The first essay of the Impartial Examiner appeared in the Virginia Independent Chronicle, during February and March of 1788, and the remaining four in successive weeks in May and June. He makes and elaborates a distinction between arbitrary and free governments, and finds the proposed Constitution arbitrary: it provides for unlimited supremacy of the federal government. There is no declaration of rights, without which civil liberty cannot exist, there being no standard to appeal to in cases of governmental oppression. The Constitution grants dangerous and unlimited powers in the areas of taxation, standing armies, and the judiciary. He contends that the problem is to perpetuate the free republic as the leaders grow restless for exercise of ambition, and as the people grow fat with prosperity.
He argues in the second essay that arbitrary government is inherently despotic. The first question to be raised is whether the system proposed is "coincident with [American] standing maxims of liberty" and the second whether it is "conducive to good policy". Having shown in the first essay that the system fails with respect to the former, he argues that no examination of the latter is strictly necessary.
In essay III he contends that representation must be both ample and complete and that the representation in the House of Representatives is not sufficiently numerous to be either. The Senate is elected not by the people but by the state legislatures and is open to even stronger objections.
In essay IV, he argues that the executive veto proposed by the new Constitution will destroy rather than maintain the balance in the American republican system.
In his concluding essay V the Impartial Examiner argues that the evils experienced under the Articles of Confederation spring not from vicious principles pervading the whole system but from certain weaknesses in some of the parts, which may be remedied by strengthening these parts, as by investing Congress with sufficient power to regulate commerce and to procure the necessary revenue for the common defense or general welfare.
Countrymen and Fellow-Citizens,
That the subject, which has given rise to the following observations, is of the highest consequence to this country, requires not the aid of logical proof; that it merits the most serious attention of every member of this community, is a fact not to be controverted. Will not a bare mention of the new Foederal Constitution justify this remark? To foreigners or such, whose local connections form no permanent interest in America, this may be totally indifferent; and to them it may afford mere matter of speculation and private amusement. When such advert to the high and distinguished characters, who have drawn up, and proposed a set of articles to the people of an extensive continent as a form of their future government, an emotion of curiosity may induce them to examine the contents of those articles: and they may, perhaps, from having contemplated on a former situation of those people — that they had struggled against a potent enemy — that they had by their virtuous and patriotic exertions rescued themselves from impending danger — that they had used the like endeavors to establish for themselves a system of government upon free and liberal principles — that they had in pursuance of those endeavors chosen a system, as conducive to the great ends of human happiness, the preservation of their natural rights and liberties — that this system has prevailed but a few years; and now already a change, a fundamental change therein is meditated: — strangers, I say, having contemplated on these circumstances, may be led to consider this nation, as a restless and dissatisfied people, whose fickle inconsistent minds suffer them not to abide long in the same situation; who perpetually seeking after new things throw away one blessing in pursuit of another: and while they are thus indulging their caprice — lose all, ere any can ripen into maturity. If the unconcerned part of those among us entertain themselves in this manner, can any good American be content to deserve such reflections? Will not all rather feel an honest indignation, if they once perceive their country stamped with a character like this? And yet, may we not justify such conceptions, if we thus precipitate ourselves into a new government before we have sufficiently tried the virtues of the old? So incident is error to the human mind, that it is not to be wondered at indeed, if our present Constitution is incomplete. The best regulated governments have their defects, and might perhaps admit of improvement: but the great difficulty consists in clearly discovering the most exceptionable parts and judiciously applying the amendments. A wise nation will, therefore, attempt innovations of this kind with much circumspection. They will view the political fabric, which they have once reared, as the sacred palladium of their happiness; — they will touch it, as a man of tender sensibility toucheth the apple of his own eye, — they will touch it with a light, with a trembling — with a cautious hand, — lest they injure the whole structure in endeavoring to reform any of its parts. In small and trivial points alterations may be attempted with less danger; but — where the very nature, the essence of the thing is to be changed: when the foundation itself is to be transformed, and the whole plan entirely new modelled; — should you not hesitate, O Americans? Should you not pause — and reflect a while on the the important step, you are about to take? Does it not behove you to examine well into the nature and tendency of the Constitution now proposed for your adoption? And by comparing it with your present mode of government, endeavor to distinguish which of the two is most eligible? Whether this or that is best calculated for promoting your happiness? for obtaining and securing those benefits, which are the great object of civil society? Will it be consistent with the duty, which you owe to yourselves, as a nation, or with the affection, which you ought to bear for your posterity, if you rashly or inconsiderately adopt a measure, which is to influence the fate of this country for ages yet to come? How will it accord with your dignity and reputation, as an independent people, if either through an over-weaning fondness for novelty you are suddenly transported on the wings of imagination, and too hastily make up your thoughts on this great subject; or by sinking into a listless inactivity of mind, view it as an indifferent matter unworthy of any deliberate consideration? Will any respect? Will any honor? Will any veneration be due to the memory of yourselves, as ancestors, if millions of beings, who have not yet received their birth, when you are all mouldered into dust, should find themselves fixed in a miserable condition by one injudicious determination of your's at this period? If you see no impropriety in these questions, the suggestions contained in them will not appear altogether unworthy of attention. One moment's reflection, it is humbly presumed, will render it obvious that on this occasion they are not impertinently propounded.
In pursuing this address I beg leave to premise that the only true point of distinction between arbitrary and free governments seems to be, that in the former the governors are invested with powers of acting according to their own wills, without any other limits than what they themselves may understand to be necessary for the general good; whereas in the latter they are intrusted with no such unlimited authority, but are restrained in their operations to conform to certain fundamental principles, the preservation whereof is expressly stipulated for in the civil compact: and whatever is not so stipulated for is virtually and impliedly given up. Societies so constituted invest their supreme governors with ample powers of exerting themselves according to their own judgment in every thing not inconsistent with or derogatory to those principles; and so long as they adhere to such restrictions, their deeds ought not to be rescinded or controuled by any other power whatsoever. Those principles are certain inherent rights pertaining to all mankind in a state of natural liberty, which through the weakness, imperfection, and depravity of human nature cannot be secured in that state. Men, therefore, agree to enter into society, that by the united force of many the rights of each individual may be protected and secured. These are in all just governments laid down as a foundation to the civil compact, which contains a covenant between each with all, that they shall enter into one society to be governed by the same powers; establishes for that purpose the frame of government; and consequently creates a Convention between every member, binding those, who shall at any time be intrusted with power, to a faithful administration of their trust according to the form of the civil policy, which they have so constituted, and obliging all to a due obedience therein. There can be no other just origin of civil power, but some such mutual contract of all the people: and although their great object in forming society is an intention to secure their natural rights; yet the relations arising from this political union create certain duties and obligations to the state, which require a sacrifice of some portion of those rights and of that exuberance of liberty, which obtains in a state of nature. — This, however, being compensated by certain other adventitious rights and privileges, which are acquired by the social connection; it follows that the advantages derived from a government are to be estimated by the strength of the security, which is attended at once with the least sacrifice and the greatest acquired benefits. That government, therefore, which is best adapted for promoting these three great ends, must certainly be the best constituted scheme of civil policy. Here, then, it may not be improper to remark that persons forming a social community cannot take too much precaution when they are about to establish the plan of their government. They ought to construct it in such a manner as to procure the best possible security for their rights; — in doing this they ought to give up no greater share than what is understood to be absolutely necessary: — and they should endeavor so to organize, arrange and connect it's several branches, that when duly exercised it may tend to promote the common good of all, and contribute as many advantages, as the civil institution is capable of. It has been before observed that the only just origin of civil power is a contract entered into by all the people for that purpose. — If this position be true (and, I dare presume, it is not controverted, at least in this country) right reason will always suggest the expediency of adhering to the essential requisites in forming that contract upon true principles. A cautious people will consider all the inducements to enter into the social state, from the most important object down to the minutest prospect of advantage. Every motive with them will have its due weight. They will not pay a curious attention to trifles and overlook matters of great consequence: — and in pursuing these steps they will provide for the attainment of each point in view with a care — with an earnestness proportionate to its dignity, and according as it involves a greater or a lesser interest. It is evident, therefore that they should attend most diligently to those sacred rights, which they have received with their birth, and which can neither be retained to themselves, nor transmitted to their posterity, unless they are expressly reserved: for it is a maxim, I dare say, universally acknowledged, that when men establish a system of government, in granting the powers therein they are always understood to surrender whatever they do not so expressly reserve. This is obvious from the very design of the civil institution, which is adopted in lieu of the state of natural liberty, wherein each individual, being equally intitled to the enjoyment of all natural rights, and having equally a just authority to exercise full powers of acting, with relation to other individuals, in any manner not injurious to their rights, must, when he enters into society, be presumed to give up all those powers into the hands of the state by submitting his whole conduct to the direction thereof. This being done by every member, it follows, as a regular conclusion, that all such powers, whereof the whole were possessed, so far as they related to each other individually, are of course given up by the mere act of union. If this surrender be made without any reservation, the conclusion is equally plain and regular, that each and all have given up not only those powers, which relate to others, but likewise every claim, which pertained to themselves, as individuals. For the universality of the grant in this case must necessarily include every power of acting, and every claim of possessing or obtaining any thing — except according to the regulations of the state. Now a right being properly defined, "a power or claim established by law, to act, or to possess, or to obtain something from others,"4 every natural right is such power or claim established by the law of nature. Thus, it is manifest, that in a society constituted after this manner, every right whatsoever will be under the power and controul of the civil jurisdiction. This is the leading characteristic of an arbitrary government, and whenever any people establish a system like this, they subject themselves to one, which has not a single property of a free constitution. Hence results the necessity of an express stipulation for all such rights as are intended to be exempted from the civil authority.
Permit me now, my country men, to make a few observations on the proposed Foederal Constitution. In this attempt the subject, as it is arduous and difficult, naturally impresses the modest mind with diffidence: yet being of the last importance, as involving in it the highest interest, that freemen can have — all that is dear and valuable to the citizens of these United States; a consciousness of the strong claim, which this subject has, to a free and general discussion, has prevailed over that discouraging idea so far as to produce the present address to you. This is done with a reliance on that benevolence and liberality of sentiment, with which you have hitherto been actuated. From these benign qualities, it is hoped, the most favorable indulgence will be granted, and that the zeal, with which this is written, will be allowed in some measure an excuse for its defects. However imperfect, therefore this may be, however inadequate to your own ideas, or to the wishes of him, who offers it to your consideration; you are hereby intreated to let the perusal, with which you may think proper to favor it, be serious, candid, dispassionate — as it relates to a common cause, in which all are alike concerned.
Suffer me, then, in the first place to advert to a part of the sixth article in this constitution. It may, perhaps, appear somewhat irregular, to begin with this article, since it is almost the last proposed: yet, if it be considered that this at once defines the extent of Congressional authority, and indisputably fixes its supremacy, every idea of impropriety on this head will probably vanish. The clause alluded to contains the following words, "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; and the judges in every state shall be bound thereby; any thing in the constitution or laws of any state to the contrary, notwithstanding." If this constitution should be adopted, here the sovereignty of America is ascertained and fixed in the foederal body at the same time that it abolishes the present independent sovereignty of each state. Because this government being general, and not confined to any particular part of the continent; but pervading every state and establishing its authority equally in all, its superiority will consequently be recognized in each; and all other powers can operate only in a secondary subordinate degree. For the idea of two sovereignties existing within the same community is a perfect solecism. If they be supposed equal, their operation must be commensurate, and like two mechanical powers of equal momenta counteracting each other; — there the force of the one will be destroyed by the force of the other: and so there will be no efficiency in either. If one be greater than the other, they will be similar to two unequal bodies in motion with a given degree of velocity, and impinging each other from opposite points; — the motion of the lesser in this case will necessarily be destroyed by that of the greater: and so there will be efficiency only in the greater. But what need is there for a mathematical deduction to shew the impropriety of two such distinct co-existing sovereignties? The natural understanding of all mankind perceives the apparent absurdity arising from such a supposition: since, if the word means any thing at all, it must mean that supreme power, which must reside somewhere instate; or, in other terms, it is the united powers of each individual member of the state collected and consolidated into one body. This collection, this union, this supremacy of power can, therefore, exist only in one body. This is obvious to every man: and it has been very properly suggested that under the proposed constitution each state will dwindle into "the insignificance of a town corporate." This certainly will be their utmost consequence; and, as such, they will have no authority to make laws, even for their own private government any farther than the permissive indulgence of Congress may grant them leave. This, Virginians, will be your mighty, your enviable situation after all your struggles for independence! and, if you will take the trouble to examine, you will find that the great, the supereminent authority, with which this instrument of union proposes to invest the foederal body, is to be created without a single check — without a single article of covenant for the preservation of those inestimable rights, which have in all ages been the glory of freemen. It is true, "the United States shall guarantee to every state in this union a republican form of government": yet they do not guarantee to the different states their present forms of government, or the bill of rights thereto annexed, or any of them; and the expressions are too vague, too indefinite to create such a compact by implication. It is possible that a "republican form" of government may be built upon as absolute principles of despotism as any oriental monarchy ever yet possessed. I presume that the liberty of a nation depends, not on planning the frame of government, which consists merely in fixing and delineating the powers thereof; but on prescribing due limits to those powers, and establishing them upon just principles.
It has been held in a northern state by a zealous advocate for this constitution that there is no necessity for "a bill of rights" in the foederal government; although at the same time he acknowledges such necessity to have existed when the constitutions of the separate governments were established. He confesses that in these instances the people "invested their representatives with every power and authority, which they did not in explicit terms reserve": but "in delegating foederal powers," says he, "every thing, which is not given, is reserved." Here is a distinction, I humbly conceive, without a difference, at least in the present enquiry. How far such a discrimination might prevail with respect to the present system of union, it is immaterial to examine: and had the observation been restrained to that alone, perhaps it might be acknowledged to contain some degree of propriety. For under the confederation it is well known that the authority of Congress cannot extend so far as to interfere with, or exercise any kind of coercion on, the powers of legislation in the different states; but the internal police of each is left free, sovereign and independent: so that the liberties of the people being secured as well as the nature of their constitution will admit; and the declaration of rights, which they have laid down as the basis of government, having their full force and energy, any farther stipulation on that head might be unnecessary. But, surely, when this doctrine comes to be applied to the proposed foederal constitution, which is framed with such large and extensive powers, as to transfer the individual sovereignty from each state to the aggregate body, — a constitution, which delegates to Congress an authority to interfere with, and restrain the legislatures of every state — invests them with supreme powers of legislation throughout all the states — annihilates the separate independency of each; and, in short — swallows up and involves in the plenitude of its jurisdiction all other powers whatsoever: — I shall not be taxed with arrogance in declaring such an argument to be fallacious; and insisting on the necessity of a positive unequivocal declaration in favor of the rights of freemen in this case even more strongly than in the case of their separate governments. For it seems to me that when any civil establishment is formed, the more general its influence, the more extensive the powers, with which it is invested, the greater reason there is to take the necessary precaution for securing a due administration, and guarding against unwarrantable abuses.
(To be continued.)
(Continued from our last)
Section 8th of the first article gives the Congress a power "to lay and collect, taxes, duties, imposts and excises." If it be a true maxim that those, who are entrusted with the exercise of the higher powers of government, ought to observe two essential rules: first in having no other view than the general good of all without any regard to private interest; and secondly, to take equal care of the whole body of the community, so as not to favor one part more than another: it is apparent that under the proposed constitution, this general confederated society, made up of thirteen different states, will have very little security for obtaining an observance, either of the one, or of the other, rule. For being different societies, though blended together in legislation, and having as different interests; no uniform rule for the whole seems to be practicable; and hence, it is to be feared, that the general good may be lost in a mutual attention to private views. From the same causes we may lament the probability of losing the advantage of the second rule; for it may be expected, in like manner, that the general care of the whole will be lost by the separate endeavors of different legislators to favor their own states. So long as mankind continues to be influenced by interest, the surest means of effecting an union of counsels in any assembly is by an union of interests. Now, if it be considered that it is this concert, that it is this union in promoting the general good, which alone can preserve concord in this great republic, and secure it success and glory, — unhappy will be the situation of America, if she once precludes the beneficial effects of such a good understanding. Yet, I apprehend that these evils may result in a great measure from an exercise of that branch of legislative authority, which respects internal direct taxation. For in this, it is scarcely probable that the interest, ease or convenience of the several states can be so well consulted in the foederal assembly, as in their own respective legislatures. So different are many species of property, so various the productions, so unequal the profits arising, even from the same species of property, in different states, that no general mode of contribution can well be adopted in such a manner as at once to affect all in an equitable degree. Hence may arise disagreeable objects of contention. A diversity of interests will produce a diversity of schemes. Thus each state, as it is natural, will endeavor to raise a revenue by such means, as may appear least injurious to its own interest: a source of dissention manifestly detrimental to that harmony, which is necessary to support the confederation. I cannot conceive it impracticable to reform the foederal system in such a manner as to ensure a compliance with the necessary requisitions of Congress from the different state legislatures. Then all the several states being left to raise their own share of the revenue, and being the only proper judges of the mode most convenient to themselves, it is highly probable that this important branch of government would be carried on more generally to the satisfaction of each state; and would tend to promote a spirit of concord between all the parts of this great community. Because each being thus accomodated, and participating the advantages of the union, — none subjected to any inconvenience thereby, — all would consequently concur in nourishing an affection for the government, which so cemented them.
I believe, it is acknowledged that the establishment of excises has been one of the greatest grievances, under which the English nation has labored for almost a century and an half. Although this may seem an (economical tax, as arising out of manufactures, from which the industrious may derive advantages; and whereof the wealthy by consuming the greatest share, will of course contribute the largest proportion of the tax: yet the nature of it being such, as requires severe laws for its execution, it has justly become an object of general detestation. This has induced Judge Blackstone to declare that "the rigour and arbitrary proceedings of excise laws seem hardly compatible with the temper of a free nation." While, therefore, you are freemen — while you are unused to feel any other power, but such as can be exercised within the bounds of moderation and decency, it, doubtless, behoves you to consider whether it is an eligible step to subject yourselves to a new species of authority, which may warrant the most flagrant violations of the sacred rights of habitation. If this branch of revenue takes place, all the consequent rigour of excise laws will necessarily be introduced in order to enforce a due collection. On any charges or offence in this instance you wip see yourselves deprived of your boasted trial by jury. The much admired common law process will give way to some quick and summary mode, by which the unhappy defendant will find himself reduced, perhaps to ruin, in less time than a charge could be exhibited against him in the usual course.
It has ever been held that standing armies in times of peace are dangerous to a free country; and no observation seems to contain more reason in it. Besides being useless, as having no object of employment, they are inconvenient and expensive. The soldiery, who are generally composed of the dregs of the people, when disbanded, or unfit for military service, being equally unfit for any other employment, become extremely burthensome. As they are a body of men exempt from the common occupations of social life, having an interest different from the rest of the community, they wanton in the lap of ease and indolence, without feeling the duties, which arise from the political connection, though drawing their subsistence from the bosom of the state. The severity of discipline necessary to be observed reduces them to a degree of slavery; the unconditional submission to the commands of their superiors, to which they are bound, renders them the fit instruments of tyranny and oppression. — Hence they have in all ages afforded striking examples of contributing, more or less, to enslave mankind; — and whoever will take the trouble to examine, will find that by far the greater part of the different nations, who have fallen from the glorious state of liberty, owe their ruin to standing armies. It has been urged that they are necessary to provide against sudden attacks. Would not a well regulated militia, duly trained to discipline, afford ample security? Such, I conceive, to be the best, the surest means of protection, which a free people can have when not actually engaged in war. This kind of defence is attended with two advantages superior to any others; first, when it is necessary to embody an army, they at once form a band of soldiers, whose interests are uniformly the same with those of the whole community, and in whose safety they see involved every thing that is dear to themselves: secondly, if one army is cut off, another may be immediately raised already trained for military service. By a policy, somewhat similar to this, the Roman empire rose to the highest pitch of grandeur and magnificence.
The supreme court is another branch of foederal authority, which wears the aspect of imperial jurisdiction, clad in a dread array, and spreading its wide domain into all parts of the continent. This is to be co-extensive with the legislature, and, like that, is to swallow up all other courts of judicature. — For what is that judicial power which "shall extend to all cases in law and equity" in some having "original," in all others "appellate jurisdiction," but an establishment universal in its operation? And what is that "appellate jurisdiction both as to law and fact," but an establishment, which may in effect operate as original jurisdiction? — Or what is an appeal to enquire into facts after a solemn adjudication in any court below, but a trial de novo? And do not such trials clearly imply an incompetency in the inferior courts to exercise any kind of judicial authority with rectitude? Hence, will not this eventually annihilate their whole jurisdiction? Here is a system of jurisprudence to be erected, no less surprising than it is new and unusual. Here is an innovation, which bears no kind of analogy to any thing, that Englishmen, or Americans, the descendants of Englishmen, have ever yet experienced. Add to all, that this high prerogative court establishes no fundamental rule of proceeding, except that the trial by jury is allowed in some criminal cases. All other cases are left open — and subject "to such regulations as the Congress shall make." — Under these circumstances I beseech you all, as citizens of Virginia, to consider seriously whether you will not endanger the solemn trial by jury, which you have long revered, as a sacred barrier against injustice — which has been established by your ancestors many centuries ago, and transmitted to you, as one of the greatest bulwarks of civil liberty — which you have to this day maintained inviolate: — I beseech you, I say, as members of this commonwealth, to consider whether you will not be in danger of losing this inestimable mode of trial in all those cases, wherein the constitution does not provide for its security. Nay, does not that very provision, which is made, by being confined to a few particular cases, almost imply a total exclusion of the rest? Let it, then, be a reflection deeply impressed on your minds — that if this noble privilege, which by long experience has been found the most exquisite method of determining controversies according to the scale of equal liberty, should once be taken away, it is unknown what new species of trial may be substituted in its room. Perhaps you may be surprised with some strange piece of judicial polity, — some arbitrary method, perhaps confining all trials to the entire decision of the magistracy, and totally excluding the great body of the people from any share in the administration of public justice.
(To be continued)
(Concluded from our last.)
After the most deliberate reflections on this important matter, permit me, my dear countrymen, to declare to you in the most unfeigned manner, that not perceiving any thing in the proposed plan of government, which seems calculated to ensure the happiness of America — I could not, as a fellow-citizen, resist the inclination to impart these sentiments to you. Unmoved by party — rage — unassailed by passion — uninfluenced by any other interest, but the genuine effusion of zeal for this, our common country, I confess to you in the language of sincerity and candor, that after the first reading of this new code, I could not behold it, but with an eye of disapprobation. Unwilling, however, to reject at first sight an object of such high moment, I resolved to distrust the propriety of a construction passed at so early a period. — This led me to peruse it with the utmost diligence I was capable of; and believe me, the foregoing observations have arisen from the fullest conviction that the system involves in it the most dangerous principles; and — so far from exalting the standard of American liberty, I fear indeed that, should it be adopted, this glorious work, which already has cost the lives of many worthy patriots, will ere long be leveled with the dust. Let it not be conjectured from hence that any illiberal conceptions are formed by the writer hereof respecting the intentions of those gentlemen, who have offered this plan of foederal government. He knows no circumstance inducing him to suppose they had any other object in view but the good of their country. — When we contemplate the great — the magnanimous HERO, who has conducted our armies through all the trying vicissitudes of danger and difficulty, — there is no man so disingenuous — there is no man so ungrateful, as to impute any transactions of his to sinister motives. Every true American is well assured that steadiness of virtue — that benignity of soul have the chief rule in all his actions. — Yet every American, and every other person, are satisfied also that there is no infallibility in human nature. — To be man is to be subject to error. The best, the greatest, the wisest are liable to commit mistakes. — Let it be remembered, then, that this code of government is solemnly proposed to every freeman in America. For what? — For the purpose of binding them without their approbation? No. — For an implicit acceptance? No. — For their adoption merely in compliment to the general convention? No. — What then? — Every man's duty to his country points out to him the end of this proposition. Every man knows that it is for a free, a candid, and impartial discussion and determination thereon; whether they will approve and adopt it; or whether they will disapprove and reject it. Can any citizen, therefore, be so weak? can any be so timid? so pusillanimous, as to acknowledge that he has no right to exercise his own judgement with regard to this matter? If there should be any haughty spirits among us, who think that this subject ought to be handled by none but a few persons of eminent characters, let such recollect that the dignity, the importance of their country should inspire sentiments more exalted than the highest characters — sentiments, that should correspond with the worth of America, not with the consequence of any mere individuals. Will you, then, Virginians, arrogate too much by boldly asserting the privilege to judge for yourselves in what so nearly concerns the cause of liberty? No, no, my countrymen, you will not arrogate too much; you will not: I avow it by the souls of those brave patriots, who fought for the same cause in the late war. You will in this affair act as becomes you. The rank, you hold amongst the nations of the earth, requires this of you. And you will forfeit that rank: you will forfeit the character of freemen; and shew that you deserve to be enslaved, if you decline that privilege. The happiness of a multitude of people is certainly the highest advantage, which can be conferred on any society: and if you will contribute a full share of duty to effect this, so shall you obtain a due share of glory. No pomp of character, no sound of names, no distinction of birth — no pre-eminence of any kind, should dispose you to hoodwink your own understandings; and in that state suffer yourselves to be led at the will of any order of men whatsoever. The part you have acted heretofore, — the brave, the noble efforts, you have made, are proof enough of your fortitude, and totally exclude every idea of pusillanimity. Herein you have evinced the highest sense of public virtue: herein you have manifested to the whole world that the cause of liberty has hitherto had the prevailing influence over your hearts. And shall men possessed of these sentiments? shall those valiant defenders of their country, who have not feared to encounter toil and danger in a thousand shapes, who have not startled, even at the prospect of death itself? Shall you, O Virginians; shall you, I say, after exhibiting such bright examples of true patriotic heroism, suddenly become inconsistent with yourselves; and were [fail?] to maintain a privilege so incontestibly your due? — No, my countrymen; — by no means can I conceive that the laudable vigor, which flamed so high in every breast, can have so far evaporated in the space of five years. I doubt not, but you will in this trying instance acquit yourselves in a manner worthy of your former conduct. It is not to be feared that you need the force of persuasion, to exercise a proper freedom of enquiry into the merits of this proposed plan of government: or that you will not pay a due attention to the welfare of that country, for which you have already so bravely exerted yourselves. Of this I am well assured; and do not wonder when imagination presents to my view the idea of a numerous and respectable body of men reasoning on the principles of this foederal constitution. If herein I conceive that you are alarmed at the exceedingly high and extensive authority, which it is intended to establish, I cannot but see the strongest reasons for such apprehensions. For a system, which is to supercede the present different governments of the states, by ordaining that "laws made in pursuance thereof shall be supreme, and shall bind the judges in every state, any thing in the constitution or laws of any state to the contrary notwithstanding," must be alarming indeed! What cannot this omnipotence of power effect? How will your bill of rights avail you any thing? By this authority the Congress can make laws, which shall bind all, repugnant to your present constitution — repugnant to every article of your rights; for they are a part of your constitution, — they are the basis of it. So that if you pass this new constitution, you will have a naked plan of government unlimited in its jurisdiction, which not only expunges your bill of rights by rendering ineffectual, all the state governments; but is proposed without any kind of stipulation for any of those natural rights, the security whereof ought to be the end of all governments. Such a stipulation is so necessary, that it is an absurdity to suppose any civil liberty can exist without it. Because it cannot be alledged in any case whatsoever, that a breach has been committed — that a right has been violated; as there will be no standard to resort to — no criterion to ascertain the breach, or even to find whether there has been any violation at all. Hence it is evident that the most flagrant acts of oppression may be inflicted; yet, still there will be no apparent object injured: there will be no unconstitutional infringement. For instance, if Congress should pass a law that persons charged with capital crimes shall not have a right to demand the cause or nature of the accusation, shall not be confronted with the accusers or witnesses, or call for evidence in their own favor; and a question should arise respecting their authority therein, — can it be said that they have exceeded the limits of their jurisdiction, when that has no limits; when no provision has been made for such a right? — When no responsibility on the part of Congress has been required by the constitution? The same observation may be made on any arbitrary or capricious imprisonments contrary to the law of the land. The same may be made, if excessive bail should be required; if excessive fines should be imposed; if cruel and unusual punishments should be inflicted; if the liberty of the press should be restrained: in a word — if laws should be made totally derogatory to the whole catalogue of rights, which are now secured under your present form of government.
You will, doubtless, consider whether the inconveniences may not be very disagreeable, and perhaps injurious, to which this country may be subjected by excise laws, — by direct taxation of every kind, — by the establishment of foederal courts. You will advert to the dangerous and oppressive consequences, that may ensue from the introduction of standing armies in times of peace; those baneful engines of ambition, against which free nations have always guarded with the greatest degree of caution. You will determine likewise as to the propriety of being excluded from keeping ships of war without the consent of Congress. The situation of these states renders a naval force extremely desirable. Being bounded on one side by the sea, their coasts are accessible to every lawless adventurer: and without ships to guard them, they are subject to continual depredations. The expediency of this species of defence is manifest. The great advantages to be derived from it, — the strength, — the consequence, which it adds to a nation, are such, that every well-wisher to this country would rejoice to see as large a navy established, as the circumstances of the state can at any time admit of. This, therefore, seems to be a very improper restraint upon the states, — a restraint, which may perhaps eventually prove very injurious.
Upon the whole, my fellow-citizens, if you judge this proposed constitution to be eligible or ineligible, you will accordingly instruct your delegates when they are about to meet in convention. The wisdom of the legislature has judged it advisable to fix the time for deciding on this momentous business at the distance of several months, that you may become thoroughly acquainted with a subject, which so nearly concerns your greatest interests.
I know it is a favorite topic with the advocates for the new government — that it will advance the dignity of Congress; and that the energy, which is now wanting in the foederal system, will be hereby rendered efficient. Nobody doubts, but the government of the union is susceptible of amendment. But can any one think that there is no medium between want of power, and the possession of it in an unlimited degree? Between the imbecility of mere recommendatory propositions, and the sweeping jurisdiction of exercising every branch of government over the United States to the greatest extent? Between the present feeble texture of the confcederation, and the proposed nervous ligaments? Is it not possible to strengthen the hands of Congress so far as to enable them to comply with all the exigencies of the union — to regulate the great commercial concerns of the continent, — to superintend all affairs, which relate to the United States in their aggregate capacity, without devolving upon that body the supreme powers of government in all its branches? The original institution of Congressional business, — the nature, the end of that institution evince the practicability of such a reform; and shew that it is more honorable, more glorious — and will be more happy for each American state to retain its independent sovereignty. For what can be more truly great in any country than a number of different states in the full enjoyment of liberty — exercising distinct powers of government; yet associated by one general head, and under the influence of a mild, just and well-organized confederation duly held in equilibria; — whilst all derive those external advantages, which are the great purposes of the union? This separate independency existing in each — this harmony pervading the whole — this due degree of energy in the foederal department, all together, will form a beautiful species of national grandeur. These will add lustre to every member, and spread a glory all around. These will command the admiration of mankind. These will exhibit a bright specimen of real dignity, far superior to that immense devolution of power, under which the sovereignty of each state shall shrink to nothing.
It requires no great degree of knowledge in history to learn what dangerous consequences generally result from large and extensive powers. Every man has a natural propensity to power; and when one degree of it is obtained, that seldom fails to excite a thirst for more: — an higher point being gained, still the soul is impelled to a farther pursuit. Thus step by step, in regular progression, she proceeds onward, until the lust of domination becomes the ruling passion, and absorbs all other desires. When any man puts himself under the influence of such a passion, it is natural for him to seek after every opportunity, and to employ every means within reach, for obtaining his purpose. There is something so exceedingly bewitching in the possession of power that hardly a man can enjoy it, and not be affected after an unusual manner. The pomp of superiority carries with it charms, which operate strongly on the imagination. Nay, it is a melancholy reflection that too often the very disposition itself is transformed, — and for the gratification of ambitious views, the mild, the gentle, humane — the virtuous becomes cruel and violent, losing all sense of honor, probity, humanity and gratitude. — Hence, should it not be amaxim, never to be forgotten — that a free people ought to intrust no set of men with powers, that may be abused without controul, or afford opportunities to designing men to carry dangerous measures into execution, without being responsible for their conduct? And as no human foresight can penetrate so far into future events, as to guard always against the effects of vice, — as the securest governments are seldom secure enough; — is it not the greatest imprudence to adopt a system, which has an apparent tendency to furnish ambitious men with the means of exerting themselves — perhaps to the destruction of American liberty?
It is next to impossible to enslave a people immediately after a firm struggle against oppression, while the sense of past injury is recent and strong. But after some time this impression naturally wears off; — the ardent glow of freedom gradually evaporates; — the charms of popular equality, which arose from the republican plan, insensibly decline; — the pleasures, the advantages derived from the new kind of government grow stale through use. Such declension in all these vigorous springs of action necessarily produces a supineness. The altar of liberty is no longer watched with such attentive assiduity; — a new train of passions succeeds to the empire of the mind; — different objects of desire take place: — and, if the nation happens to enjoy a series of prosperity, voluptuousness, excessive fondness for riches, and luxury gain admission and establish themselves — these produce venality and corruption of every kind, which open a fatal avenue to bribery. Hence it follows, that in the midst of this general contageon a few men — or one — more powerful than all others, industriously endeavor to obtain all authority; and by means of great wealth — or embezzling the public money, — perhaps totally subvert the government, and erect a system of aristocratical or monarchic tyranny in its room. What ready means for this work of evil are numerous standing armies, and the disposition of the great revenue of the United States! Money can purchase soldiers; — soldiers can produce money; and both together can do any thing. It is this depravation of manners, this wicked propensity, my dear countrymen, against which you ought to provide with the utmost degree of prudence and circumspection. All nations pass this parokism of vice at some period or other; — and if at that dangerous juncture your government is not secure upon a solid foundation, and well guarded against the machinations of evil men, the liberties of this country will be lost — perhaps forever!
Let us establish a strong foederal government, which shall render our Congress a great and eminent body, says one. By all means, replies another; and then they will command the attention of all Europe. — Why, pray, what will it avail you in the hour of distress — in the midst of calamity, though all Europe should pay attention to the Congress? What advantage will it be to the citizens of America, should they elevate Congress to the highest degree of grandeur; — should the sound of that grandeur be wafted across the Atlantic, and echoe through every town in Europe? What will the pomp — the splendor of that dignified body profit you, I say, if you place yourselves in a situation, which may terminate in wretchedness? Of what consequence will that state of congressional pre-eminence be to you, or to your posterity, if either the one, or the other should thereby be reduced to a mere herd of —— ? O great GOD, avert that dreadful catastrophe. — Let not the day be permitted to dawn, which shall discover to the world that America remains no longer a free nation! — O let not this last sacred asylum of persecuted liberty cease to afford a resting place for that fair goddess! — Re-animate each spirit, that languishes in this glorious cause! Shine in upon us, and illumine all our counsels! — Suffer thy bright ministers of grace to come down and direct us; — and hovering for awhile on the wings of affection, breathe into our souls true sentiments of wisdom! — that in this awful, this important moment we may be conducted safely through the maze of error; — that a firm basis of national happiness may be established, and flourish in undiminished glory through all succeeding ages!
December 17, 1787.
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