destructive of the whole fabric.” The basic principles of legal draftmanship applicable to statutory law, he reasoned, apply as well to the fundamental law: “when an alteration is made in an act, it is done by way of supplement.” Moreover, continued Sherman, Madison’s plan was not consistent with the democratic theory of the Constitution. “The Constitution is an act of the people,” he reminded his colleagues, “and ought to remain entire. But amendments will be the act of the State governments.” The House agreed and adopted Sherman’s principle of construction. This vote set the precedent for all future exercises of the amending power.
Of the twelve amendments proposed, the first two dealt with Congress rather than with individual rights. The first, a reapportionment amendment, would have altered Article I, Section 2 by tying the size of the House of Representatives to increases in population. The amendment provided that there should be one Representative for every 30,000 people until the size of the House reached 100 members, after which there would be one Representative for every 40,000 people until the House had 200 members. Congress would then set a new ratio that allowed for no more than one representative for every 50,000 people.
The scheme was hardly realistic, however, and grossly underestimated the future growth of the nation. The population of the United States at this writing, at the turn of the century, is more than 250 million people. Had this amendment been approved, it would be necessary to increase the membership of the House of Representatives from 435 (as currently set by statute) to 5,000 members! Such a large assembly obviously could not function as a legislative body. Fortunately, the proposed Reapportionment Amendment was ratified by only ten States and thus failed to be approved by the necessary three-fourths of the States, as provided by Article V of the Constitution.
The second proposed amendment, sometimes referred to as “the Congressional Pay,” “Pay Raise,” “Compensation,” or “Madison” Amendment, stipulated that no law changing the compensation of members of the House of Representatives and Senate could go into effect until after an election to the House had taken place. The purpose of this amendment was to force Representatives to go before the voters, and Senators before the State legislatures, and seek approval for salary increases before they went into effect. If a Representative or Senator was then elected after voting to increase his or her own salary, the increase was presumably acceptable to a majority of the electorate, and the legislator would receive the pay raise when he was returned to office. The broader purpose of the amendment, however, was to discourage the election of self-serving opportunists who might use public office for personal financial gain.
Madison’s “Congressional Pay Amendment” did not fare much better than the abortive Reapportionment Amendment. By 1791, only six States had ratified the proposal, and it soon fell into obscurity. With the exception of Ohio’s isolated ratification in 1873, as part of a protest against massive salary increases throughout the Federal government, and Wyoming’s ratification in 1978 to protest a 1977 Congressional pay increase, Madison’s proposal was virtually forgotten for nearly two centuries.
Beginning in 1982, an extraordinary series of events revived public interest in the moribund amendment, largely because of the diligence and perseverance of a young college student. While looking for a research topic, Gregory D. Watson, an undergraduate economics major at the University of Texas at Austin, stumbled upon the Congressional Pay Amendment. He discovered that the two unratified proposals in the original Bill of Rights contained no internal time limits for ratification, and concluded not only that the Congressional Pay Amendment was a worthy proposal, but that it was also still viable. In his research paper, he described the origin, meaning, and history of the Amendment, and argued in favor of its adoption. Theoretically, he reasoned, a proposed amendment remains valid for ratification indefinitely, unless Congress has placed a time limit upon it.
But Watson’s college instructor was unpersuaded. He gave Watson a grade of C on his paper, informing him that the Amendment was defunct and would never become a part of the Constitution. Ten years later, Watson proved his teacher wrong, as well as members of Congress, legal scholars, and historians, when the Archivist of the United States certified in 1992, after the thirty-eighth State (Michigan) had approved the measure, that the Congressional Pay Amendment had been duly ratified by three-fourths of the States. Originally the second amendment, it was now officially declared to be the Twenty-Seventh Amendment to the Constitution.
Watson’s personal triumph was unparalleled in the history of the amendment process, for the ratification of this Amendment was mainly the result of one individual’s prophetic vision, indomitable spirit, and hard labor. After leaving the University, Gregory Watson became an aide in the Texas legislature. During his free time he waged a lonely ten-year battle to generate support for the Amendment. Truly a one-man lobbying firm, Watson encouraged State legislators throughout the Union to support the Amendment. One by one, first Maine in 1983, then Colorado in 1984, the States rallied to the cause.
No doubt much of Watson’s success may be attributed to increasing public resentment at this time against various legislative devices Congress had concocted to enable members to raise their own salaries without registering a vote. One such device was the creation in 1967 of the President’s Commission on Executive, Legislative, and Judicial Salaries. The Commission’s recommendations would take effect automatically unless members of Congress registered a negative vote. Thus by merely doing nothing Federal legislators routinely enjoyed generous salary increases. The Twenty-Seventh Amendment put an end to this charade, and members of Congress are now held accountable for their salary increases.
Read also the Counter-Resolutions of the Other States and the Report of the Virginia House of Delegates
Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). Chapter: The Alien and Sedition Acts June 25, 1798: Virginia Resolutions December 21, 1798: Kentucky Resolutions November 10, 1798: Counter-resolutions of Other States 1799: Report of Virginia House of Delegates 1799
Accessed from oll.libertyfund.org/title/669/206263 on 2010-02-10
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
During 1797 and 1798, American diplomats met with officials of the French revolutionary government in an attempt to negotiate continued peace between the two countries. During these negotiations, the French officials demanded bribes totaling $1,250,000 from the Americans in exchange for continued cooperation. The French during this period were engaged in wars and attempts to overthrow governments throughout Europe. In addition, French immigrants to the United States—along with a number of immigrants from Ireland, where pro-French feeling was widespread—were engaged in political activities aimed at unseating Federalist politicians, President John Adams in particular. In response, in 1798 Adams and the Federalist-controlled legislature passed four laws, the most controversial of which were the Alien and Sedition Acts. The Alien Act authorized the president to deport aliens, in time of peace, whom he found to be “dangerous to the peace and safety of the United States.” The Sedition Act made it a high misdemeanor, punishable by fine and imprisonment, to commit any treasonable activity, which was defined to include publishing false, scandalous, and malicious writing concerning the government of the United States. Twenty-five men were arrested under this last act, most of them editors of newspapers loyal to Thomas Jefferson’s Democratic-Republican Party.
Amidst the outcry that ensued, Kentucky and Virginia passed resolutions condemning and refusing to abide by the Alien and Sedition Acts. Written, respectively, by Jefferson and his ally, James Madison, these resolutions once again raised the question of how far federal powers extended within the borders of the several states, and how far the states might go in opposing federal legislation. A number of states issued strongly worded counter-resolutions decrying what came to be called the doctrine of Nullification, according to which states could refuse to enforce or abide by particular federal laws. In response, Madison drafted a report in the Virginia legislature laying out his position on the proper relationship between state and federal sovereignty and authority.
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That it shall be lawful for the President of the United States, at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States within such time as shall be expressed in such order; which order shall be served on such alien, by delivering him a copy thereof, or leaving the same at his usual abode, and returned to the office of the Secretary of State, by the marshal, or other person, to whom the same shall be directed. And in case any alien, so ordered to depart, shall be found at large within the United States after the time limited in such order for his departure, and not having obtained a license from the President to reside therein, or having obtained such license, shall not have conformed thereto, every such alien shall, on conviction thereof, be imprisoned for a term not exceeding three years, and shall never after be admitted to become a citizen of the United States: Provided always, and be it further enacted, That if any alien so ordered to depart shall prove, to the satisfaction of the President, by evidence, to be taken before such person or persons as the President shall direct, who are for that purpose hereby authorized to administer oaths, that no injury or danger to the United States will arise from suffering such alien to reside therein, the President may grant a license to such alien to remain within the United States for such time as he shall judge proper, and at such place as he may designate. And the President may also require of such alien to enter into a bond to the United States, in such penal sum as he may direct, with one or more sufficient sureties, to the satisfaction of the person authorized by the President to take the same, conditioned for the good behaviour of such alien during his residence in the United States, and not violating his license, which license the President may revoke whenever he shall think proper.
Sect. 2. And be it further enacted, That it shall be lawful for the President of the United States, whenever he may deem it necessary for the public safety, to order to be removed out of the territory thereof any alien who may or shall be in prison in pursuance of this act; and to cause to be arrested and sent out of the United States such of those aliens as shall have been ordered to depart therefrom, and shall not have obtained a license as aforesaid, in all cases where, in the opinion of the President, the public safety requires a speedy removal. And if any alien so removed or sent out of the United States by the President shall voluntarily return thereto, unless by permission of the President of the United States, such alien, on conviction thereof, shall be imprisoned so long as, in the opinion of the President, the public safety may require.
Sect. 3. And be it further enacted, That every master or commander of any ship or vessel which shall come into any port of the United States after the first day of July next shall, immediately on his arrival, make report in writing to the collector or other chief officer of the customs of such port, of all aliens, if any on board his vessel, specifying their names, age, the place of nativity, the country from which they shall have come, the nation to which they belong and owe allegiance, their occupation, and a description of their persons, as far as he shall be informed thereof, and on failure, every such master and commander shall forfeit and pay three hundred dollars, for the payment whereof, on default of such master or commander, such vessel shall also be holden, and may by such collector or other officer of the customs be detained. And it shall be the duty of such collector or other officer of the customs, forthwith to transmit to the office of the Department of State true copies of all such returns.
Sect. 4. And be it further enacted, That the Circuit and District Courts of the United States shall respectively have cognizance of all crimes and offences against this act. And all marshals and other officers of the United States are required to execute all precepts and orders of the President of the United States, issued in pursuance or by virtue of this act.
Sect. 5. And be it further enacted, That it shall be lawful for any alien who may be ordered to be removed from the United States, by virtue of this act, to take with him such part of his goods, chattels, or other property, as he may find convenient; and all property left in the United States, by any alien who may be removed as aforesaid, shall be and remain subject to his order and disposal, in the same manner as if this act had not been passed.
Sect. 6. And be it further enacted, That this act shall continue and be in force for and during the term of two years from the passing thereof.
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing, or executing his trust or duty: and if any person or persons, with intent as aforesaid, shall counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanour, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term of not less than six months, nor exceeding five years; and further, at the discretion of the court, may be holden to find sureties for his good behaviour, in such sum, and for such time, as the said court may direct.
Sect. 2. And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States; or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States; or to resist, oppose, or defeat any such law or act; or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
Sect. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.
Sect. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, That the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.
The House, according to the standing order of the day, resolved itself into a committee of the whole on the state of the commonwealth, Mr. Caldwell in the chair; and after some time spent therein, the Speaker resumed the chair, and Mr. Caldwell reported that the committee had, according to order, had under consideration the Governor’s address, and had come to the following resolutions thereupon, which he delivered in at the clerk’s table, where they were twice read and agreed to by the House.
Passed the House of Representatives, Nov. 10th, 1798.
In Senate, November 13th, 1798, unanimously concurred in.
Approved November 16th, 1798.
By the Governor.
Secretary of State
Resolved, By the Senate and House of Representatives of the state of Delaware, in General Assembly met, That they consider the resolutions from the state of Virginia, as a very unjustifiable interference with the general government and constituted authorities of the United States, and of dangerous tendency, and therefore not a fit subject for the further consideration of the General Assembly.
Speaker of Senate.
Speaker of House of Representatives.
Resolved, That the above resolutions be signed by the Speaker of the Senate, and by the Speaker of the House of Representatives; and that the Governor of this state be requested to forward the same to the Governor of the state of Virginia.
Certain resolutions of the legislature of Virginia, passed on the twenty-first day of December last, being communicated to this Assembly,
The Legislature of Massachusetts, having taken into serious consideration the resolutions of the state of Virginia, passed the 21st day of December last, and communicated by his excellency the Governor, relative to certain supposed infractions of the Constitution of the United States, by the government thereof, and being convinced that the Federal Constitution is calculated to promote the happiness, prosperity and safety of the people of these United States, and to maintain that union of the several states, so essential to the welfare of the whole; and, being bound by solemn oath to support and defend that Constitution, feel it unnecessary to make any professions of their attachment to it, or of their firm determination to support it against every aggression, foreign or domestic.
But they deem it their duty solemnly to declare, that while they hold sacred the principle, that the consent of the people is the only pure source of just and legitimate power, they cannot admit the right of the state legislatures to denounce the administration of that government to which the people themselves, by a solemn compact, have exclusively committed their national concerns: That, although a liberal and enlightened vigilance among the people is always to be cherished, yet an unreasonable jealousy of the men of their choice, and a recurrence to measures of extremity, upon groundless or trivial pretexts, have a strong tendency to destroy all rational liberty at home, and to deprive the United States of the most essential advantages in their relations abroad: That this Legislature are persuaded, that the decision of all cases in law and equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States.
That the people in that solemn compact, which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts or measures of the Federal Government, but have confided to them the power of proposing such amendments of the Constitution, as shall appear to them necessary to the interests, or conformable to the wishes of the people whom they represent.
That by this construction of the Constitution, an amicable and dispassionate remedy is pointed out for any evil which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption.
But, should the respectable state of Virginia persist in the assumption of the right to declare the acts of the national government unconstitutional, and should she oppose successfully her force and will to those of the nation, the Constitution would be reduced to a mere cypher, to the form and pageantry of authority, without the energy of power. Every act of the Federal Government which thwarted the views, or checked the ambitious projects of a particular state, or of its leading and influential members, would be the object of opposition and of remonstrance; while the people, convulsed and confused by the conflict between two hostile jurisdictions, enjoying the protection of neither, would be wearied into a submission to some bold leader, who would establish himself on the ruins of both.
The Legislature of Massachusetts, although they do not themselves claim the right, nor admit the authority, of any of the state governments to decide upon the constitutionality of the acts of the Federal Government, still, lest their silence should be construed into disapprobation, or at best into a doubt of the constitutionality of the acts referred to by the state of Virginia; and, as the General Assembly of Virginia has called for an expression of their sentiments, do explicitly declare, that they consider the acts of Congress, commonly called “the alien and sedition-acts,” not only constitutional, but expedient and necessary: That the former act respects a description of persons whose rights were not particularly contemplated in the Constitution of the United States, who are entitled only to a temporary protection, while they yield a temporary allegiance: a protection, which ought to be withdrawn whenever they become “dangerous to the public safety,” or are found guilty of “treasonable machinations” against the government: That Congress having been especially entrusted by the people with the general defence of the nation, had not only the right but were bound to protect it against internal, as well as external foes.
That the United States, at the time of passing the act concerning aliens, were threatened with actual invasion, had been driven by the unjust and ambitious conduct of the French government into warlike preparations, expensive and burdensome, and had then, within the bosom of the country, thousands of aliens, who, we doubt not, were ready to co-operate in any external attack.
It cannot be seriously believed, that the United States should have waited till the poniard had in fact been plunged. The removal of aliens is the usual preliminary of hostility, and is justified by the invariable usages of nations. Actual hostility had unhappily long been experienced, and a formal declaration of it the government had reason daily to expect. The law, therefore, was just and salutary, and no officer could, with so much propriety be entrusted with the execution of it, as the one in whom the Constitution has reposed the executive power of the United States.
The sedition-act, so called, is, in the opinion of this Legislature, equally defensible. The General Assembly of Virginia, in their resolve under consideration, observe, that when that state, by its convention, ratified the Federal Constitution, it expressly declared, “That, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, with other states, recommended an amendment for that purpose; which amendment was, in due time, annexed to the Constitution; but they did not surely expect that the proceedings of their state convention were to explain the amendment adopted by the union. The words of that amendment, on this subject, are, “Congress shall make no law abridging the freedom of speech, or of the press.”
The act complained of is no abridgment of the freedom of either. The genuine liberty of speech and the press, is the liberty to utter and publish the truth; but the constitutional right of the citizen to utter and publish the truth, is not to be confounded with the licentiousness in speaking and writing, that is only employed in propagating falsehood and slander. This freedom of the press has been explicitly secured by most, if not all the state constitutions; and of this provision there has been generally but one construction among enlightened men; that it is a security for the rational use and not the abuse of the press; of which the courts of law, the juries and people will judge: this right is not infringed, but confirmed and established by the late act of Congress.
By the Constitution, the legislative, executive, and judicial departments of government are ordained and established; and general enumerated powers vested in them respectively, including those which are prohibited to the several states. Certain powers are granted in general terms by the people to their General Government, for the purposes of their safety and protection. That government is not only empowered, but it is made their duty, to repel invasions and suppress insurrections; to guarantee to the several states a republican form of government; to protect each state against invasion, and, when applied to, against domestic violence; to hear and decide all cases in law and equity, arising under the Constitution, and under any treaty or law made in pursuance thereof; and all cases of admiralty and maritime jurisdiction, and relating to the law of nations. Whenever, therefore, it becomes necessary to effect any of the objects designated, it is perfectly consonant to all just rules of construction to infer, that the usual means and powers necessary to the attainment of that object, are also granted: but the Constitution has left no occasion to resort to implication for these powers; it has made an express grant of them, in the eighth section of the first article, which ordains, “That Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.”
This Constitution has established a supreme court of the United States, but has made no provision for its protection, even against such improper conduct in its presence, as might disturb its proceedings, unless expressed in the section before recited. But as no statute has been passed on this subject, this protection is, and has been for nine years past, uniformly found in the application of the principles and usages of the common law. The same protection may unquestionably be afforded by a statute passed in virtue of the before-mentioned section, as necessary and proper, for carrying into execution the powers vested in that department. A construction of the different parts of the Constitution, perfectly just and fair, will, on analogous principles, extend protection and security against the offences in question, to the other departments of government, in discharge of their respective trusts.
The President of the United States is bound by his oath “to preserve, protect, and defend the Constitution,” and it is expressly made his duty “to take care that the laws be faithfully executed;” but this would be impracticable by any created being, if there could be no legal restraint of those scandalous misrepresentations of his measures and motives, which directly tend to rob him of the public confidence. And equally impotent would be every other public officer, if thus left to the mercy of the seditious.
It is holden to be a truth most clear, that the important trusts before enumerated, cannot be discharged by the government to which they are committed, without the power to restrain or punish seditious practices and unlawful combinations against itself, and to protect the officers thereof from abusive misrepresentations. Had the Constitution withheld this power, it would have made the government responsible for the effects, without any control over the causes which naturally produce them, and would have essentially failed of answering the great ends for which the people of the United States declare, in the first clause of that instrument, that they establish the same, viz: “To form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and posterity.”
Seditious practices and unlawful combinations against the federal government, or any officer thereof, in the performance of his duty, as well as licentiousness of speech and of the press, were punishable on the principles of common law in the courts of the United States, before the act in question was passed. This act, then, is an amelioration of that law in favour of the party accused, as it mitigates the punishment which that authorizes, and admits of any investigation of public men and measures which is regulated by truth. It is not intended to protect men in office, only as they are agents of the people. Its object is to afford legal security to public offices and trusts created for the safety and happiness of the people, and therefore the security derived from it is for the benefit of the people, and is their right.
This construction of the Constitution, and of the existing law of the land, as well as the act complained of, the legislature of Massachusetts most deliberately and firmly believe, results from a just and full view of the several parts of that Constitution; and they consider that act to be wise and necessary, as an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of perverting public opinion, and threatened to undermine and destroy the whole fabric of the government.
The legislature further declare, that in the foregoing sentiments they have expressed the general opinion of their constituents, who have not only acquiesced without complaint in those particular measures of the federal government, but have given their explicit approbation by re-electing those men who voted for the adoption of them: nor is it apprehended, that the citizens of this state will be accused of supineness, or of an indifference to their constitutional rights; for, while on the one hand, they regard with due vigilance, the conduct of the government: on the other, their freedom, safety, and happiness require, that they should defend that government and its constitutional measures against the open or insidious attacks of any foe, whether foreign or domestic.
And lastly, that the Legislature of Massachusetts feel a strong conviction, that the several United States are connected by a common interest, which ought to render their union indissoluble, and that this state will always co-operate with its confederate states, in rendering that union productive of mutual security, freedom and happiness.
Sent down for concurrence.
In the House of Representatives, Feb. 13, 1799. Read and concurred.
Whereas the people of the United States have established for themselves a free and independent national government. And whereas it is essential to the existence of every government, that it have authority to defend and preserve its constitutional powers inviolate, inasmuch as every infringement thereof tends to its subversion. And whereas the judicial power extends expressly to all cases of law and equity arising under the Constitution and the laws of the United States, whereby the interference of the legislatures of the particular states in those cases, is manifestly excluded. And whereas our peace, prosperity, and happiness eminently depend on the preservation of the Union, in order to which, a reasonable confidence in the constituted authorities and chosen representatives of the people is indispensable. And whereas every measure calculated to weaken that confidence, has a tendency to destroy the usefulness of our public functionaries, and to excite jealousies equally hostile to rational liberty and the principles of a good republican government. And whereas the Senate, not perceiving that the rights of the particular states have been violated, nor any unconstitutional powers assumed by the general government, cannot forbear to express the anxiety and regret with which they observe the inflammatory and pernicious sentiments and doctrines which are contained in the resolutions of the legislatures of Virginia and Kentucky; sentiments and doctrines no less repugnant to the Constitution of the United States, and the principles of their union, than destructive to the Federal Government, and unjust to those whom the people have elected to administer it: wherefore,
Resolved, That while the Senate feel themselves constrained to bear unequivocal testimony against such sentiments and doctrines, they deem it a duty no less indispen-sable, explicitly to declare their incompetency, as a branch of the legislature of this state, to supervise the acts of the general government.
Resolved, That his excellency the Governor be, and he is hereby requested to transmit a copy of the foregoing resolution to the executives of the states of Virginia and Kentucky, to the end that the same may be communicated to the legislatures thereof.
At a general assembly of the state of Connecticut, holden at Hartford, in the said state, on the second Thursday of May, Anno Domini, 1799, his excellency the Governor having communicated to this Assembly sundry resolutions of the legislature of Virginia, adopted in December 1798, which relate to the measures of the general government, and the said resolutions having been considered, it is
Resolved, That this Assembly views with deep regret, and explicitly disavows, the principles contained in the aforesaid resolutions; and particularly the opposition to the “alien and sedition-acts,” acts, which the Constitution authorized; which the exigency of the country rendered necessary; which the constituted authorities have enacted, and which merit the entire approbation of this Assembly. They therefore decidedly refuse to concur with the legislature of Virginia, in promoting any of the objects attempted in the aforesaid resolutions.
And it is further Resolved, that his excellency the Governor be requested to transmit a copy of the foregoing resolution to the Governor of Virginia, that it may be communicated to the legislature of that state.
Passed in the House of Representatives unanimously.
Concurred unanimously, in the upper House.
The committee to take into consideration the resolutions of the General Assembly of Virginia, dated December 21st, 1798; also certain resolutions of the Legislature of Kentucky, of the 10th November, 1798, report as follows:
The Legislature of New Hampshire having taken into consideration certain resolutions of the General Assembly of Virginia, dated December 21, 1798; also certain resolutions of the Legislature of Kentucky, of the 10th of November, 1798:
Resolved, That the Legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government, that the duty of such decision is properly and exclusively confided to the judicial department.
That if the Legislature of New Hampshire, for mere speculative purposes, were to express an opinion on the acts of the general government, commonly called “the alien and sedition-bills,” that opinion would unreservedly be, that those acts are constitutional, and in the present critical situation of our country, highly expedient.
That the constitutionality and expediency of the acts aforesaid, have been very ably advocated and clearly demonstrated by many citizens of the United States, more especially by the minority of the General Assembly of Virginia. The Legislature of New Hampshire, therefore, deem it unnecessary, by any train of arguments, to attempt further illustration of the propositions, the truth of which, it is confidently believed, at this day, is very generally seen and acknowledged.
Which report being read and considered, was unanimously received and accepted, one hundred and thirty-seven members being present.
Sent up for concurrence.
In Senate, the same day, read and concurred unanimously.
Approved, June 15th, 1799.
The House proceeded to take under their consideration, the resolutions of the General Assembly of Virginia, relative to certain measures of the general government, transmitted to the Legislature of this state, for their consider-ation: Whereupon,
Resolved, That the General Assembly of the state of Vermont do highly disapprove of the resolutions of the General Assembly of Virginia, as being unconstitutional in their nature, and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union: That his excellency the Governor be requested to transmit a copy of this resolution to the executive of Virginia, to be communicated to the General Assembly of that state: And that the same be sent to the Governor and Council for their concurrence.
In Council, October 30, 1799.
Read and concurred unanimously.
Whatever room might be found in the proceedings of some of the states who have disapproved of the resolutions of the General Assembly of this commonwealth, passed on the 21st day of December, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the committee most consistent with the duty, as well as dignity of the General Assembly, to hasten an oblivion of every circumstance which might be construed into a diminution of mutual respect, confidence, and affection, among the members of the Union.
The committee have deemed it a more useful task, to revise, with a critical eye, the resolutions which have met with this disapprobation; to examine fully the several objections and arguments which have appeared against them; and to inquire whether there be any errors of fact, of principle, or of reasoning, which the candour of the General Assembly ought to acknowledge and correct.
The first of the resolutions is in the words following:
Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
No unfavourable comment can have been made on the sentiments here expressed. To maintain and defend the Constitution of the United States, and of their own state, against every aggression, both foreign and domestic, and to support the government of the United States in all measures warranted by their Constitution, are duties which the General Assembly ought always to feel, and to which, on such an occasion, it was evidently proper to express its sincere and firm adherence.
In their next resolution—The General Assembly most solemnly declares a warm attachment to the union of the states, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that union, because a faithful observance of them can alone secure its existence and the public happiness.
The observation just made is equally applicable to this solemn declaration, of warm attachment to the union, and this solemn pledge to maintain it; nor can any question arise among enlightened friends of the union, as to the duty of watching over and opposing every infraction of those principles which constitute its basis, and a faithful observance of which can alone secure its existence, and the public happiness thereon depending.
The third resolution is in the words following:
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.
On this resolution, the committee have bestowed all the attention which its importance merits; they have scanned it not merely with a strict, but with a severe eye; and they feel confidence in pronouncing, that, in its just and fair construction, it is unexceptionably true in its several positions, as well as constitutional and conclusive in its inferences.
The resolution declares, first, that “it views the powers of the Federal Government, as resulting from the compact to which the states are parties;” in other words, that the Federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties.
Clear as the position must seem, that the federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine, which opens another source of federal powers, not less extensive and important, than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking, that in all the cotemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended, on the ground, that the powers not given to the government, were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, “that the powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution or compact,” is, in the judgment of the committee, equally free from objection. It is indeed true, that the term “states,” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and, lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “states,” in the resolution, may have been entertained, all will at least concur in that last mentioned; because, in that sense, the Constitution was submitted to the “states:” in that sense the “states” ratified it: and, in that sense of the term “states,” they are consequently parties to the compact, from which the powers of the federal government result.
The next position is, that the General Assembly views the powers of the federal government, “as limited by the plain sense and intention of the instrument constitut-ing that compact,” and “as no farther valid than they are authorized by the grants therein enumerated.” It does not seem possible, that any just objection can lie against either of these clauses. The first amounts merely to a declaration, that the compact ought to have the interpretation plainly intended by the parties to it; the other to a declaration, that it ought to have the execution and effect intended by them. If the powers granted, be valid, it is solely because they are granted: and, if the granted powers are valid, because granted, all other powers not granted, must not be valid.
The resolution, having taken this view of the federal compact, proceeds to infer, “that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.”
It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.
It does not follow, however, that because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for by occasions only, deeply and essentially affecting the vital principles of their political system.
The resolution has accordingly guarded against any misapprehension of its object, by expressly requiring for such an interposition, “the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it. It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration, or hasty determination; but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require that the question should be discussed, how far the exercise of any particular power, ungranted by the Constitution, would justify the interposition of the parties to it. As cases might easily be stated, which none would contend ought to fall within that description; cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal, as to unite every opinion in placing them within that description.
But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates, to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties appertaining to the states, as parties to the Constitution.
From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognised under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.
But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.
On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
The truth declared in the resolution being established, the expediency of making the declaration at the present day, may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles, is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles, ought to be viewed as unseasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.
The fourth resolution stands as follows:
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases, (which, having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to be misconstrued,) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States into an absolute, or, at best, a mixed monarchy.
The first question here to be considered is, whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter.
The General Assembly having declared its opinion merely by regretting in general terms that forced constructions for enlarging the federal powers have taken place, it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The alien and sedition-acts being particularly named in a succeeding resolution, are of course to be understood as included in the allusion. Omitting others which have less occupied public attention, or been less extensively regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law, which from the circumstances of its passage, as well as the latitude of construction on which it is founded, strikes the attention with singular force; and the carriage tax, distinguished also by circumstances in its history having a similar tendency. Those instances, alone, if resulting from forced construction and calculated to enlarge the powers of the Federal Government, as the committee cannot but conceive to be the case, sufficiently warrant this part of the resolution. The committee have not thought it incumbent on them to extend their attention to laws which have been objected to, rather as varying the constitutional distribution of powers in the Federal Government, than as an absolute enlargement of them; because instances of this sort, however important in their principles and tendencies, do not appear to fall strictly within the text under review.
The other questions presenting themselves, are—1. Whether indications have appeared of a design to expound certain general phrases copied from the “articles of confederation” so as to destroy the effect of the particular enumeration explaining and limiting their meaning. 2. Whether this exposition would by degrees consolidate the states into one sovereignty. 3. Whether the tendency and result of this consolidation would be to transform the republican system of the United States into a monarchy.
I. The general phrases here meant must be those “of providing for the common defence and general welfare.”
In the “articles of confederation,” the phrases are used as follows, in Art. VIII. “All charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in pro-portion to the value of all land within each state, granted to, or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled shall from time to time direct and appoint.”
In the existing Constitution, they make the following part of Sec. 8, “The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and to provide for the common defence and general welfare of the United States.”
This similarity in the use of these phrases in the two great federal charters, might well be considered, as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said, that in the former they were ever understood to be either a general grant of power, or to authorize the requisition or application of money by the old Congress to the common defence and general welfare, except in the cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present Constitution, it can never be supposed that when copied into this Constitution, a different meaning ought to be attached to them.
That, notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the Constitution, so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the federal legislature, in which arguments have on different occasions been drawn, with apparent effect, from these phrases, in their indefinite meaning.
To these indications might be added, without looking farther, the official report on manufactures, by the late Secretary of the Treasury, made on the 5th of December, 1791; and the report of a committee of Congress, in January, 1797, on the promotion of agriculture. In the first of these it is expressly contended to belong “to the discretion of the national legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt, that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, as far as regards the application of money. The latter report assumes the same latitude of power in the national councils, and applies it to the encouragement of agriculture by means of a society to be established at the seat of government. Although neither of these reports may have received the sanction of a law carrying it into effect, yet, on the other hand, the extraordinary doctrine contained in both, has passed without the slightest positive mark of disapprobation from the authority to which it was addressed.
Now, whether the phrases in question be construed to authorize every measure relating to the common defence and general welfare, as contended by some; or every measure only in which there might be an application of money, as suggested by the caution of others; the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever, which may not have some reference to the common defence, or the general welfare; nor a power of any magnitude, which, in its exercise, does not involve or admit an application of money. The government, therefore, which possesses power in either one or other of these extents, is a government without the limitations formed by a particular enumeration of powers; and consequently, the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases.
This conclusion will not be affected by an attempt to qualify the power over the “general welfare,” by referring it to cases where the general welfare is beyond the reach of separate provisions by the individual states; and leaving to these their jurisdictions, in cases to which their separate provisions may be competent. For, as the authority of the individual states must in all cases be incompetent to general regulations operating through the whole, the authority of the United States would be extended to every object relating to the general welfare, which might, by any possibility, be provided for by the general authority. This qualifying construction, therefore, would have little, if any tendency, to circumscribe the power claimed under the latitude of the terms “general welfare.”
The true and fair construction of this expression, both in the original and existing federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorized to provide money for the common defence and general welfare. In both, is subjoined to this authority, an enumeration of the cases to which their powers shall extend. Money cannot be applied to the general welfare otherwise than by an application of it to some particular measures, conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by the clause in the Constitution, which declares, that “no money shall be drawn from the treasury, but in consequence of appropriations by law.” An appropriation of money to the general welfare would be deemed rather a mockery than an observance of this constitutional injunction.
2. Whether the exposition of the general phrases here combated would not, by degrees, consolidate the states into one sovereignty, is a question concerning which the committee can perceive little room for difference of opinion. To consolidate the states into one sovereignty, nothing more can be wanted, than to supersede their respective sovereignties in the cases reserved to them, by extending the sovereignty of the United States, to all cases of the “general welfare,” that is to say, to all cases whatever.
3. That the obvious tendency and inevitable result of a consolidation of the states into one sovereignty, would be to transform the republican system of the United States into a monarchy, is a point which seems to have been sufficiently decided by the general sentiment of America. In almost every instance of discussion, relating to the consolidation in question, its certain tendency to pave the way to monarchy seems not to have been contested. The prospect of such a consolidation has formed the only topic of controversy. It would be unnecessary, therefore, for the committee to dwell long on the reasons which support the position of the General Assembly. It may not be improper, however, to remark two consequences evidently flowing from an extension of the federal powers to every subject falling within the idea of the “general welfare.”
One consequence must be, to enlarge the sphere of discretion allotted to the executive magistrate. Even within the legislative limits properly defined by the Constitution, the difficulty of accommodating legal regulations to a country so great in extent, and so various in its circumstances, has been much felt; and has led to occasional investments of power in the executive, which involve perhaps as large a portion of discretion as can be deemed consistent with the nature of the executive trust. In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature, so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of executive prerogative materially consists.
The other consequence would be that of an excessive augmentation of the offices, honours, and emoluments depending on the executive will. Add to the present legitimate stock, all those of every description which a consolidation of the states would take from them, and turn over to the Federal Government, and the patronage of the executive would necessarily be as much swelled in this case, as its prerogative would be in the other.
This disproportionate increase of prerogative and patronage must, evidently, either enable the chief magistrate of the Union, by quiet means, to secure his re-election from time to time, and finally, to regulate the succession as he might please; or, by giving so transcendent an importance to the office, would render the elections to it so violent and corrupt, that the public voice itself might call for an hereditary, in place of an elective succession. Whichever of these events might follow, the transformation of the republican system of the United States into a monarchy, anticipated by the General Assembly from a consolidation of the states into one sovereignty, would be equally accomplished; and whether it would be into a mixed or an absolute monarchy, might depend on too many contingencies to admit of any certain foresight.
The resolution next in order, is contained in the following terms:
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “alien and sedition-acts,” passed at the last session of Congress; the first of which exercises a power nowhere delegated to the Federal Government; and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of a free Government, as well as the particular organization and positive provisions of the Federal Constitution; and the other of which acts exercises, in like manner, a power not delegated by the Constitution; but, on the contrary, expressly and positively forbidden by one of the amendments thereto: a power which, more than any other, ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.
The subject of this resolution having, it is presumed, more particularly led the General Assembly into the proceedings which they communicated to the other states, and being in itself of peculiar importance, it deserves the most critical and faithful investigation; for the length of which no other apology will be necessary.
The subject divides itself into first, “The alien-act,” secondly, “The sedition-act.”
I. Of the “alien-act,” it is affirmed by the resolution, 1st. That it exercises a power nowhere delegated to the Federal Government. 2d. That it unites legislative and judicial powers to those of the executive. 3d. That this union of power subverts the general principles of free government. 4th. That it subverts the particular organization and positive provisions of the Federal Constitution.
In order to clear the way for a correct view of the first position, several observations will be premised.
In the first place, it is to be borne in mind, that it being a characteristic feature of the Federal Constitution, as it was originally ratified, and an amendment thereto having precisely declared, “That the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,” it is incumbent in this, as in every other exercise of power by the Federal Government, to prove from the Constitution, that it grants the particular power exercised.
The next observation to be made is, that much confusion and fallacy have been thrown into question, by blending the two cases of “aliens, members of a hostile nation; and aliens, members of friendly nations.” These two cases are so obviously and so essentially distinct, that it occasions no little surprise that the distinction should have been disregarded: and the surprise is so much the greater, as it appears that the two cases are actually distinguished by two separate acts of Congress, passed at the same session, and comprised in the same publication; the one providing for the case of “alien enemies;” the other “concerning aliens” indiscriminately; and consequently extending to aliens of every nation in peace and amity with the United States. With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress is denied to be constitutional; and it is accordingly against this act, that the protest of the General Assembly is expressly and exclusively directed.
A third observation is, that were it admitted, as is contended, that the “act concerning aliens” has for its object not a penal, but a preventive justice, it would still remain to be proved that it comes within the constitutional power of the federal legislature; and if within its power, that the legislature has exercised it in a constitutional manner.
In the administration of preventive justice, the following principles have been held sacred: that some probable ground of suspicion be exhibited before some judicial authority; that it be supported by oath or affirmation; that the party may avoid being thrown into confinement, by finding pledges or sureties for his legal conduct sufficient in the judgment of some judicial authority; that he may have the benefit of a writ of habeas corpus, and thus obtain his release, if wrongfully confined; and that he may at any time be discharged from his recognizance, or his confinement, and restored to his former liberty and rights, on the order of the proper judicial authority, if it shall see sufficient cause.
All these principles of the only preventive justice known to American jurisprudence are violated by the alien-act. The ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate alone; no oath or affirmation is required; if the suspicion be held reasonable by the President, he may order the suspected alien to depart the territory of the United States, without the opportunity of avoiding the sentence, by finding pledges for his future good conduct; as the President may limit the time of departure as he pleases, the benefit of the writ of habeas corpus may be suspended with respect to the party, although the Constitution ordains, that it shall not be suspended, unless when the public safety may require it in case of rebellion or invasion, neither of which existed at the passage of the act; and the party being under the sentence of the President, either removed from the United States, or being punished by imprisonment, or disqualification ever to become a citizen on conviction of not obeying the order of removal, he cannot be discharged from the proceedings against him, and restored to the benefits of his former situation, although the highest judicial authority should see the most sufficient cause for it.
But, in the last place, it can never be admitted, that the removal of aliens, authorized by the act, is to be considered, not as punishment for an offence, but as a measure of precaution and prevention. If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country where he may have formed the most tender of connexions, where he may have vested his entire property, and acquired property of the real and permanent, as well as the movable and temporary kind; where he enjoys under the laws a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for, and where he may have nearly completed his probationary title to citizenship; if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war, and of unusual licentiousness on that element, and possibly to vindictive purposes which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied. And if it be a punishment, it will remain to be inquired, whether it can be constitutionally inflicted, on mere suspicion, by the single will of the executive magistrate, on persons convicted of no personal offence against the laws of the land, nor involved in any offence against the law of nations, charged on the foreign state of which they are members.
One argument offered in justification of this power exercised over aliens is, that the admission of them into the country being of favour, not of right, the favour is at all times revocable.
To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required. A question would still occur, whether the Constitution had vested the discretionary power of admitting aliens in the federal government, or in the state governments.
But it cannot be a true inference, that because the admission of an alien is a favour, the favour may be revoked at pleasure. A grant of land to an individual may be of favour, not of right; but the moment the grant is made, the favour becomes a right, and must be forfeited before it can be taken away. To pardon a malefactor may be favour, but the pardon is not, on that account, the less irrevocable. To admit an alien to naturalization is as much a favour, as to admit him to reside in the country; yet it cannot be pretended, that a person naturalized can be deprived of the benefit, any more than a native citizen can be disfranchised.
Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.
To this reasoning, also, it might be answered, that although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens, without regard to that particular consideration.
But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.
If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.
It is said, further, that by the law and practice of nations, aliens may be removed at discretion, for offences against the law of nations; that Congress are authorized to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences.
The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.
This argument also, by referring the alien-act to the power of Congress to define and punish offences against the law of nations, yields the point that the act is of a penal, not merely of a preventive operation. It must, in truth, be so considered. And if it be a penal act, the punishment it inflicts, must be justified by some offence that deserves it.
Offences for which aliens, within the jurisdiction of a country, are punishable, are first, offences committed by the nation of which they make a part, and in whose offences they are involved: Secondly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of alien enemies; the second, the case of alien friends. In the first case, the offending nation can no otherwise be punished than by war, one of the laws of which authorizes the expulsion of such of its members, as may be found within the country, against which the offence has been committed. In the second case, the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations, the individual only, and not the nation, is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations. Under this view of the subject, the act of Congress, for the removal of alien enemies, being conformable to the law of nations, is justified by the Constitution: and the “act,” for the removal of alien friends, being repugnant to the constitutional principles of municipal law, is unjustifiable.
Nor is the act of Congress, for the removal of alien friends, more agreeable to the general practice of nations, than it is within the purview of the law of nations. The general practice of nations, distinguishes between alien friends and alien enemies. The latter it has proceeded against, according to the law of nations, by expelling them as enemies. The former it has considered as under a local and temporary allegiance, and entitled to a correspondent protection. If contrary instances are to be found in barbarous countries, under undefined prerogatives, or amid revolutionary dangers, they will not be deemed fit precedents for the government of the United States, even if not beyond its constitutional authority.
It is said, that Congress may grant letters of marque and reprisal; that reprisals may be made on persons, as well as property; and that the removal of aliens may be considered as the exercise in an inferior degree, of the general power of reprisal on persons.
Without entering minutely into a question that does not seem to require it, it may be remarked, that reprisal is a seizure of foreign persons or property, with a view to obtain that justice for injuries done by one state or its members, to another state or its members, for which, a refusal of the aggressor requires such a resort to force under the law of nations. It must be considered as an abuse of words to call the removal of persons from a country, a seizure or reprisal on them: nor is the distinction to be overlooked between reprisals on persons within the country and under the faith of its laws, and on persons out of the country.
But, laying aside these considerations, it is evidently impossible to bring the alien-act within the power of granting reprisals; since it does not allege or imply any injury received from any particular nation, for which this proceeding against its members was intended as a reparation. The proceeding is authorized against aliens of every nation; of nations charged neither with any similar proceeding against American citizens, nor with any injuries for which justice might be sought, in the mode prescribed by the act. Were it true, therefore, that good causes existed for reprisals against one or more foreign nations, and that neither persons nor property of its members, under the faith of our laws, could plead an exemption, the operation of the act ought to have been limited to the aliens among us, belonging to such nations. To license reprisals against all nations, for aggressions charged on one only, would be a measure as contrary to every principle of justice and public law, as to a wise policy, and the universal practice of nations.
It is said, that the right of removing aliens is an incident to the power of war, vested in Congress by the Constitution.
This is a former argument in a new shape only; and is answered by repeating, that the removal of alien enemies is an incident to the power of war; that the removal of alien friends, is not an incident to the power of war.
It is said, that Congress are by the Constitution to protect each state against invasion; and that the means of preventing invasion are included in the power of protection against it.
The power of war in general, having been before granted by the Constitution, this clause must either be a mere specification for greater caution and certainty, of which there are other examples in the instrument, or be the injunction of a duty, superadded to a grant of the power. Under either explanation, it cannot enlarge the powers of Congress on the subject. The power and the duty to protect each state against an invading enemy, would be the same under the general power, if this regard to greater caution had been omitted.
Invasion is an operation of war. To protect against invasion is an exercise of the power of war. A power, therefore, not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends, has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.
Nor can it ever be granted, that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing every practicable definition of particular and limited powers. Under the idea of preventing war in general, as well as invasion in particular, not only an indiscriminate removal of all aliens might be enforced, but a thousand other things still more remote from the operations and precautions appurtenant to war, might take place. A bigoted or tyrannical nation might threaten us with war, unless certain religious or political regulations were adopted by us; yet it never could be inferred, if the regulations which would prevent war, were such as Congress had otherwise no power to make, that the power to make them would grow out of the purpose they were to answer. Congress have power to suppress insurrections, yet it would not be allowed to follow, that they might employ all the means tending to prevent them; of which a system of moral instruction for the ignorant, and of provident support for the poor, might be regarded as among the most efficacious.
One argument for the power of the general government to remove aliens, would have been passed in silence, if it had appeared under any authority inferior to that of a report, made during the last session of Congress, to the House of Representatives by a committee, and approved by the House. The doctrine on which this argument is founded, is of so new and so extraordinary a character, and strikes so radically at the political system of America, that it is proper to state it in the very words of the report.
“The act [concerning aliens] is said to be unconstitutional, because to remove aliens is a direct breach of the Constitution, which provides, by the 9th section of the 1st article, that the migration or importation of such persons as any of the states shall think proper to admit, shall not be prohibited by the Congress, prior to the year 1808.”
Among the answers given to this objection to the constitutionality of the act, the following very remarkable one is extracted:
“Thirdly, that as the Constitution has given to the states no power to remove aliens, during the period of the limitation under consideration, in the mean time, on the construction assumed, there would be no authority in the country, empowered to send away dangerous aliens, which cannot be admitted.”
The reasoning here used, would not in any view, be conclusive; because there are powers exercised by most other governments, which in the United States are withheld by the people, both from the general government, and from the state governments. Of this sort are many of the powers prohibited by the declarations of right prefixed to the constitutions, or by the clauses in the constitutions, in the nature of such declarations. Nay, so far is the political system of the United States distinguishable from that of other countries, by the caution with which powers are delegated and defined, that in one very important case, even of commercial regulations and revenue, the power is absolutely locked up against the hands of both governments. A tax on exports can be laid by no constitutional authority whatever. Under a system thus peculiarly guarded, there could surely be no absurdity in supposing, that alien friends, who if guilty of treasonable machinations may be punished, or if suspected on probable grounds, may be secured by pledges or imprisonment, in like manner with permanent citizens, were never meant to be subjected to banishment by any arbitrary and unusual process, either under the one government or the other.
But, it is not the inconclusiveness of the general reasoning in this passage, which chiefly calls the attention to it. It is the principle assumed by it, that the powers held by the states, are given to them by the Constitution of the United States; and the inference from this principle, that the powers supposed to be necessary which are not so given to state governments, must reside in the government of the United States.
The respect, which is felt for every portion of the constituted authorities, forbids some of the reflections which this singular paragraph might excite; and they are the more readily suppressed, as it may be presumed, with justice perhaps, as well as candour, that inadvertence may have had its share in the error. It would be an unjustifiable delicacy, nevertheless, to pass by so portentous a claim, proceeding from so high an authority, without a monitory notice of the fatal tendencies with which it would be pregnant.
Lastly, it is said, that a law on the same subject with the alien-act, passed by this state originally in 1785, and re-enacted in 1792, is a proof that a summary removal of suspected aliens, was not heretofore regarded by the Virginia Legislature, as liable to the objections now urged against such a measure.
This charge against Virginia vanishes before the simple remark, that the law of Virginia relates to “suspicious persons being the subjects of any foreign power or state, who shall have made a declaration of war, or actually commenced hostilities, or from whom the President shall apprehend hostile designs;” whereas the act of Congress relates to aliens, being the subjects of foreign powers and states, who have neither declared war, nor commenced hostilities, nor from whom hostile designs are apprehended.
2. It is next affirmed of the alien act, that it unites legislative, judicial, and executive powers in the hands of the President.
However difficult it may be to mark, in every case, with clearness and certainty, the line which divides legislative power, from the other departments of power, all will agree, that the powers referred to these departments may be so general and undefined, as to be of a legislative, not of an executive or judicial nature; and may for that reason be unconstitutional. Details to a certain degree, are essential to the nature and character of a law; and on criminal subjects, it is proper, that details should leave as little as possible to the discretion of those who are to apply and to execute the law. If nothing more were required, in exercising a legislative trust, than a general conveyance of authority, without laying down any precise rules, by which the authority conveyed should be carried into effect; it would follow, that the whole power of legislation might be transferred by the legislature from itself, and proclamations might become substitutes for laws. A delegation of power in this latitude, would not be denied to be a union of the different powers.
To determine, then, whether the appropriate powers of the distinct departments are united by the act authorizing the executive to remove aliens, it must be inquired whether it contains such details, definitions and rules, as appertain to the true character of a law; especially, a law by which personal liberty is invaded, property deprived of its value to the owner, and life itself indirectly exposed to danger.
The alien-act declares, “that it shall be lawful for the President to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable ground to suspect, are concerned in any treasonable, or secret machinations, against the government thereof, to depart,” &c.
Could a power be well given in terms less definite, less particular, and less precise? To be dangerous to the public safety; to be suspected of secret machinations against the government: these can never be mistaken for legal rules or certain definitions. They leave everything to the President. His will is the law.
But, it is not a legislative power only, that is given to the President. He is to stand in the place of the judiciary also. His suspicion is the only evidence which is to convict: his order, the only judgment which is to be executed.
Thus, it is the President whose will is to designate the offensive conduct; it is his will that is to ascertain the individuals on whom it is charged; and it is his will, that is to cause the sentence to be executed. It is rightly affirmed, therefore, that the act unites legislative and judicial powers to those of the executive.
3. It is affirmed, that this union of power subverts the general principles of free government.
It has become an axiom in the science of government, that a separation of the legislative, executive, and judicial departments, is necessary to the preservation of public liberty. Nowhere has this axiom been better understood in theory, or more carefully pursued in practice, than in the United States.
4. It is affirmed that such a union of powers subverts the particular organization and positive provisions of the Federal Constitution.
According to the particular organization of the Constitution, its legislative powers are vested in the Congress, its executive powers in the President, and its judicial powers in a supreme and inferior tribunals. The union of any two of these powers, and still more of all three, in any one of these departments, as has been shown to be done by the alien-act, must consequently subvert the constitutional organization of them.
That positive provisions, in the Constitution, securing to individuals the benefits of fair trial, are also violated by the union of powers in the alien-act, necessarily results from the two facts, that the act relates to alien friends, and that alien friends being under the municipal law only, are entitled to its protection.
II. The second object against which the resolution protests, is the sedition-act.
Of this act it is affirmed, 1. That it exercises in like manner a power not delegated by the Constitution. 2. That the power, on the contrary, is expressly and positively forbidden by one of the amendments to the Constitution. 3. That this is a power, which more than any other ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication thereon, which has ever been justly deemed the only effectual guardian of every other right.
1. That it exercises a power not delegated by the Constitution.
Here again, it will be proper to recollect, that the Federal Government being composed of powers specifically granted, with a reservation of all others to the states or to the people, the positive authority under which the sedition-act could be passed must be produced by those who assert its constitutionality. In what part of the Constitution, then, is this authority to be found?
Several attempts have been made to answer this question, which will be examined in their order. The committee will begin with one, which has filled them with equal astonishment and apprehension; and which, they cannot but persuade themselves, must have the same effect on all, who will consider it with coolness and impartiality, and with a reverence for our Constitution, in the true character in which it issued from the sovereign authority of the people. The committee refer to the doctrine lately advanced as a sanction to the sedition-act, “that the common or unwritten law,” a law of vast extent and complexity, and embracing almost every possible subject of legislation, both civil and criminal, makes a part of the law of these states, in their united and national capacity.
The novelty and, in the judgment of the committee, the extravagance of this pretension, would have consigned it to the silence in which they have passed by other arguments, which an extraordinary zeal for the act has drawn into the discussion: But the auspices under which this innovation presents itself, have constrained the committee to bestow on it an attention, which other considerations might have forbidden.
In executing the task, it may be of use to look back to the colonial state of this country, prior to the Revolution; to trace the effects of the Revolution which converted the colonies into independent states; to inquire into the import of the articles of confederation, the first instrument by which the union of the states was regularly established; and finally, to consult the Constitution of 1788, which is the oracle that must decide the important question.
In the state, prior to the Revolution, it is certain that the common law, under different limitations, made a part of the colonial codes. But whether it be understood that the original colonists brought the law with them, or made it their law by adoption; it is equally certain, that it was the separate law of each colony within its respective limits, and was unknown to them, as a law pervading and operating through the whole, as one society.
It could not possibly be otherwise. The common law was not the same in any two of the colonies; in some, the modifications were materially and extensively different. There was no common legislature, by which a common will could be expressed in the form of a law; nor any common magistracy, by which such a law could be carried into practice. The will of each colony, alone and separately, had its organs for these purposes.
This stage of our political history furnishes no foothold for the patrons of this new doctrine.
Did then the principle or operation of the great event which made the colonies independent states, imply or introduce the common law as a law of the Union?
The fundamental principle of the Revolution was, that the colonies were co-ordinate members with each other, and with Great Britain, of an empire, united by a common executive sovereign, but not united by any common legislative sovereign. The legislative power was maintained to be as complete in each American parliament, as in the British parliament. And the royal prerogative was in force in each colony, by virtue of its acknowledging the king for its executive magistrate, as it was in Great Britain, by virtue of a like acknowledgment there. A denial of these principles by Great Britain, and the assertion of them by America, produced the Revolution.
There was a time, indeed, when an exception to the legislative separation of the several component and coequal parts of the empire obtained a degree of acquiescence. The British parliament was allowed to regulate the trade with foreign nations, and between the different parts of the empire. This was, however, mere practice without right, and contrary to the true theory of the Constitution. The conveniency of some regulations, in both those cases, was apparent; and as there was no legislature with power over the whole, nor any constitutional pre-eminence among the legislatures of the several parts, it was natural for the legislature of that particular part which was the eldest and the largest, to assume this function, and for the others to acquiesce in it. This tacit arrangement was the less criticised, as the regulations established by the British parliament operated in favour of that part of the empire which seemed to bear the principal share of the public burdens, and were regarded as an indemnification of its advances for the other parts. As long as this regulating power was confined to the two objects of conveniency and equity, it was not complained of, nor much inquired into. But, no sooner was it perverted to the selfish views of the party assuming it, than the injured parties began to feel and to reflect; and the moment the claim to a direct and indefinite power was ingrafted on the precedent of the regulating power, the whole charm was dissolved, and every eye opened to the usurpation. The assertion by Great Britain of a power to make laws for the other members of the empire in all cases whatsoever, ended in the discovery that she had a right to make laws for them in no cases whatsoever.
Such being the ground of our Revolution, no support nor colour can be drawn from it, for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the Revolution.
The articles of confederation are the next source of information on this subject.
In the interval between the commencement of the Revolution and the final ratification of these articles, the nature and extent of the Union was determined by the circumstances of the crisis, rather than by any accurate delineation of the general authority. It will not be alleged, that the “common law” could have had any legitimate birth as a law of the United States during that state of things. If it came, as such, into existence at all, the charter of confederation must have been its parent.
Here again, however, its pretensions are absolutely destitute of foundation. This instrument does not contain a sentence or syllable that can be tortured into a countenance of the idea, that the parties to it were, with respect to the objects of the common law, to form one community. No such law is named or implied, or alluded to as being in force, or as brought into force by that compact. No provision is made by which such a law could be carried into operation; whilst, on the other hand, every such inference or pretext is absolutely precluded by Article 2d, which declares, “that each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
Thus far it appears that not a vestige of this extraordinary doctrine can be found in the origin or progress of American institutions. The evidence against it has, on the contrary, grown stronger at every step, till it has amounted to a formal and positive exclusion, by written articles of compact among the parties concerned.
Is this exclusion revoked, and the common law introduced as a national law, by the present Constitution of the United States? This is the final question to be examined.
It is readily admitted, that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far also, as such other parts may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated. But, the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations.
The only part of the Constitution which seems to have been relied on in this case is the 2d Sect. of Art. III. “The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority.”
It has been asked what cases, distinct from those arising under the laws and treaties of the United States, can arise under the Constitution, other than those arising under the common law; and it is inferred, that the common law is accordingly adopted or recognised by the Constitution.
Never, perhaps, was so broad a construction applied to a text so clearly unsusceptible of it. If any colour for the inference could be found, it must be in the impossibility of finding any other cases in law and equity, within the provision of the Constitution, to satisfy the expression; and rather than resort to a construction affecting so essentially the whole character of the government, it would perhaps be more rational to consider the expression as a mere pleonasm, or inadvertence. But, it is not necessary to decide on such a dilemma. The expression is fully satisfied, and its accuracy justified, by two descriptions of cases, to which the judicial authority is extended, and neither of which implies that the common law is the law of the United States. One of these descriptions comprehends the cases growing out of the restrictions on the legislative power of the states. For example, it is provided that “no state shall emit bills of credit,” or “make anything but gold and silver coin a tender in payment of debts.” Should this prohibition be violated, and a suit between citizens of the same state be the consequence, this would be a case arising under the Constitution, before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the Constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States.
To this explanation of the text, the following observations may be added:
The expression, “cases in law and equity,” is manifestly confined to cases of a civil nature; and would exclude cases of criminal jurisdiction. Criminal cases in law and equity would be a language unknown to the law.
The succeeding paragraph of the same section is in harmony with this construction. It is in these words: “In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases [including cases in law and equity arising under the Constitution] the Supreme Court shall have appellate jurisdiction both as to law and fact; with such exceptions, and under such regulations, as Congress shall make.”
This paragraph, by expressly giving an appellate jurisdiction, in cases of law and equity arising under the Constitution, to fact, as well as to law, clearly excludes criminal cases, where the trial by jury is secured; because the fact, in such cases, is not a subject of appeal. And, although the appeal is liable to such exceptions and regulations as Congress may adopt, yet it is not to be supposed that an exception of all criminal cases could be contemplated; as well because a discretion in Congress to make or omit the exception would be improper, as because it would have been unnecessary. The exception could as easily have been made by the Constitution itself, as referred to the Congress.
Once more; the amendment last added to the Constitution, deserves attention, as throwing light on this subject. “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign power.” As it will not be pretended that any criminal proceeding could take place against a state, the terms law or equity, must be understood as appropriate to civil, in exclusion of criminal cases.
From these considerations, it is evident, that this part of the Constitution, even if it could be applied at all to the purpose for which it has been cited, would not include any cases whatever of a criminal nature; and consequently, would not authorize the inference from it, that the judicial authority extends to offences against the common law, as offences arising under the Constitution.
It is further to be considered, that even if this part of the Constitution could be strained into an application to every common law case, criminal as well as civil, it could have no effect in justifying the sedition-act, which is an exercise of legislative, and not of judicial power: and it is the judicial power only, of which the extent is defined in this part of the Constitution.
There are two passages in the Constitution, in which a description of the law of the United States is found. The first is contained in Art. III. sect. 2, in the words following: “This Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.” The second is contained in the second paragraph of Art. VI. as follows: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” The first of these descriptions was meant as a guide to the judges of the United States; the second, as a guide to the judges in the several states. Both of them consist of an enumeration, which was evidently meant to be precise and complete. If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration.
In aid of these objections, the difficulties and confusion inseparable from a constructive introduction of the common law, would afford powerful reasons against it.
Is it to be the common law with or without the British statutes?
If without the statutory amendments, the vices of the code would be insupportable.
If with these amendments, what period is to be fixed for limiting the British authority over our laws?
Is it to be the date of the eldest or the youngest of the colonies?
Or are the dates to be thrown together, and a medium deduced?
Or is our independence to be taken for the date?
Is, again, regard to be had to the various changes in the common law made by the local codes of America?
Is regard to be had to such changes, subsequent, as well as prior, to the establishment of the Constitution?
Is regard to be had to future, as well as past changes?
Is the law to be different in every state, as differently modified by its code; or are the modifications of any particular state to be applied to all?
And on the latter supposition, which among the state codes would form the standard?
Questions of this sort might be multiplied with as much ease, as there would be difficulty in answering them.
The consequences flowing from the proposed construction, furnish other objections equally conclusive; unless the text were peremptory in its meaning, and consistent with other parts of the instrument.
These consequences may be in relation to the legislative authority of the United States; to the executive authority; to the judicial authority; and to the governments of the several states.
If it be understood, that the common law is established by the Constitution, it follows that no part of the law can be altered by the legislature; such of the statutes already passed, as may be repugnant thereto would be nullified; particularly the “sedition-act” itself, which boasts of being a melioration of the common law; and the whole code, with all its incongruities, barbarisms, and bloody maxims, would be inviolably saddled on the good people of the United States.
Should this consequence be rejected, and the common law be held, like other laws, liable to revision and alteration, by the authority of Congress, it then follows, that the authority of Congress is co-extensive with the objects of common law; that is to say, with every object of legislation: for to every such object does some branch or other of the common law extend. The authority of Congress would, therefore, be no longer under the limitations marked out in the Constitution. They would be authorized to legislate in all cases whatsoever.
In the next place, as the President possesses the executive powers of the Constitution, and is to see that the laws be faithfully executed, his authority also must be coextensive with every branch of the common law. The additions which this would make to his power, though not readily to be estimated, claim the most serious attention.
This is not all; it will merit the most profound consideration, how far an indefinite admission of the common law, with a latitude in construing it, equal to the construction by which it is deduced from the Constitution, might draw after it the various prerogatives making part of the unwritten law of England. The English constitution itself is nothing more than a composition of unwritten laws and maxims.
In the third place, whether the common law be admitted as of legal or of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power.
On the supposition of its having a constitutional obligation, this power in the judges would be permanent and irremediable by the legislature. On the other supposition, the power would not expire, until the legislature should have introduced a full system of statutory provisions. Let it be observed, too, that besides all the uncertainties above enumerated, and which present an immense field for judicial discretion, it would remain with the same department to decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.
A discretion of this sort has always been lamented as incongruous and dangerous, even in the colonial and state courts; although so much narrowed by positive provisions in the local codes on all the principal subjects embraced by the common law. Under the United States, where so few laws exist on those subjects, and where so great a lapse of time must happen before the vast chasm could be supplied, it is manifest that the power of the judges over the law would, in fact, erect them into legislators; and that, for a long time, it would be impossible for the citizens to conjecture, either what was, or would be law.
In the last place, the consequence of admitting the common law as the law of the United States, on the authority of the individual states, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the constitutions and laws of the states, the admission of it would overwhelm the residuary sovereignty of the states, and by one constructive operation, new-model the whole political fabric of the country.
From the review thus taken of the situation of the American colonies prior to their independence; of the effect of this event on their situation; of the nature and import of the articles of confederation; of the true meaning of the passage in the existing Constitution from which the common law has been deduced; of the difficulties and uncertainties incident to the doctrine; and of its vast consequences in extending the powers of the Federal Government, and in superseding the authorities of the state governments; the committee feel the utmost confidence in concluding, that the common law never was, nor, by any fair construction, ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn, by all candid and accurate inquirers into the subject. It is indeed distressing to reflect, that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers. A severer reproach could not, in the opinion of the committee, be thrown on the Constitution, on those who framed, or on those who established it, than such a supposition would throw on them.
The argument, then, drawn from the common law, on the ground of its being adopted or recognised by the Constitution, being inapplicable to the sedition-act, the committee will proceed to examine the other arguments which have been founded on the Constitution.
They will waste but little time on the attempt to cover the act by the preamble to the Constitution; it being contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect, of rendering nugatory or improper every part of the Constitution which succeeds the preamble.
The paragraph in Art. I. sect. 8, which contains the power to lay and collect taxes, duties, imposts, and excise; to pay the debts, and provide for the common defence and general welfare, having been already examined, will also require no particular attention in this place. It will have been seen that in its fair and consistent meaning, it cannot enlarge the enumerated powers vested in Congress.
The part of the Constitution which seems most to be recurred to, in defence of the “sedition-act,” is the last clause of the above section, empowering Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
The plain import of this clause is, that Congress shall have all the incidental or instrumental powers necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.
Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not, Congress cannot exercise it.
Let the question be asked, then, whether the power over the press, exercised in the “sedition-act,” be found among the powers expressly vested in the Congress? This is not pretended.
Is there any express power, for executing which it is a necessary and proper power?
The power which has been selected, as least remote, in answer to this question, is that of “suppressing insurrections;” which is said to imply a power to prevent insurrections, by punishing whatever may lead or tend to them. But, it surely cannot, with the least plausibility, be said, that a regulation of the press, and a punishment of libels, are exercises of a power to suppress insurrections. The most that could be said, would be, that the punishment of libels, if it had the tendency ascribed to it, might prevent the occasion of passing or executing laws necessary and proper for the suppression of insurrections.
Has the Federal Government no power, then, to prevent as well as to punish resistance to the laws?
They have the power, which the Constitution deemed most proper, in their hands for the purpose. The Congress has power before it happens, to pass laws for punishing it; and the executive and judiciary have power to enforce those laws when it does happen.
It must be recollected by many, and could be shown to the satisfaction of all, that the construction here put on the terms “necessary and proper,” is precisely the construction which prevailed during the discussions and ratifications of the Constitution. It may be added, and cannot too often be repeated, that it is a construction absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers only; not of the general and indefinite powers vested in ordinary governments. For, if the power to suppress insurrection, includes a power to punish libels; or if the power to punish, includes a power to prevent, by all the means that may have that tendency; such is the relation and influence among the most remote subjects of legislation, that a power over a very few, would carry with it a power over all. And it must be wholly immaterial, whether unlimited powers be exercised under the name of unlimited powers, or be exercised under the name of unlimited means of carrying into execution limited powers.
This branch of the subject will be closed with a reflection which must have weight with all; but more especially with those who place peculiar reliance on the judicial exposition of the Constitution, as the bulwark provided against undue extensions of the legislative power. If it be understood that the powers implied in the specified powers, have an immediate and appropriate relation to them, as means, necessary and proper for carrying them into execution, questions on the constitutionality of laws passed for this purpose, will be of a nature sufficiently precise and determinate for judicial cognizance and control! If, on the other hand, Congress are not limited in the choice of means by any such appropriate relation of them to the specified powers; but may employ all such means as they may deem fitted to prevent, as well as to punish, crimes subjected to their authority; such as may have a tendency only to promote an object for which they are authorized to provide; every one must perceive, that questions relating to means of this sort, must be questions of mere policy and expediency, on which legislative discretion alone can decide, and from which the judicial interposition and control are completely excluded.
2. The next point which the resolution requires to be proved, is, that the power over the press exercised by the sedition-act, is positively forbidden by one of the amendments to the Constitution.
The amendment stands in these words—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
In the attempts to vindicate the “sedition-act,” it has been contended, 1. That the “freedom of the press” is to be determined by the meaning of these terms in the common law. 2. That the article supposes the power over the press to be in Congress, and prohibits them only from abridging the freedom allowed to it by the common law.
Although it will be shown, in examining the second of these positions, that the amendment is a denial to Congress of all power over the press, it may not be useless to make the following observations on the first of them.
It is deemed to be a sound opinion, that the sedition-act, in its definition of some of the crimes created, is an abridgment of the freedom of publication, recognised by principles of the common law in England.
The freedom of the press under the common law, is, in the defences of the sedition-act, made to consist in an exemption from all previous restraint on printed publications, by persons authorized to inspect and prohibit them. It appears to the committee, that this idea of the freedom of the press, can never be admitted to be the American idea of it: since a law inflicting penalties on printed publications, would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say, that no law should be passed, preventing publications from being made, but that laws might be passed for punishing them in case they should be made.
The essential difference between the British government, and the American constitutions, will place this subject in the clearest light.
In the British government, the danger of encroachments on the rights of the people, is understood to be confined to the executive magistrate. The representatives of the people in the legislature, are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in its power; or, in their own language, is omnipotent. Hence, too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, &c., are not reared against the parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint by licensers appointed by the king, is all the freedom that can be secured to it.
In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence, in the United States, the great and essential rights of the people are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great Britain, but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws.
The state of the press, therefore, under the common law, cannot, in this point of view, be the standard of its freedom in the United States.
But there is another view, under which it may be necessary to consider this subject. It may be alleged, that although the security for the freedom of the press, be different in Great Britain and in this country; being a legal security only in the former, and a constitutional security in the latter; and although there may be a further difference, in an extension of the freedom of the press here, beyond an exemption from previous restraint, to an exemption from subsequent penalties also; yet that the actual legal freedom of the press, under the common law, must determine the degree of freedom which is meant by the terms, and which is constitutionally secured against both previous and subsequent restraints.
The committee are not unaware of the difficulty of all general questions, which may turn on the proper boundary between the liberty and licentiousness of the press. They will leave it therefore for consideration only, how far the difference between the nature of the British government, and the nature of the American governments, and the practice under the latter, may show the degree of rigour in the former to be inapplicable to, and not obligatory in the latter.
The nature of governments elective, limited, and responsible, in all their branches, may well be supposed to require a greater freedom of animadversion than might be tolerated by the genius of such a government as that of Great Britain. In the latter, it is a maxim, that the king, an hereditary, not a responsible magistrate, can do no wrong; and that the legislature, which in two-thirds of its composition, is also hereditary, not responsible, can do what it pleases. In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both being elective, are both responsible. Is it not natural and necessary, under such different circumstances, that a different degree of freedom, in the use of the press, should be contemplated?
Is not such an inference favoured by what is observable in Great Britain itself? Notwithstanding the general doctrine of the common law, on the subject of the press, and the occasional punishment of those who use it with a freedom offensive to the government; it is well known, that with respect to the responsible members of the government, where the reasons operating here, become applicable there, the freedom exercised by the press, and protected by the public opinion, far exceeds the limits prescribed by the ordinary rules of law. The ministry, who are responsible to impeachment, are at all times animadverted on, by the press, with peculiar freedom; and during the elections for the House of Commons, the other responsible part of the government, the press is employed with as little reserve towards the candidates.
The practice in America must be entitled to much more respect. In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this footing it yet stands. And it will not be a breach, either of truth or of candour, to say, that no persons or presses are in the habit of more unrestrained animadversions on the proceedings and functionaries of the state governments, than the persons and presses most zealous in vindicating the act of Congress for punishing similar animadversions on the government of the United States.
The last remark will not be understood as claiming for the state governments an immunity greater than they have heretofore enjoyed. Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true, than in that of the press. It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth, than by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect, that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity, over error and oppression; who reflect, that to the same beneficent source, the United States owe much of the lights which conducted them to the rank of a free and independent nation; and which have improved their political system into a shape so auspicious to their happiness. Had “sedition-acts,” forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day, under the infirmities of a sickly confederation? Might they not possibly be miserable colonies, groaning under a foreign yoke?
To these observations, one fact will be added, which demonstrates that the common law cannot be admitted as the universal expositor of American terms, which may be the same with those contained in that law. The freedom of conscience, and of religion, are found in the same instruments which assert the freedom of the press. It will never be admitted, that the meaning of the former, in the common law of England, is to limit their meaning in the United States.
Whatever weight may be allowed to these considerations, the committee do not, however, by any means intend to rest the question on them. They contend that the article of amendment, instead of supposing in Congress a power that might be exercised over the press, provided its freedom was not abridged, was meant as a positive denial to Congress, of any power whatever on the subject.
To demonstrate that this was the true object of the article, it will be sufficient to recall the circumstances which led to it, and to refer to the explanation accompanying the article.
When the Constitution was under the discussions which preceded its ratification, it is well known, that great apprehensions were expressed by many, lost the omission of some positive exception from the powers delegated, of certain rights, and of the freedom of the press particularly, might expose them to the danger of being drawn by construction within some of the powers vested in Congress; more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution, that all powers not given by it, were reserved; that no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them; that the power over the rights in question, and particularly over the press, was neither among the enumerated powers, nor incident to any of them; and consequently that an exercise of any such power, would be a manifest usurpation. It is painful to remark, how much the arguments now employed in behalf of the sedition-act, are at variance with the reasoning which then justified the Constitution, and invited its ratification.
From this posture of the subject, resulted the interesting question in so many of the conventions, whether the doubts and dangers ascribed to the Constitution, should be removed by any amendments previous to the ratification, or be postponed, in confidence that as far as they might be proper, they would be introduced in the form provided by the Constitution. The latter course was adopted; and in most of the states, the ratifications were followed by propositions and instructions for rendering the Constitution more explicit, and more safe to the rights not meant to be delegated by it. Among those rights, the freedom of the press, in most instances, is particularly and emphatically mentioned. The firm and very pointed manner, in which it is asserted in the proceedings of the convention of this state, will be hereafter seen.
In pursuance of the wishes thus expressed, the first Congress that assembled under the Constitution, proposed certain amendments which have since, by the necessary ratifications, been made a part of it; among which amendments, is the article containing, among other prohibitions on the Congress, an express declaration that they should make no law abridging the freedom of the press.
Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt, that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood; and that the amendment was intended as a positive and absolute reservation of it.
But the evidence is still stronger. The proposition of amendment is made by Congress, is introduced in the following terms: “The conventions of a number of the states having at the time of their adopting the Constitution expressed a desire, in order to prevent misconstructions or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institutions.”
Here is the most satisfactory and authentic proof, that the several amendments proposed, were to be considered as either declaratory or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of the states, and as extending the ground of public confidence in the government.
Under any other construction of the amendment relating to the press, than that it declared the press to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the states, nor be calculated to extend the ground of public confidence in the government.
Nay more; the construction employed to justify the “sedition-act,” would exhibit a phenomenon, without a parallel in the political world. It would exhibit a number of respectable states, as denying first that any power over the press was delegated by the Constitution; as proposing next, that an amendment to it, should explicitly declare that no such power was delegated; and finally, as concurring in an amendment actually recognising or delegating such a power.
Is then the federal government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it?
The Constitution alone can answer this question. If no such power be expressly delegated, and it be not both necessary and proper to carry into execution an express power; above all, if it be expressly forbidden by a declaratory amendment to the Constitution, the answer must be, that the federal government is destitute of all such authority.
And might it not be asked in turn, whether it is not more probable, under all the circumstances which have been reviewed, that the authority should be withheld by the Constitution, than that it should be left to a vague and violent construction; whilst so much pains were bestowed in enumerating other powers, and so many less important powers are included in the enumeration?
Might it not be likewise asked, whether the anxious circumspection which dictated so many peculiar limitations on the general authority, would be unlikely to exempt the press altogether from that authority? The peculiar magnitude of some of the powers necessarily committed to the federal government; the peculiar duration required for the functions of some of its departments; the peculiar distance of the seat of its proceedings from the great body of its constituents; and the peculiar difficulty of circulating an adequate knowledge of them through any other channel; will not these considerations, some or other of which produced other exceptions from the powers of ordinary governments, all together, account for the policy of binding the hand of the federal government, from touching the channel which alone can give efficacy to its responsibility to its constituents; and of leaving those who administer it, to a remedy for their injured reputations, under the same laws, and in the same tribunals, which protect their lives, their liberties, and their properties?
But the question does not turn either on the wisdom of the Constitution, or on the policy which gave rise to its particular organization. It turns on the actual meaning of the instrument; by which it has appeared, that a power over the press is clearly excluded, from the number of powers delegated to the federal government.
3. And in the opinion of the committee, well may it be said, as the resolution concludes with saying, that the unconstitutional power exercised over the press by the “sedition-act,” ought “more than any other, to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
Without scrutinizing minutely into all the provisions of the “sedition-act,” it will be sufficient to cite so much of section 2, as follows: “And be it further enacted, that if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with an intent to defame the said government, or either house of the said Congress, or the President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either, or any of them, the hatred of the good people of the United States, &c. Then such person being thereof convicted before any court of the United States, having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”
On this part of the act, the following observations present themselves:
May it not be asked of every intelligent friend to the liberties of his country, whether the power exercised in such an act as this, ought not to produce great and universal alarm? Whether a rigid execution of such an act, in time past, would not have repressed that information and communication among the people, which is indispensable to the just exercise of their electoral rights? And whether such an act, if made perpetual, and enforced with rigour, would not, in time to come, either destroy our free system of government, or prepare a convulsion that might prove equally fatal to it?
In answer to such questions, it has been pleaded that the writings and publications forbidden by the act, are those only which are false and malicious, and intended to defame; and merit is claimed for the privilege allowed to authors to justify, by proving the truth of their publications, and for the limitations to which the sentence of fine and imprisonment is subjected.
To those who concurred in the act, under the extraordinary belief that the option lay between the passing of such an act, and leaving in force the common law of libels, which punishes truth equally with falsehood, and submits the fine and imprisonment to the indefinite discretion of the court, the merit of good intentions ought surely not to be refused. A like merit may perhaps be due for the discontinuance of the corporal punishment, which the common law also leaves to the discretion of the court. This merit of intention, however, would have been greater, if the several mitigations had not been limited to so short a period; and the apparent inconsistency would have been avoided, between justifying the act at one time, by contrasting it with the rigors of the common law, otherwise in force, and at another time by appealing to the nature of the crisis, as requiring the temporary rigour exerted by the act.
But, whatever may have been the meritorious intentions of all or any who contributed to the sedition-act, a very few reflections will prove, that its baneful tendency is little diminished by the privilege of giving in evidence the truth of the matter contained in political writings.
In the first place, where simple and naked facts alone are in question, there is sufficient difficulty in some cases, and sufficient trouble and vexation in all, of meeting a prosecution from the government, with the full and formal proof necessary in a court of law.
But in the next place, it must be obvious to the plainest minds, that opinions, and inferences, and conjectural observations, are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions and inferences, and conjectural observations, cannot be subjects of that kind of proof which appertains to facts, before a court of law.
Again: It is no less obvious, that the intent to defame or bring into contempt or disrepute, or hatred, which is made a condition of the offence created by the act, cannot prevent its pernicious influence on the freedom of the press. For, omitting the inquiry, how far the malice of the intent is an inference of the law from the mere publication, it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures: because those who engage in such discussions, must expect and intend to excite these unfavourable sentiments, so far as they may be thought to be deserved. To prohibit, therefore, the intent to excite those unfavourable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them, is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it, by free animadversions on their characters and conduct. Nor can there be a doubt, if those in public trust be shielded by penal laws from such strictures of the press, as may expose them to contempt or disrepute, or hatred, where they may deserve it, in exact proportion as they may deserve to be exposed, will be the certainty and criminality of the intent to expose them, and the vigilance of prosecuting and punishing it; nor a doubt, that a government thus intrenched in penal statutes, against the just and natural effects of a culpable administration, will easily evade the responsibility, which is essential to a faithful discharge of its duty.
Let it be recollected, lastly, that the right of electing the members of the government, constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right, depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. It has been seen, that a number of important elections will take place whilst the act is in force, although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the government, to be competitions between those who are, and those who are not, members of the government, what will be the situations of the competitors? Not equal; because the characters of the former will be covered by the “sedition-act” from animadversions exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people, without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors, whose pretensions they are not permitted, by the act, equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it?
It is with justice, therefore, that the General Assembly have affirmed in the resolution, as well that the right of freely examining public characters and measures, and free communication thereon, is the only effectual guardian of every other right, as that this particular right is levelled at, by the power exercised in the “sedition-act.”
The resolution next in order is as follows:
That this state having by its convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry and ambition, having, with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution, it would mark a reproachful inconsistency, and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured; and the establishment of a precedent, which may be fatal to the other.
To place this resolution in its just light, it will be necessary to recur to the act of ratification by Virginia, which stands in the ensuing form:
We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the federal convention, and being prepared as well as the most mature deliberation hath enabled us to decide thereon, do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them, and at their will. That, therefore, no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate, or House of Representatives, acting in any capacity, by the President, or any depart-ment or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.
Here is an express and solemn declaration by the convention of the state, that they ratified the Constitution in the sense, that no right of any denomination can be cancelled, abridged, restrained, or modified by the government of the United States or any part of it; except in those instances in which power is given by the Constitution; and in the sense particularly, “that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.”
Words could not well express, in a fuller or more forcible manner, the understanding of the convention, that the liberty of conscience and the freedom of the press, were equally and completely exempted from all authority whatever of the United States.
Under an anxiety to guard more effectually these rights against every possible danger, the convention, after ratifying the Constitution, proceeded to prefix to certain amendments proposed by them, a declaration of rights, in which are two articles providing, the one for the liberty of conscience, the other for the freedom of speech and of the press.
Similar recommendations having proceeded from a number of other states, and Congress, as has been seen, having in consequence thereof, and with a view to extend the ground of public confidence, proposed, among other declaratory and restrictive clauses, a clause expressly securing the liberty of conscience and of the press; and Virginia having concurred in the ratifications which made them a part of the Constitution, it will remain with a candid public to decide, whether it would not mark an inconsistency and degeneracy, if an indifference were now shown to a palpable violation of one of those rights, the freedom of the press; and to a precedent therein, which may be fatal to the other, the free exercise of religion.
That the precedent established by the violation of the former of these rights, may, as is affirmed by the resolution, be fatal to the latter, appears to be demonstrable, by a comparison of the grounds on which they respectively rest; and from the scope of reasoning, by which the power over the former has been vindicated.
First. Both of these rights, the liberty of conscience and of the press, rest equally on the original ground of not being delegated by the Constitution, and consequently withheld from the government. Any construction, therefore, that would attack this original security for the one, must have the like effect on the other.
Secondly. They are both equally secured by the supplement to the Constitution; being both included in the same amendment; made at the same time, and by the same authority. Any construction or argument, then, which would turn the amendment into a grant or acknowledgment of power with respect to the press, might be equally applied to the freedom of religion.
Thirdly. If it be admitted that the extent of the freedom of the press, secured by the amendment, is to be measured by the common law on this subject, the same authority may be resorted to, for the standard which is to fix the extent of the “free exercise of religion.” It cannot be necessary to say what this standard would be; whether the common law be taken solely as the unwritten, or as varied by the written law of England.
Fourthly. If the words and phrases in the amendment, are to be considered as chosen with a studied discrimination, which yields an argument for a power over the press, under the limitation that its freedom be not abridged, the same argument results from the same consideration, for a power over the exercise of religion, under the limitation that its freedom be not prohibited.
For, if Congress may regulate the freedom of the press, provided they do not abridge it, because it is said only “they shall not abridge it,” and is not said, “they shall make no law respecting it,” the analogy of reasoning is conclusive, that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it, because it is said only “they shall not prohibit it,” and is not said, “they shall make no law respecting, or no law abridging it.”
The General Assembly were governed by the clearest reason, then, in considering the “sedition-act,” which legislates on the freedom of the press, as establishing a precedent that may be fatal to the liberty of conscience; and it will be the duty of all, in proportion as they value the security of the latter, to take the alarm at every encroachment on the former.
The two concluding resolutions only remain to be examined. They are in the words following:
That the good people of this commonwealth, having ever felt and continuing to feel the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that Constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and, that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively, or to the people.
That the governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the legislature thereof; and that a copy be furnished to each of the senators and representatives representing this state in the Congress of the United States.
The fairness and regularity of the course of proceeding here pursued, have not protected it against objections even from sources too respectable to be disregarded.
It has been said, that it belongs to the judiciary of the United States, and not the state legislatures, to declare the meaning of the Federal Constitution.
But a declaration that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens, nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.
Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.
And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches.
The legislatures of the states have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states, or parts of states, the legislatures of the states concerned are, as well as Congress, to concur in the measure. The states have a right also to enter into agreements or compacts, with the consent of Congress. In all such cases, a communication among them results from the object which is common to them.
It is lastly to be seen, whether the confidence expressed by the resolution, that the necessary and proper measures would be taken by the other states for co-operating with Virginia in maintaining the rights reserved to the states, or to the people, be in any degree liable to the objections which have been raised against it.
If it be liable to objection, it must be because either the object or the means are objectionable.
The object being to maintain what the Constitution has ordained, is in itself a laudable object.
The means are expressed in the terms “the necessary and proper measures.” A proper object was to be pursued, by means both necessary and proper.
To find an objection, then, it must be shown that some meaning was annexed to these general terms, which was not proper; and, for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the terms could refer.
In the example given by the state, of declaring the alien and sedition-acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported, too, by the numerous applications flowing immediately from the people, it can scarcely be doubted, that these simple means would have been as sufficient, as they are unexceptionable.
It is no less certain that other means might have been employed, which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or, they might have represented to their respective senators in Congress their wish, that two-thirds thereof would propose an explanatory amendment to the Constitution; or two-thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.
These several means, though not equally eligible in themselves, nor probably, to the states, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.
These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten, that among the arguments addressed to those who apprehended danger to liberty from the establishment of the General Government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments, between the people and that government, to the vigilance with which they would descry the first symptoms of usurpation; and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one then, to recommend the establishment of the Constitution, it must be a proper one now, to assist in its interpretation.
The only part of the two concluding resolutions that remains to be noticed, is the repetition in the first, of that warm affection to the union and its members, and of that scrupulous fidelity to the Constitution, which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those, who have listened to the suggestion, can only be left to their own recollection of the part which this state has borne in the establishment of our national independence, in the establishment of our national Constitution, and in maintaining under it the authority and laws of the Union, without a single exception of internal resistance or commotion. By recurring to these facts, they will be able to convince themselves, that the representatives of the people of Virginia, must be above the necessity of opposing any other shield to attacks on their national patriotism, than their own consciousness, and the justice of an enlightened public; who will perceive in the resolutions themselves, the strongest evidence of attachment both to the Constitution and to the Union, since it is only by maintaining the different governments and departments within their respective limits, that the blessings of either can be perpetuated.
The extensive view of the subject thus taken by the committee, has led them to report to the House, as the result of the whole, the following resolution:
Resolved, That the General Assembly, having carefully and respectfully attended to the proceedings of a number of the states, in answer to its resolutions of December 21, 1798, and having accurately and fully re-examined and reconsidered the latter, finds it to be its indispensable duty to adhere to the same, as founded in truth, as consonant with the Constitution, and as conducive to its preservation; and more especially to be its duty to renew, as it does hereby renew, its protest against “the alien and sedition-acts,” as palpable and alarming infractions of the Constitution.
Lance Banning, Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004). Chapter: thomas jefferson Draft of the Kentucky Resolutions October 1798
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1. Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general Government for special purposes,—delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
2. Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in addition to the act entitled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the day of June, 1798, entitled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution), are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.
3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, entitled “An Act in addition to the act entitled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.
4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the day of July, 1798, entitled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.
5. Resolved, That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808;” that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.
6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act entitled “An Act concerning aliens,” is contrary to the Constitution, one amendment to which has provided that “no person shall be deprived of liberty without due process of law”; and that another having provided that “in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense,” the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that “the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior”; and the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the General Government who already possesses all the Executive, and a negative on all legislative powers.
7. Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.
8th. Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the legislatures of the several States; to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man or body of men on earth: that in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes, punish it themselves whether enumerated or not enumerated by the Constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors, and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism—free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the alien and sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to, and accepted over the friendly strangers to whom the mild spirit of our country and its laws have pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, not merely as the cases made federal (casus foederis), but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.
9th. Resolved, That the said committee be authorized to communicate by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more co-States to correspond or confer with them; and that they lay their proceedings before the next session of Assembly.
Lance Banning, Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004). Chapter: thomas jefferson The First Inaugural Address 4 March 1801
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Called upon to undertake the duties of the first executive office of our country, I avail myself of the presence of that portion of my fellow-citizens which is here assembled to express my grateful thanks for the favor with which they have been pleased to look toward me, to declare a sincere consciousness that the task is above my talents, and that I approach it with those anxious and awful presentiments which the greatness of the charge and the weakness of my powers so justly inspire. A rising nation, spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye—when I contemplate these transcendent objects, and see the honor, the happiness, and the hopes of this beloved country committed to the issue and the auspices of this day, I shrink from the contemplation, and humble myself before the magnitude of the undertaking. Utterly, indeed, should I despair did not the presence of many whom I here see remind me that in the other high authorities provided by our Constitution I shall find resources of wisdom, of virtue, and of zeal on which to rely under all difficulties. To you, then, gentlemen, who are charged with the sovereign functions of legislation, and to those associated with you, I look with encouragement for that guidance and support which may enable us to steer with safety the vessel in which we are all embarked amidst the conflicting elements of a troubled world.
During the contest of opinion through which we have passed the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions. During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others, and should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government cannot be strong, that this Government is not strong enough; but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world’s best hope, may by possibility want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.
Let us, then, with courage and confidence pursue our own Federal and Republican principles, our attachment to union and representative government. Kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe; too high-minded to endure the degradations of the others; possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation, entertaining a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens, resulting not from birth, but from our actions and their sense of them; enlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter—with all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens—a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.
About to enter, fellow-citizens, on the exercise of duties which comprehend everything dear and valuable to you, it is proper you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration. I will compress them within the narrowest compass they will bear, stating the general principle, but not all its limitations. Equal and exact justice to all men, of whatever state or persuasion, religious or political; peace, commerce, and honest friendship with all nations, entangling alliances with none; the support of the state governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against antirepublican tendencies; the preservation of the General Government in its whole constitutional vigor, as the sheet anchor of our peace at home and safety abroad; a jealous care of the right of election by the people—a mild and safe corrective of abuses which are lopped by the sword of revolution where peaceable remedies are unprovided; absolute acquiescence in the decisions of the majority, the vital principle of republics, from which is no appeal but to force, the vital principle and immediate parent of despotism; a well-disciplined militia, our best reliance in peace and for the first moments of war till regulars may relieve them; the supremacy of the civil over the military authority; economy in the public expense, that labor may be lightly burthened; the honest payment of our debts and sacred preservation of the public faith; encouragement of agriculture, and of commerce as its handmaid; the diffusion of information and arraignment of all abuses at the bar of the public reason; freedom of religion; freedom of the press, and freedom of person under the protection of the habeas corpus, and trial by juries impartially selected. These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.
I repair, then, fellow-citizens, to the post you have assigned me. With experience enough in subordinate offices to have seen the difficulties of this the greatest of all, I have learnt to expect that it will rarely fall to the lot of imperfect man to retire from this station with the reputation and the favor which bring him into it. Without pretensions to that high confidence you reposed in our first and greatest revolutionary character, whose preeminent services had entitled him to the first place in his country’s love and destined for him the fairest page in the volume of faithful history, I ask so much confidence only as may give firmness and effect to the legal administration of your affairs, I shall often go wrong through defect of judgment. When right, I shall often be thought wrong by those whose positions will not command a view of the whole ground. I ask your indulgence for my own errors, which will never be intentional, and your support against the errors of others, who may condemn what they would not if seen in all its parts. The approbation implied by your suffrage is a great consolation to me for the past, and my future solicitude will be to retain the good opinion of those who have bestowed it in advance, to conciliate that of others by doing them all the good in my power, and to be instrumental to the happiness and freedom of all.
Relying, then, on the patronage of your good will, I advance with obedience to the work, ready to retire from it whenever you become sensible how much better choice it is in your power to make. And may that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity.
Lance Banning, Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004). Chapter: thomas jefferson First Annual Message 8 December 1801
Accessed from oll.libertyfund.org/title/875/63989 on 2010-02-10
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fellow Citizens of the Senate and House of Representatives:
It is a circumstance of sincere gratification to me that on meeting the great council of our nation, I am able to announce to them, on the grounds of reasonable certainty, that the wars and troubles which have for so many years afflicted our sister nations have at length come to an end, and that the communications of peace and commerce are once more opening among them. While we devoutly return thanks to the beneficent Being who has been pleased to breathe into them the spirit of conciliation and forgiveness, we are bound with peculiar gratitude to be thankful to him that our own peace has been preserved through so perilous a season, and ourselves permitted quietly to cultivate the earth and to practice and improve those arts which tend to increase our comforts. The assurances, indeed, of friendly disposition, received from all the powers with whom we have principal relations, had inspired a confidence that our peace with them would not have been disturbed. But a cessation of the irregularities which had affected the commerce of neutral nations, and of the irritations and injuries produced by them, cannot but add to this confidence; and strengthens, at the same time, the hope that wrongs committed on offending friends, under a pressure of circumstances, will now be reviewed with candor and will be considered as founding just claims of retribution for the past and new assurances for the future.
Among our Indian neighbors, also, a spirit of peace and friendship [is] generally prevailing and I am happy to inform you that the continued efforts to introduce among them the implements and the practice of husbandry and of the household arts, have not been without success; that they are becoming more and more sensible of the superiority of this dependence for clothing and subsistence over the precarious resources of hunting and fishing; and already we are able to announce that instead of that constant diminution of their numbers, produced by their wars and their wants, some of them begin to experience an increase of population.
To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The bey had already declared war in form. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril. The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterett, which had gone as a tender to our larger vessels, was captured after a heavy slaughter of her men, without the loss of a single one on our part. The bravery exhibited by our citizens on that element will, I trust, be a testimony to the world that it is not the want of that virtue which makes us seek their peace, but a conscientious desire to direct the energies of our nation to the multiplication of the human race and not to its destruction. Unauthorized by the constitution, without the sanction of Congress, to go out beyond the line of defense, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of the important function confided by the Constitution to the legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight… .
I lay before you the result of the census lately taken of our inhabitants, to a conformity with which we are to reduce the ensuing rates of representation and taxation. You will perceive that the increase of numbers during the last ten years, proceeding in geometrical ratio, promises a duplication in little more than twenty-two years. We contemplate this rapid growth, and the prospect it holds up to us, not with a view to the injuries it may enable us to do to others in some future day, but to the settlement of the extensive country still remaining vacant within our limits, to the multiplications of men susceptible of happiness, educated in the love of order, habituated to self-government, and valu[ing] its blessings above all price.
Other circumstances, combined with the increase of numbers, have produced an augmentation of revenue arising from consumption in a ratio far beyond that of population alone, and … there is reasonable ground of confidence that we may now safely dispense with all the internal taxes, comprehending excises, stamps, auctions, licenses, carriages, and refined sugars, to which the postage on newspapers may be added, to facilitate the progress of information, and that the remaining sources of revenue will be sufficient to provide for the support of government, to pay the interest on the public debts, and to discharge the principals in shorter periods than the laws or the general expectations had contemplated. War, indeed, and untoward events, may change this prospect of things and call for expenses which the imposts could not meet; but sound principles will not justify our taxing the industry of our fellow citizens to accumulate treasure for wars to happen we know not when, and which might not perhaps happen but from the temptations offered by that treasure.
These views, however, of reducing our burdens are formed on the expectation that a sensible, and at the same time a salutary reduction may take place in our habitual expenditures. For this purpose, those of the civil government, the army, and navy will need revisal.
When we consider that this government is charged with the external and mutual relations only of these states; that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices or officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote. … Among those who are dependent on executive discretion, I have begun the reduction of what was deemed necessary. The expenses of diplomatic agency have been considerably diminished. The inspectors of internal revenue who were found to obstruct the accountability of the institution, have been discontinued. Several agencies created by executive authority, on salaries fixed by that also, have been suppressed, and should suggest the expediency of regulating that power by law so as to subject its exercises to legislative inspection and sanction. Other reformations of the same kind will be pursued with that caution which is requisite in removing useless things, not to injure what is retained. But the great mass of public offices is established by law and, therefore, by law alone can be abolished. Should the legislature think it expedient to pass this roll in review and try all its parts by the test of public utility, they may be assured of every aid and light which executive information can yield. Considering the general tendency to multiply offices and dependencies, and to increase expense to the ultimate term of burden which the citizen can bear, it behooves us to avail ourselves of every occasion which presents itself for taking off the surcharge; that it may never be seen here that, after leaving to labor the smallest portion of its earnings on which it can subsist, government shall itself consume the residue of what it was instituted to guard.
In our care, too, of the public contributions entrusted to our direction, it would be prudent to multiply barriers against their dissipation by appropriating specific sums to every specific purpose susceptible of definition; by disallowing applications of money varying from the appropriation in object or transcending it in amount; by reducing the undefined field of contingencies and thereby circumscribing discretionary powers over money; and by bringing back to a single department all accountabilities for money where the examination may be prompt, efficacious, and uniform.
An account of the receipts and expenditures of the last year, as prepared by the secretary of the treasury, will as usual be laid before you. The success which has attended the late sales of the public lands shows that with attention they may be made an important source of receipt. Among the payments, those made in discharge of the principal and interest of the national debt will show that the public faith has been exactly maintained. To these will be added an estimate of appropriations necessary for the ensuing year. This last will of course be effected by such modifications of the systems of expense as you shall think proper to adopt.
A statement has been formed by the secretary of war, on mature consideration, of all the posts and stations where garrisons will be expedient and of the number of men requisite for each garrison. The whole amount is considerably short of the present military establishment. For the surplus no particular use can be pointed out. For defense against invasion, their number is as nothing; nor is it conceived needful or safe that a standing army should be kept up in time of peace for that purpose. Uncertain as we must ever be of the particular point in our circumference where an enemy may choose to invade us, the only force which can be ready at every point and competent to oppose them is the body of neighboring citizens as formed into a militia. On these, collected from the parts most convenient, in numbers proportioned to the invading foe, it is best to rely, not only to meet the first attack, but if it threatens to be permanent, to maintain the defense until regulars may be engaged to relieve them. These considerations render it important that we should at every session continue to amend the defects which from time to time show themselves in the laws for regulating the militia until they are sufficiently perfect. Nor should we now or at any time separate until we can say we have done everything for the militia which we could do were an enemy at our door.
The provisions of military stores on hand will be laid before you, that you may judge of the additions still requisite.
With respect to the extent to which our naval preparations should be carried, some difference of opinion may be expected to appear; but just attention to the circumstances of every part of the Union will doubtless reconcile all. A small force will probably continue to be wanted for actual service in the Mediterranean. Whatever annual sum beyond that you may think proper to appropriate to naval preparations would perhaps be better employed in providing those articles which may be kept without waste or consumption, and be in readiness when any exigence calls them into use… .
Agriculture, manufactures, commerce, and navigation, the four pillars of our prosperity, are the most thriving when left most free to individual enterprise. Protection from casual embarrassments, however, may sometimes be seasonably interposed. If in the course of your observations or inquiries they should appear to need any aid within the limits of our constitutional powers, your sense of their importance is a sufficient assurance they will occupy your attention. We cannot, indeed, but all feel an anxious solicitude for the difficulties under which our carrying trade will soon be placed. How far it can be relieved, otherwise than by time, is a subject of important consideration.
The judiciary system of the United States, and especially that portion of it recently erected, will of course present itself to the contemplation of Congress; and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts and of those which were depending when additional courts and judges were brought in to their aid.
And while on the judiciary organization, it will be worthy your consideration whether the protection of the inestimable institution of juries has been extended to all the cases involving the security of our persons and property. Their impartial selection also being essential to their value, we ought further to consider whether that is sufficiently secured in those states where they are named by a marshal depending on executive will or designated by the court or by officers dependent on them.
I cannot omit recommending a revisal of the laws on the subject of naturalization. Considering the ordinary chances of human life, a denial of citizenship under a residence of fourteen years is a denial to a great proportion of those who ask it, and controls a policy pursued from their first settlement by many of these states and still believed of consequence to their prosperity. And shall we refuse the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our fathers arriving in this land? Shall oppressed humanity find no asylum on this globe? The constitution, indeed, has wisely provided that, for admission to certain offices of important trust, a residence shall be required sufficient to develop character and design. But might not the general character and capabilities of a citizen be safely communicated to every one manifesting a bona fide purpose of embarking his life and fortunes permanently with us? with restrictions, perhaps, to guard against the fraudulent usurpation of our flag; an abuse which brings so much embarrassment and loss on the genuine citizen, and so much danger to the nation of being involved in war, that no endeavor should be spared to detect and suppress it.
These, fellow citizens, are the matters respecting the state of the nation, which I have thought of importance to be submitted to your consideration at this time. Some others of less moment, or not yet ready for communication, will be the subject of separate messages. I am happy in this opportunity of committing the arduous affairs of our government to the collected wisdom of the Union. Nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution. The prudence and temperance of your discussions will promote, within your own walls, that conciliation which so much befriends national conclusion; and by its example will encourage among our constituents that progress of opinion which is tending to unite them in object and in will. That all should be satisfied with any one order of things is not to be expected, but I indulge the pleasing persuasion that the great body of our citizens will cordially concur in honest and disinterested efforts, which have for their object to preserve the general and state governments in their constitutional form and equilibrium; to maintain peace abroad and order and obedience to the laws at home; to establish principles and practices of administration favorable to the security of liberty and prosperity, and to reduce expenses to what is necessary for the useful purposes of government.
As he entered the campaign of 1800 and, again, as the Congress began to act on the suggestions of his message of December 1801, the president sketched his program and intentions in letters to his friends. For years, he was to prove remarkably successful in keeping his party behind him. But there were dissidents on both of his extremes.
Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). Chapter: Letter to the Danbury Baptist Association
Accessed from oll.libertyfund.org/title/669/206103 on 2010-02-10
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
January 1, 1802
Jefferson’s letter to the Danbury Baptist Association expresses the belief that religious and public life should be kept strictly separate. In the letter, Jefferson articulates only one of several American views on the proper relationship between religion and politics.
January 1, 1802
Gentlemen,—The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.
Immigrants to America brought with them a long tradition of chartered rights. In determining the limits of political authority, they looked to a rich history, encapsulated in several important documents, of social and political custom. From Magna Charta, or the “Great Charter,” of 1215 through the English Bill of Rights, Englishmen had won successive victories in their battles (sometimes literally fought with fire and sword) to limit their king’s ability to imprison subjects indefinitely without trial, try subjects in arbitrary ways, quarter troops in subjects’ homes, and otherwise do as he wished with those whom he ruled.
The colonists ruled themselves under their own charters, or grants from the king. These charters gave them certain rights and reserved others for the king, his ministers, or other governing persons or bodies (for example, a proprietary or royal governor). Americans believed that these charters established their rights, as English subjects, to all the other rights derived from Magna Charta. The king and parliament of Great Britain did not accept this view. The result was a long history of tension between colonials and the government in the mother country. It was during this time of tension that Americans developed a distinctive reading of their history and their rights as English subjects and human beings.