THE ACTION OF THE SEVERAL STATES ON THE CONSTITUTION — DEBATES IN THE SEVERAL STATE CONVENTIONS — COMMENTS THEREON.
MR. STEPHENS. The next step, then, in our inquiry and investigation, will be to look into the action of the several States upon this Constitution, when it was submitted to their Legislatures, by the Congress, as requested by the Convention, and see how it was understood by them, and what construction was put upon it by its supporters and advocates. Whether it was considered by them as a surrender of the Sovereignty of the several States, or simply as a new Constitutional Compact, between the States, upon the same Federal basis, as the former Articles of their Union had been.
We will take them up in their order of ratification. In each case, looking first into the action of the State, and, secondly, into the debates, where any have been preserved, as part of the res gestŠ, showing the understanding of the States, in their ratification, as appears from the record.
The Legislature of the State of Delaware called a Convention of her people to consider the Constitution, and take action upon it, according to the request of Congress. In the Convention of this State, there seems to have been no division and no discussion. At least, none of the debates in that body, if any were had, have been preserved. Here is the action of the Convention.
"We, the Deputies of the People of the Delaware State, in Convention met, having taken into our serious consideration the Federal Constitution, proposed and agreed upon by the Deputies of the United States, in a General Convention, held at the City of Philadelphia, on the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, have approved, assented to, ratified, and confirmed, and by these presents do, in virtue of the power and authority to us given, for and in behalf of ourselves and our constituents, fully, freely, and entirely approve of, assent to, ratify, and confirm, the said Constitution.
"Done in Convention, at Dover, this seventh day of December, in the year aforesaid, and in the year of the Independence of the United States of America, the twelfth."*
* Elliot's Debates, vol. i, p. 319.
In this very act of ratification, we see it styled, by the Sovereign people of Delaware, "The Federal Constitution." Indeed, no one can doubt, for a moment. from the Course of her Delegates, in the Philadelphia Convention, that the People of Delaware understood the Constitution, as they here style it, to be Federal in its character, and that the Sovereignty of the State was still retained.
The next State in order was Pennsylvania. In this, as in the case of Delaware, let us look first into the action of the State and then into the debates, as far as we have them, to see what light they throw upon this action. First, then, the action of the Convention is in these words.
"In the Name of the People of Pennsylvania.
"Be it known unto all men, that we, the Delegates of the people of the Commonwealth of Pennsylvania, in General Convention assembled, have assented to and ratified, and by these presents do, in the name and by the authority of the same people, and for ourselves, assent to and ratify the foregoing Constitution for the United States of America. Done in Convention at Philadelphia, the twelfth day of December, in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States of America the twelfth. In witness whereof, we have hereunto subscribed our names."*
* Elliot's Debates, vol i, p. 319.
No allusion in this is made to the character of the instrument or of the understanding of the members of the Convention of it, farther than their styling it a "Constitution for the United States of America." That is a Constitution for States United, and not for the whole mass of the people of these States in the aggregate. This of itself is quite enough to show that they considered it Federal or Federative in its character!
But we are not left in doubt or to inference on this point. The debates in the Convention of Pennsylvania have been in part preserved. The speeches of Mr. Wilson, at least, who had been in the Federal Convention that framed the Constitution, and who was also in the State Convention that ratified it, we have. These, it is true, are all of these debates that we have, but they throw much light upon the subject.
Mr. Wilson, recollect, was one of the ablest and most zealous of the Nationals in the Federal Convention. But when their plan failed, he, as Hamilton, Morris, King, and Madison, gave the Constitution agreed upon, his warm support. What he said, therefore, in the State Convention, touching the character, or nature of the Constitution, which was finally agreed upon, is entitled to great weight, and particularly all his disclaimers, as to its being a Consolidation of the whole people of the country into one single grand National Republic. Let us, then, in the second place, see what was his judgment of it, as given to the Pennsylvania Convention. In opening the deliberations of that body, he said:*
* Elliot's Debates, vol. ii, p. 418.
"The system proposed, by the late Convention, for the Government of the United States, is now before you. Of that Convention, I had the honor to be a member. As I am the only member of that body, who has the honor to be also a member of this, it may be expected that I should prepare the way for the deliberations of this Assembly, by unfolding the difficulties, which the late Convention was obliged to encounter; by pointing out the end which they proposed to accomplish; and by tracing the general principles which they have adopted for the accomplishment of that end." * * *
"A very important difficulty arose from comparing the extent of the country to be governed, with the kind of Government, which it would be proper to establish in it. It has been an opinion, countenanced by high authority, 'that the natural property of small States is to be governed as a Republic; of middling ones, to be subject to a monarchy; and of large empires, to be swayed by a despotic prince; — and that the consequence is, that, in order to preserve the principles of the established Government, the State must be supported in the extent it has acquired; and that the spirit of the State will alter in proportion as it extends or contracts its limits.' (Montesquieu, b. viii, c. 20.) This opinion seems to be supported, rather than contradicted, by the history of the Governments in the old world. Here, then, the difficulty appeared in full view. On one hand, the United States contain an immense extent of Territory; and, according to the foregoing opinion, a despotic Government is best adapted to that extent. On the other hand, it was well known, that, however the citizens of the United States might with pleasure submit to the legitimate restraints of a Republican Constitution, they would reject with indignation the fetters of despotism. What, then, was to be done? The idea of a Confederate Republic presented itself. This kind of Constitution has been thought to have 'all the internal advantages of a Republican, together with the external force of a monarchical Government.' (Montesquieu, b. ix, c. 1, 2; Paley, 199, 202.)
"Its description is 'a Convention, by which several States agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies that constitute a new one, capable of increasing by means of further association.' (Montesquieu, b. ix, c. 1.) The expanding quality of such Government is peculiarly fitted for the United States, the greatest part of whose territory is yet uncultivated.
"But while this form of Government enables us to surmount the difficulty last mentioned, it conducted us to another of which I am now to take notice. It left us almost without precedent or guide, and, consequently, without the benefit of that instruction which, in many cases, may be derived from the Constitution, and history, and experience, of other nations. Several associations have frequently been called by the name of Confederate States, which have not, in propriety of language, deserved it. The Swiss Cantons are connected only by alliances. The United Netherlands are, indeed, an assemblage of societies; but this assemblage constitutes no new one, and, therefore, it does not correspond with the full definition of a Confederate Republic. The Germanic body is composed of such disproportioned and discordant materials. and its structure is so intricate and complex, that little useful knowledge can be drawn from it. Ancient history discloses, and barely discloses, to our view, some Confederate Republics — the AchŠan League, the Lycian Confederacy, and the Amphictyonic Council. But the facts recorded concerning their Constitutions are so few and general, and their histories are so unmarked and defective, that no satisfactory information can be collected from them, concerning many particular circumstances, from an accurate discernment and comparison of which, alone, legitimate and practical inferences can be made, from one Constitution to another. Besides, the situation and dimension of those Confederacies, and the state of society, manners, and habits, in them, were so different from those of the United States, that the most correct descriptions could have supplied but a very small fund of applicable remark. Thus, in forming this system, we were deprived of many advantages, which the history and experience of other ages and other countries would, in other cases, have afforded us." * *
"To be left without guide or precedent was not the only difficulty in which the Convention was involved, by proposing to their constituents a plan of a Confederated Republic. They found themselves embarrassed with another, of peculiar delicacy and importance. I mean, that of drawing a proper line between the National Government and the Governments of the several States. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of Government is confined, in its operation and effects, within the bounds of a particular State, should be considered its belonging to the Government of that State; whatever object of Government extends, in its operation or effects, beyond the bounds of a particular State, should be considered as belonging to the Government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care. It is only in mathematical science that a line can be described with mathematical precision. But I flatter myself, that, upon the strictest investigation, the enumeration will be found to be safe and unexceptionable, and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature. Particulars under this head will be more properly explained, when we descend to the minute view of the enumeration, which is made in the proposed Constitution.
"After all, it will be necessary that, on a subject so peculiarly delicate as this, much prudence, much candor, much moderation, and much liberality should be exercised and displayed, both by the Federal Government, and by the Governments of the several States. It is to be hoped that those virtues of Government will be exercised and displayed, when we consider that the powers of the Federal Government, and those of the State Governments, are drawn from sources equally pure." * * *
"The United States may adopt any one of four different systems. — They may become consolidated into one Government, in which the separate existence of the States shall be entirely absolved. They may reject any plan of Union or association, and act as separate and unconnected States. They may form two or more Confederacies. They may unite in one Federal Republic. Which of these systems ought to have been formed by the Convention?"
After giving his opinion against the first three, he concludes thus:
"The remaining system which the American States may adopt, is a Union of them under one Confederate Republic. It will not be necessary to employ much time, or many arguments, to show that this is the most eligible system that can be proposed. By adopting this system, the vigor and decision of a wide spreading monarchy, may be joined to the freedom and beneficence of a contracted Republic. The extent of territory, the diversity of climate and soil, the number, and greatness, and connection, of lakes and rivers, with which the United States are intersected, and almost surrounded, — all indicate an enlarged Government to be fit and advantageous for them. * * If those opinions and wishes are as well founded as they have been general, the late Convention were justified in proposing to their constituents one Confederate Republic, as the best system of a National Government for the United States." * * *
In another speech, on 1st December, 1787, as the discussion progressed, he said: "We have heard much about a consolidated Government. I wish the honorable gentleman would condescend to give us a definition of what he meant by it. I think this the more necessary, because I apprehend that the term, in the numerous times it has been used, has not always been used in the same sense. It may be said, and I believe it has been said, that a consolidated Government is such as will absorb and destroy the Governments of the several States. If it is taken in this view, the plan before us is not a consolidated Government, as I showed on a former day, and may, if necessary, show further on some future occasion. On the other hand, if it is meant that the General Government will take from the State Governments their power in some particulars, it is confessed, and evident, that this will be its operation and effect."
Again, on the 4th of December, he said: — "The very manner of introducing this Constitution, by the recognition of the authority of the people, is said to change the principles of the present Confederation, and to introduce a Consolidating and absorbing Government.
"In this Confederated Republic, the Sovereignty of the States, it is said, is not preserved. We are told that there cannot be two Sovereign powers, and that a subordinate Sovereignty is no Sovereignty.
"It will be worth while, Mr. President, to consider this objection at large. When I had the honor of speaking formerly on this subject, I stated, in as concise a manner as possible, the leading ideas that occurred to me, to ascertain where the Supreme and Sovereign power resides. It has not been, nor, I presume, will it be denied, that somewhere there is, and of necessity must be, a Supreme, absolute, and uncontrollable authority. This, I believe, may justly be termed the Sovereign power; for, from that gentleman's (Mr. Findley) account of the matter, it cannot be Sovereign unless it is Supreme; for, says he a subordinate Sovereignty is no Sovereignty at all. I had the honor of observing, that, if the question was asked, where the Supreme power resided, different answers would be given by different writers. I mentioned that Blackstone would tell you that, in Britain, it is lodged in the British Parliament; and I believe there is no writer, on this subject, on the other side of the Atlantic, but supposed it to be vested in that body. I stated, further, that, if the question was asked of some politician, who had not considered the subject with sufficient accuracy, where the Supreme power resided in our Government, he would answer, that it was vested in the State Constitutions. This opinion approaches near the truth, but does not reach it; for the truth is, that the Supreme, absolute, and uncontrollable authority remains with the people. I mentioned, also, that the practical recognition of this truth was reserved for the honor of this country. I recollect no Constitution founded on this principle; but we have witnessed the improvement, and enjoy the happiness of seeing it carried into practice. The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth.
"When I made the observation that some politicians would say the Supreme power was lodged in our State Constitutions, I did not suspect that the honorable gentleman from Westmoreland (Mr. Findley) was included in that description; but I find myself disappointed; for I imagined his opposition would arise from another consideration. His position is, that the Supreme power resides in the States, as Governments; and mine is, that it resides in the people, as the fountain of Government; that the people have not — that the people meant not_ — and _that the people ought not — to part with it to any Government whatsoever_. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two Sovereign powers on the same subject. * * * This, I say, is the inherent and unalienable right of the people; and as an illustration of it, I beg to read a few words from the Declaration of Independence, made by the Representatives of the United States, and recognised by the whole Union.
"'We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of Government becomes destructive of these ends, it is the right of the people to alter, or abolish it, and institute a new Government, laying its foundation on such principles, and organizing its powers in such forms, as to them shall seem most likely to effect their safety and happiness.'
"This is the broad basis on which our Independence was placed: on the same certain and solid foundation this system is erected. * * *
"It is mentioned that this Federal Government will annihilate and absorb all the State Governments. I wish to save, as much as possible, the time of the house; I shall not, therefore, recapitulate what I had the honor of saying last week on this subject. I hope it was then shown that, instead of being abolished (as insinuated), from the very nature of things, and from the organization of the system itself, the State Governments must exist, or the General Government must fall amidst their ruins. Indeed, so far as to the forms, it is admitted they may remain; but the gentlemen seem to think their power will be gone.
"I shall have occasion to take notice of this power hereafter; and, I believe, if it was necessary, it could be shown that the State Governments, as States, will enjoy as much power, and more dignity, happiness, and security, than they have hitherto done. * * * *
"I say, Sir, that it was the design of this system to take some power from the State Governments, and to place it in the General Government. It was also the design that the people should be admitted to the exercise of some powers, which they did not exercise under the present Federation. It was thought proper that the citizens, as well as the States, should be represented. How far the representation in the Senate is a representation of States, we shall see by and by, when we come to consider that branch of the Federal Government.
"This system, it is said, unhinges and eradicates the State Governments, and was systematically intended so to do. To establish the intention, an argument is drawn from Article 1st, Section 4th, on the subject of elections. I have already had occasion to remark upon this, and shall, therefore, pass on to the next objection.
"That the last clause of the 8th Section of the 1st Article, gives the power of Self-preservation to the General Government, independent of the States; for, in case of their abolition, it will be alleged, in behalf of the General Government, that Self-preservation is the first law, and necessary to the exercise of all other powers.
"Now, let us see what this objection amounts to Who are to have this Self-preserving power? The Congress. Who are Congress? It is a body that will consist of a Senate and a House of Representatives. Who compose this Senate? Those who are elected by the Legislature of the different States. Who are the electors of the House of Representatives? Those who are qualified to vote for the most numerous branch of the Legislature in the separate States. Suppose the State Legislatures annihilated; where is the criterion to ascertain the qualification of electors? and unless this be ascertained, they cannot be admitted to vote; if a State Legislature is not elected, there can be no Senate, because the Senators are to be chosen by the Legislatures only.
"This is a plain and simple deduction from the Constitution; and yet the objection is stated as conclusive, upon an agreement expressly drawn from the last clause of this section.
"It is repeated, with confidence, 'that this is not a Federal Government, but a complete one, with Legislative, Executive, and Judicial powers; it is a Consolidating Government.' I have already mentioned the misuse of the term; I wish the gentleman would indulge us with his definition of the word. If, when he says it is a consolidation, he means so far as relates to the general objects of the Union; so far it was intended to be a consolidation, and on such a consolidation, perhaps, our very existence, as a nation, depends. If, on the other hand (as something, which has been said, seems to indicate), he (Mr. Findley) means that it will absorb the Governments of the individual States, — so far is this position from being admitted, that it is unanswerably controverted. * * *
"Sir, I think there is another subject with regard to which this Constitution deserves approbation. I mean the accuracy with which the line is drawn between the lowers of the General Government and those of the particular State Governments. We have heard some general observations, on this subject, from the gentlemen who conduct the opposition. They have asserted that these powers are unlimited and undefined. These words are as easily pronounced as limited and defined.
They have already been answered by my honorable colleague (Mr. M'Kean), therefore I shall not enter into an explanation. But it is not pretended that the line is drawn with mathematical precision; the inaccuracy of language must, to a certain degree, prevent the accomplishment of such. a desire. Whoever views the matter in a true light, will see that the powers are as minutely enumerated and defined as was possible, and will also discover that the general clause, against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted.
"But let us suppose — and this supposition is very easy in the minds of the gentlemen on the other side, — that there is some difficulty in ascertaining where the true line lies. Are we, therefore, thrown into despair? Are disputes between the General Government and the State Governments to be necessarily the consequence of inaccuracy? I hope, sir, they will not be the enemies of each other, or resemble comets in conflicting orbits, mutually operating destruction; but that their motion will be better represented by that of the planetary system. where each part moves harmoniously within its proper sphere, and no injury arises by interference or opposition. Every part, I trust, will be considered as a part of the United States. Can any cause of distrust arise here? Is there any increase of risk? Or, rather, are not the enumerated powers as well defined here, as in the present Articles of Confederation?"
Again, on the 11th December, 1787, he said:
"It is objected to this system, that under it there is no Sovereignty left in the State Governments. I have had occasion to reply to this already; but I should be glad to know at what period the State Governments became possessed of the Supreme power. On the principle on which I found my arguments, — and that is the principle of this Constitution, — the Supreme power resides in the people. * *
"We are next told, by the honorable gentlemen in opposition (as, indeed, we have been from the beginning of the debates in this Convention, to the conclusion of their speeches, yesterday), that this is a Consolidated Government, and will abolish the State Governments.
"Definitions of a Consolidated Government have been called for; the gentlemen gave us what they termed definitions, but it does not seem, to me, at least, that they have, as yet, expressed clear ideas upon that subject. I will endeavor to state their different ideas upon this point. The gentleman from Westmoreland (Mr. Findley), when speaking on this subject, says, that he means, by a consolidation, 'that Government which puts the thirteen States into one.'
"The honorable gentleman from Fayette (Mr. Smilie), gives you this definition: 'What I mean, by a Consolidated Government, is one that will transfer the Sovereignty from the State Governments to the General Government.'
"The honorable member from Cumberland (Mr. Whitehill), instead of giving you a definition, sir, tells you again, that 'it is a Consolidated Government, and we have proved it so.'
"These, I think, sir, are the different descriptions given to us of a Consolidated Government. As to the first, that it is a Consolidated Government, that puts the thirteen United States into one, — if it is meant that the General Government will destroy the Governments of the States, I will admit that such a Government would not suit the people of America. It would be improper
for this Country, because it could not be proportioned to its extent, on the principles of freedom. But that description does not apply to the system before you. This, instead of placing the State Governments in jeopardy, is founded on their existence. On this principle its organization depends; it must stand or fall, as the State Governments are secured or ruined! Therefore, though this may be a very proper description of a Consolidated Government, yet it must be disregarded, as inapplicable to the proposed Constitution. It is not treated with decency when such insinuations are offered against it."*
* Elliot's Debates, vol. ii. pp. 481-82, — 502-503.
So much for the debates in the Pennsylvania Convention. It is to be regretted that no part of these debates has been preserved but the speeches of Mr. Wilson, from which these extracts have been read. From these, however, it abundantly appears that the nature and character of the Government to be instituted under the Constitution of the United States was thoroughly discussed. It appears clearly, that there was strong opposition to many of its features, but, what is of very great importance in our investigation, it is equally clear that Mr. Wilson, and the majority who acted with him in that Convention, held the Constitution to be strictly Federal, and that the Government instituted by it was a Federal Government, or Confederated Republic. Whatever may have been his original views as to a consolidation of the States into one National Republic, he distinctly and frankly avowed that the Constitution which had been agreed upon did not effect that result. He declared further, that according to his understanding of the Constitution, the State Governments, as States under it, would enjoy as much power, and more dignity, happiness, and security, than they had done before. He insisted that no cause of distrust should arise from apprehensions on that score; for the powers of the Federal Government, said he, with emphasis, were as well defined in the Constitution as under the Articles of Confederation. His whole powers seem to have been put forth to demonstrate that it was not a Consolidated Government, as the opponents of it argued that it would be construed to be. He declared that it was not treating the Constitution with decency, to make such insinuations against it. These speeches of Mr. Wilson, without doubt, controlled the majority of the Pennsylvania Convention, who gave the Constitution their sanction. They show clearly what must have been the understanding of the friends and advocates of the Constitution as to its nature, and as to the nature of the Union thereby established, when they styled it, in their ordinance of ratification, "a Constitution for States." These speeches of Mr. Wilson were also extensively published in the newspapers of the day. They were widely circulated in other States, and, Mr. Curtis says, had great influence on the action of other State Conventions.
Let us, however, proceed with the other States. The next in order is New Jersey.
THIRD, NEW JERSEY.
The Legislature of this State called a Convention of her people, to which the Constitution was referred. That Convention came to the following Resolutions and Ordinance.*
* Elliot's Debates, vol. i, p. 320.
"In Convention of the State of New Jersey, (18 December, 1787.)
"Whereas, A Convention of Delegates from the following States, viz.: New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, met at Philadelphia, for the purpose of deliberating on, and forming, a Constitution for the United States of America, — finished their session on the 17th day of September last, and reported to Congress the form which they had agreed upon, in the words following, viz.:
"And whereas, Congress, on the 28th day of September last,
did resolve, 'That the said report, with the Resolutions and letter accompanying the same, be transmitted to the several Legislatures, in order to be submitted to a Convention of Delegates, chosen in each State by the people thereof, in conformity to the resolves of the Convention made and provided in that case;'
"And whereas, The Legislature of this State did, on the 29th day of October last, resolve in the words following, viz.: 'Resolved, unanimously, That it be recommended to such of the inhabitants of this State as are entitled to vote for Representatives in General Assembly, to meet in their respective counties on the fourth Tuesday in November next, at the several places fixed by law for holding the annual elections, to choose three suitable persons to serve as delegates from each county in a State Convention, for the purposes hereinbefore mentioned, and that the same be conducted agreeably to the mode, and conformably with the rules and regulations, prescribed for conducting such elections; —
"'Resolved, unanimously, That the persons so selected to serve in State Convention, do assemble and meet together on the second Tuesday in December next, at Trenton, in the county of Hunterdon, then and there to take into consideration the aforesaid Constitution, and if approved of by them, finally to ratify the same in behalf and on the part of this State, and make report thereof to the United States in Congress assembled, in conformity, with the resolutions thereto annexed.
"'Resolved, That the sheriffs of the respective counties of this State shall be, and they are hereby, required to give as timely notice as may be, by advertisements, to the people of their counties, of the time, place and purpose of holding elections, as aforesaid.'
"And whereas, The Legislature of this State did also, on the 1st day of November last, make and pass the following act, viz.: 'An Act to authorize the people of this State to meet in Convention, deliberate upon, agree to, and ratify, the Constitution of the United States proposed by the late General Convention, — Be it enacted by the Council and General Assembly of this State, and it Is hereby enacted by the authority of the same, That it shall and may be lawful for the people thereof, by their Delegates, to meet in Convention to deliberate upon, and, if approved of by them, to ratify, the Constitution for the United States proposed by the General Convention held at Philadelphia, and every act, matter and clause, therein contained, conformably to the resolutions of the Legislature passed the 29th day of October, 1787, — any law, usage, or custom, to the contrary in any wise notwithstanding;'
"Now be it known, That we, the Delegates of the State of New Jersey, chosen by the people thereof, for the purposes aforesaid, having maturely deliberated on and considered the aforesaid proposed Constitution, do hereby, for and on the behalf of the people of the said State of New Jersey, agree to, ratify, and confirm, the same and every part thereof.
"Done in Convention, by the unanimous consent of the members present, this 18th day of December, in the year of our Lord 1787, and of the independence of the United States of America, the twelfth."
There was no opposition to the Constitution in the Convention of New Jersey. It was unanimously adopted. But the action of the Convention shows how they understood it. They agreed to and ratified it as "a Constitution for the United States of America."
The next State in order is Georgia. Here is her action, embodied in the Ordinance of 2d January, 1788, referred to before.*
* Elliot's Debates, vol. i, p. 323.
"In Convention, Wednesday, January 2d, 1788.
"To all to whom these presents shall come, greeting:
"Whereas, the form of a Constitution for the Government of the United States of America, was, on the 17th day of September, 1787, agreed upon and reported to Congress, by the Deputies of the said United States, convened in Philadelphia, which said Constitution is written in the words following, to wit:
"And whereas, the United States in Congress assembled did, on the 28th day of September, 1787, Resolve, unanimously, 'That the said report, with the resolutions and letter accompanying the same, be transmitted to the several Legislatures, in order to be submitted to a Convention of Delegates chosen in each State by the people thereof, in conformity to the resolves of the Convention made and provided in that case;' —
"And whereas, the Legislature of the State of Georgia did, on the 26th day of October, 1787, in pursuance of the above-recited resolution of Congress, Resolve, That a Convention be elected on the day of the next general election, and in the same manner that representatives are elected; and that the said Convention consist of not more than three members from each county; and that the said Convention should meet at Augusta, on the fourth Tuesday in December then next, and as soon thereafter as convenient, proceed to consider the said report and resolutions, and to adopt or reject any part or the whole thereof;
"Now know ye, that we, the Delegates of the people of the State of Georgia, in Convention met, pursuant to the resolutions of the Legislature aforesaid, having taken into our serious consideration the said Constitution, have assented to, ratified, and adopted, and by these presents do, in virtue of the powers and authority to us given by the people of the said State for that purpose, for and in behalf of ourselves and our constituents, fully and entirely assent to, ratify, and adopt the said Constitution.
"Done in Convention, at Augusta, in the said State, on the 2d day of January, in the year of our Lord, 1788, and of the Independence of the United States the twelfth."
In the Georgia Convention there was no opposing voice. The Constitution was unanimously assented to, ratified, and adopted as "a Constitution for the Government of the United States of America." A Government of States. A Federal Republic.
We come now, Professor, to your State. First, we will look at the words of her ratification. These are as follows:
"In the name of the People of the State of Connecticut. We, the Delegates of the people of said State, in General Convention assembled, pursuant to an Act of the Legislature in October last, have assented to, and ratified, and by these presents do assent to, ratify, and adopt the Constitution reported by the Convention of Delegates in Philadelphia, on the 17th day of September, A. D., 1787, for the United States of America.
"Done in Convention, at Hartford, this 9th day of January, A. D., 1788. In witness whereof, we have hereunto set our hands."*
* Elliot's Debates, vol. i. p. 321.
Connecticut ratified the Constitution as a form of Government for States. This shows the understanding of the Convention so far as these words, used in the ratification, go. But we are not left to bare inference or argument from them. We have seen what Roger Sherman and Oliver Ellsworth, two of the Delegates from this State, had said of the Constitution in their letter to the Governor of the State, on the adjournment of the Federal Convention. In that they stated distinctly, that the Sovereignty of the States was retained.† But besides this we have the debates in the ratifying Convention.
† Ante, p. 154.
Let us look into these, then, in the second place. There were several men of great ability in this Convention, among whom no one was more prominent than Mr. Ellsworth himself. He was afterwards Chief Justice of the Supreme Court of the United States. On him, as at member of the Philadelphia Convention, devolved the part of opening the discussion in the body then assembled, to consider the Constitution. His opening words were as follows:
"MR. PRESIDENT: — It is observable that there is no preface to the proposed Constitution, but it evidently presupposes two things; one is the necessity of a Federal Government; the other is the inefficiency of the old Articles of Confederation."
After going through with a detail of the structure of the Government proposed, he concluded by saying: "The Constitution before us is a complete system of Legislative, Judicial, and Executive power. It was designed to supply the defects of the former system; and I believe, upon a full discussion, it will be found to answer the purposes for which it was designed."*
* Elliot's Debates, vol. ii, p. 185-190.
PROF. NORTON. I always thought that Judge Ellsworth held that the Constitution was not a Federal Compact between the States, but that it established a complete National Government over the whole people of the United States. How is this? Have I been in error on this point? I have certainly seen him quoted to that effect.
MR. STEPHENS. The quotation you refer to, is one that has often been made from one of his speeches in this Convention — about the coercion of laws under the Constitution, instead of the coercion of arms. But no such idea, as you suppose, was intended to be conveyed by the speech, and none such appears in it taken, altogether. It was in reply to objections that the powers delegated by the Constitution were of themselves inconsistent with the nature of a Federal Government. He combated that idea, and maintained that States, by compact, might delegate power to act directly upon their citizens. Here is his speech on that subject:
"But, says the honorable objector, if Congress levies money, they must legislate. I admit it. Two legislative powers, says he, cannot legislate on the same subject in the same place. I ask, why can they not? It is not enough to say they cannot. I wish for some reason. I grant that both cannot legislate upon the same object at the same time, and carry into effect laws which are contrary to each other. But the Constitution excludes every thing of this kind. Each Legislature has its province; their limits may be distinguished. * * * Two several Legislatures have in fact existed, and acted at the same time, and in the same territory. It is in vain to say they cannot exist, when they actually have done it. In the time of the war, we had an army. Who made the laws for the army? By whose authority were offenders tried and executed? Congress. By their authority a man was taken, tried, condemned, and hanged, in this very city. lie belonged to the army; he was a proper subject of military law; he deserted to the enemy; he deserved his fate."*
* Elliot's Debates, vol. ii, p. 196.
In this way he maintained that there would be no change in principle in the operation of laws passed by the Congress, under the Constitution, in levying taxes directly upon the people, from laws that had been passed by the Congress, under the Confederation, in other cases. The great benefit that would flow from the extension,, in the Constitution, of this principle, that had been acted on to a limited extent, under the Confederation, he proceeded to explain with great force, and showed its perfect practicability under a Federal system. The point was the collection of revenues by levies on the people, instead of requisitions on the States. Afterwards comes the part from which the extract you refer to is taken. Here is the whole of it. "Hence, we see," says he, "how necessary, for the Union, is a coercive principle. No man pretends the contrary; we all see and feel this necessity. The only question is, shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out? Where will they end? A necessary consequence of their principles is a war of the States, one against the other. I am for coercion by law — that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce Sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies, but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity. But this legal coercion singles out the guilty individual, and punishes him for breaking the laws of the Union."*
* Elliot's Debates, vol. ii, p. 197.
He was speaking of the great advantage that would result from delegating to the Congress power to pass laws that would operate directly upon the people, and not upon the States in their corporate capacities. This, he maintained, would be a great improvement in the Federal system, especially in the collection of taxes. And he contended further, that it really involved no new principle; that the Congress had, by virtue of the Articles of Confederation, acted upon the same principle, so far as persons in the land and naval forces were concerned. Nothing in this speech is inconsistent with his and Mr. Sherman's joint letter to Governor Huntingdon touching the reserved Sovereignty of the States. Indeed, in this very speech, he says the Constitution does not attempt to coerce Sovereign bodies, States, in their political capacity. There is no trace, in the debates in the Connecticut Convention, of a contrary opinion being entertained. The general doctrine of all the friends of the Constitution in this Convention was, not only that it established a Federal Government, but that the rights of the States were amply secured by it. This was the judgment of Governor Huntingdon, who was a member of the Convention. It was the judgment of Richard Law, who said: "Consider that this General Government rests upon the State Governments for its support. It is like a vast and magnificent bridge, built upon thirteen strong and stately pillars. Now, the rulers, who occupy the bridge, cannot be so beside themselves as to knock away the pillars which support the whole fabric."*
* Elliot's Debates, vol. ii, p. 201.
Oliver Wolcott, he who was afterwards Secretary of the Treasury, and the devoted political friend of Mr. Hamilton, said: "The Constitution effectually secures the States in their several rights. It must secure them, for its own sake; for they are the pillars which uphold the general system. The Senate, a constituent branch of the general Legislature, without whose assent no public act can be made, are appointed by the States, and will secure the rights of the several States." "So well guarded is this Constitution throughout, that it seems impossible that the rights either of the States or of the people should be destroyed."†
† Elliot's Debates, vol. ii, p. 201.
This is quite enough to show what the Convention of Connecticut thought of the Constitution, and hence we see in their ratification they use the same words; they adopt it as a Constitution "for the United States of America.
We now come, Judge, to your State. It is tedious to go through with all these dry, musty records. But it is essential to our investigation; they are the title-deeds of our political inheritance of Constitutional Liberty. From them alone can we arrive at the truth touching the object of our inquiry. I call your special attention, Judge, to the action of your own State in the premises. No better or more conclusive proof could be adduced to establish the fact that Massachusetts, at the time, considered the Union perfected by the Constitution to be a Federal one between States, than her own action on the adoption of it furnishes.
First, the ratification itself. It is in these words: —
"Commonwealth of Massachusetts.
"The Convention having impartially discussed, and fully considered, the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the 25th day of October, last past, — and acknowledging, with grateful hearts, the goodness of the Supreme Ruler of the Universe in affording the people of the United States, in the course of his providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new Constitution, in order 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 themselves and their posterity, — do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America.
"And as it is the opinion of this Convention, that certain amendments and alterations in the said Constitution would remove the fears, and quiet the apprehensions, of many of the good people of this Commonwealth, and more effectually guard against an undue administration of the Federal Government, — the Convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution: —
"I. That it explicitly declare that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised.
"II. That there shall be one representative to every thirty thousand persons, according to the census mentioned in the Constitution, until the whole number of the representatives amounts to two hundred.
"III. That Congress do not exercise the powers vested in them by the 4th Section of the 1st Article, but in cases where a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress, agreeably to the Constitution.
"IV. That Congress do not lay direct taxes but when the moneys arising from the impost and excise are in. sufficient for the public exigencies, nor then until Congress shall have first made a requisition upon the States to assess, levy, and pay, their respective proportions of such requisition, agreeably to the census fixed in the said Constitution, in such way and manner as the Legislatures of the States shall think best; and in such case, if any State shall neglect or refuse to pay its proportion, pursuant to such requisition, then Congress may assess and levy such State's proportion, together with interest thereon at the rate of six per cent. per annum, from the time of payment prescribed in such requisition.
"V. That Congress erect no company of merchants with exclusive advantages of commerce.
"VI. That no person shall be tried for any crime by which he may incur an infamous punishment, or loss of life, until he be first indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces.
"VII. The Supreme Judicial Federal Court shall have no jurisdiction of causes between citizens of different States, unless the matter in dispute, whether it concerns the realty or personalty, be of the value of three thousand dollars at the least; nor shall the Federal Judicial powers extend to any actions between citizens of different States, where the matter in dispute, whether it concerns the realty or personalty, is not of the value of fifteen hundred dollars at least.
"VIII. In civil actions between citizens of different States, every issue of fact, arising in actions at common law, shall be tried by a jury, if the parties, or either of them, request it.
"IX. Congress shall at no time consent that any person, holding an office of trust or profit under the United States, shall accept of a title of nobility, or any other title or office, from any king, prince, or foreign State.
"And the Convention do, in the name and in behalf of the people of this Commonwealth, enjoin it upon their representatives in Congress, at all times, until the alterations and provisions aforesaid have been considered, agreeably to the fifth article of the said Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the said article.
"And that the United States, in Congress assembled, may have due notice of the assent and ratification of the said Constitution by this Convention, it is Resolved, That the assent and ratification aforesaid be engrossed on parchment, together with the recommendation and injunction aforesaid, and with this resolution; and that his Excellency, John Hancock, Esqr., President, and the Hon. William Cushing, Esqr., Vice President of the Convention, transmit the same, countersigned by the Secretary of the Convention, under their hands and seals, to the United States in Congress assembled."*
* Elliot's Debates, vol. i, pp. 322, 323.
Here we see potent words! The instrument is recognized as a new Constitution! New in contradistinction to the old one! That was the Articles of Confederation. It is distinctly declared to be a Compact to form a more perfect Union — a more perfect Union, of course, between the same parties. Those parties were the several States, or the people of the several States, in their Sovereign character. We see it was adopted as "a Constitution for the United States of America" — not, as I have often said, for the whole American people, but for the American States united by the Compact. The Government, we see, was to be Federal. The Supreme Court of the United States is styled "the Supreme Judicial Federal Court." The whole proceedings, from beginning to end, show upon their face Federal action and Federal engagements. The instrument, ratified, was directed to be sent "to the United States in Congress assembled." But this is not all. The Constitution did not pass the Convention of Massachusetts without violent opposition. What was said pro and con is upon record. These sayings, at the time, constitute a part of the res gestŠ, and are to be taken with it, if necessary, for a clearer explanation of the understanding of the Resolutions they came to.
There were great men in that Convention. Men who were the lights of the age in which they lived. Samuel Adams, Fisher Ames, Rufus King, Theophilus Parsons, James Bowdoin, and John Hancock, were there. The questions involved were deemed of the most momentous character. None of greater importance had engaged the attention of Massachusetts' statesmen, since the ever memorable struggles over their Charter. in 1685 and 1774, and which finally ended in the war of the Revolution, and establishment of the complete Independence and Sovereignty of the Commonwealth. By many it was thought, that this Sovereignty would be endangered by the adoption of this new Constitution. At the head of this class was the renowned Samuel Adams. With him, stood conspicuously, Singletary, Bodman, Widgery, Taylor, Mason, and Choate.
They doubtless had in mind the insidious encroachments upon their ancient rights, by the crown of Great Britain, through the instrumentality of a Randolph and Andrews, in 1683-85. The reply of the Deputies of Massachusetts, to the proposition of the crown at that time, was not forgotten. "The civil liberties of New England are part of the inheritance of their fathers; and shall we give that inheritance away? Is it objected that we shall be exposed to greater sufferings? Better suffer than sin. It is better to trust the God of our fathers, than to put confidence in Princes! If we suffer, because we dare not comply with the wills of men against the will of God, we suffer in a good cause, and shall be accounted Martyrs in the next generation, and at the great day! The Deputies consent not, but adhere to their former Bills!"*
* Bancroft, vol. ii, p.. 126, 127.
They did not lose sight of the fact, that these fathers did become Martyrs, and that their self sacrifice was amply vindicated in the Revolution of 1688, and in the re-establishment of their charter. It was also fresh in their minds, how like attempts to despoil them of their Liberties had been made in their own times by George III, in 1774, and how gloriously their resistance to his encroachments had resulted.
We can easily account, therefore, for the apprehension awakened in the breasts of such men upon the presentation of this new Constitution. On its face it did not reserve expressly the Sovereignty of the States, severally, as the old one had done. At first a very large majority of the Convention were decidedly opposed to its adoption. The session lasted for a month lacking two days. The debates have been published by order of the State Legislature and make a volume of themselves.
Secondly, then, let us sample these debates to see the prevailing sentiments on both sides.
Mr. Shurtliff. "The Convention says, they aimed at a consolidation of the Union."
Mr. Parsons. "The distinction is between a consolidation of the States and a consolidation of the Union."
Mr. Jones, of Boston. "The word consolidation has different ideas — as different metals melted into one mass, two twigs tied into one bundle."*
* Debates, published by order of the State, p. 316.
Mr. Ames. "The Senators will represent the Sovereignty of the States. The Representatives are to represent the people."†
† Elliot's Debates, vol. ii, p. 11.
Mr. Gore. "The Senate represents the Sovereignty of the States," etc.‡
‡ Elliot's Debates, vol. ii, p. 18.
Mr. Ames again observed, "that an objection was made against the Constitution, because the Senators are to be chosen for six years. It has been said, that they will be removed too far from the control of the people, and that, to keep them in proper dependence, they should be chosen annually. It is necessary to premise, that no argument against the new plan has made a deeper impression than this, that it will produce a consolidation of the States. This is an effect which all good men will deprecate. For it is obvious, that, if the State powers are to be destroyed, the representation is too small. The trust, in that case, would be too great to be confided to so few persons. The objects of Legislation would be so multiplied and complicated, that the Government would be unwieldy and impracticable. The State Governments are essential parts of the system, and the defence of this article is drawn from its tendency to their preservation. The Senators represent the Sovereignty of the States; in the other House, individuals are represented. The Senate may not originate bills. It need not be said that they are principally to direct the affairs of wars and treaties. They are in the quality of ambassadors of the States, and it will not be denied that some permanency in their office is necessary to a discharge of their duty. Now, if they were chosen yearly, how could they perform their trust? If they would be brought by that means more immediately under the influence of the people, then they will represent the State Legislatures less, and become the representatives of individuals. This belongs to the other House. The absurdity of this, and its repugnancy to the Federal principles of the Constitution, will appear more fully, by supposing that they are to be chosen by the people at large. If there is any force in the objection to this article, this would be proper. But whom, in that case, would they represent? — Not the Legislatures of the States, but the people. This would totally obliterate the Federal features of the Constitution. What would become of the State Governments, and on whom would devolve the duty of defending them against the encroachments of the Federal Government? A consolidation of the States would ensue, which, it is conceded, would subvert the new Constitution, and against which this very article, so much condemned, is our best security. Too much provision cannot be made against a consolidation. The State Governments represent the wishes, and feelings, and local interests, of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.
"A very effectual check upon the power of the Senate is provided. A third part is to retire from office every two years. By this means, while the Senators are seated for six years, they are admonished of their responsibility to the State Legislatures. If one third new members are introduced, who feel the sentiments of their States, they will awe that third whose term will be near expiring. This article seems to be an excellence of the Constitution, and affords just ground to believe that it will be, in practice as in theory, a Federal Republic."*
* Elliot's Debates, vol. ii, p. 45 et seq. Debates published by order of Massachusetts Legislature, pp. 144, 14.5.
Mr. Bodman (in speaking of the clause conferring the general powers of the Congress in levying and collecting taxes, etc.,) remarked, "It had been said that the Sovereignty of the States remains with them. He thought this section endangered that Sovereignty, and the powers in that section ought to have been more clearly defined, as to the right or power of the Government to use force in collecting the taxes, etc."†
† Mass. Debates, p. 159.
Mr. Singletary "Thought that no more power could be given to a despot than to give up the purse strings of the people."‡
‡ Mass. Debates, p. 159.
Mr. Choate. "Gentlemen say this section (8th, giving general powers to Congress) is as clear as the sun, and that all power is retained that is not given. But where is the Bill of Rights, which shall check the power of Congress; which shall say, thus far shall ye come, and no farther."*
* Mass. Debates, p. 180.
Mr. Porter asked "If a better rule of yielding power could be shown than in the Constitution; for what we do not give," said he, "we retain."†
† Mass. Debates, p. 159.
Mr. Sumner. "But some gentlemen object further and say the delegation of these great powers will destroy the State Legislatures; but, I trust, this never can take place, for the General Government depends on the State Legislatures for its very existence. The President is to be chosen by Electors, under the Regulations of the State Legislatures. The Senate is to be chosen by the State Legislatures, and the Representative body by the people, under like Regulations of the Legislative body in the different States. If gentlemen consider this, they will, I presume, alter their opinion; for nothing is clearer than that the existence of the Legislatures in the different States, is essential to the very being of the General Government. I hope, sir, we shall all see the necessity of a Federal Government, and not make objections unless they appear to us to be of some weight."‡
‡ Mass. Debates, p. 162.
Mr. Parsons, after speaking of the several kinds of Government, said, "The Federal Constitution establishes a Government of the last description, and, in this case, the people divest themselves of nothing! The Government. and the powers which the Congress can administer, are the mere result of a Compact, etc. * * *
"But if gentlemen will still insist that these powers are a grant from the people, and, consequently, improper, let it be observed that it is now too late to impede the grant. It is already completed. The Congress, under the Confederation, are already invested with it by solemn Compact. They have power to demand what moneys and forces they judge necessary, for the common defence, and general welfare. Powers as extensive as those proposed in this Constitution. * * *
"It has been objected that we have no Bill of Rights. If gentlemen, who make this objection, would consider what are the supposed inconveniences resulting from a want of a declaration of rights, I think they would soon satisfy themselves that the objection has no weight. Is there a single natural right that we enjoy uncontrolled by our own Legislature, that Congress can infringe? Not one! Is there a single political right secured to us, by our Constitution, against the attempts of our own Legislature, which we are deprived of in this Constitution? Not one that I can recollect."*
* Mass. Debates, p. 199.
Mr. Rufus King (who had been in the Philadelphia Convention and who was, while the question was open, for a National Government proper instead of a Federal one) said:
"To conclude, sir, if we mean to support an efficient Federal Government, which, under the old Confederation, can never be the case, the proposed Constitution is, in my opinion, the only one that can be substituted."†
† Elliot's Debates, vol. ii, p. 57.
It was on the 30th of January, after the Convention had been in session for three weeks, and after it was well ascertained that the Constitution could not get the approval of a majority of that body without some declaration accompanying it setting forth the understanding with which it was adopted, that John Hancock, the President, left the chair and offered his proposition, which was, in substance, for its adoption in the form in which it stands.
After this proposition was so brought forward, the venerable Samuel Adams, and quite a number with him, yielded their former opposition. He expressed himself thus: —
"As your Excellency was pleased yesterday to offer, for the consideration of this Convention, certain propositions intended to accompany the ratification of the Constitution before us, I did myself the honor to bring them forward by a regular motion, not only from the respect due your Excellency, but from a clear conviction, in my own mind, that they would tend to effect the salutary and important purposes which you had in view — 'the removing the fears and quieting the apprehensions of many of the good people of this Commonwealth, and the more effectually guarding against an undue administration of the Federal Government.'
"I beg leave, sir, more particularly to consider those propositions, and, in a very few words, to express my own opinion, that they must have a strong tendency to ease the minds of gentlemen who wish for the immediate operation of some essential parts of the proposed Constitution, as well as the most speedy and effectual means of obtaining alterations in some other parts of it, which they are solicitous should be made. I will not repeat the reasons I offered when the motion was made, which convinced me that the measure now under consideration will have a more speedy, as well as a more certain influence, in effecting the purpose last mentioned, than the measure proposed in the Constitution before us.
"Your Excellency's first proposition is, 'that it be explicitly declared, that all powers not expressly delegated to Congress are reserved to the several States, to be by them exercised.' This appears, to my mind, to be a summary of a bill of rights, which gentlemen are anxious to obtain. It removes a doubt which many have entertained respecting the matter, and gives assurance that, if any law made by the Federal Government shall be extended beyond the power granted by the proposed Constitution and inconsistent with the Constitution of this State, it will be an error, and adjudged by the courts of law to be void. It is consonant with the second article in the present Confederation, 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. I have long considered the watchfulness of the people over the conduct of their rulers the strongest guard against the encroachments of power; and I hope the people of this country will always be thus watchful."*
* Elliot's Debates, vol. ii, pp. 130, 131.
Amongst others, Fisher Ames followed, in a speech of some length, in which he said:
"There was not any Government, which he knew to subsist, or which he had ever heard of, that would bear a comparison with the new Constitution. Considered merely as a literary performance, it was an honor to our country: Legislators have at length condescended to speak the language of philosophy; and, if we adopt it, we shall demonstrate to the sneering world, who deride liberty, because they have lost it, that the principles of our Government are as free as the spirit of our people.
"I repeat it, our debates have been profitable, because, Upon every leading point, we are at last agreed. Very few among us now deny that a Federal Government is necessary to save us from ruin; that the Confederation is not that Government; and that the proposed Constitution, connected with the amendments, is worthy of being adopted. The question recurs, Will the amendments prevail, and become part of the system? In order to obtain such a system, as the Constitution and the amendments, there are but three ways of proceeding — to reject the whole, and begin anew; to adopt this plan, upon condition that the amendments be inserted into it or to adopt his Excellency's proposition."*
* Elliot's Debates, Massachusetts Convention, vol. ii, pp. 155, 156.
President Hancock concluded the debate. "I give my assent," said he, "to the Constitution, in full confidence that the amendments proposed will soon become a part of the system. These amendments, being no wise local, but calculated to give security and ease alike to all the States, I think that all will agree to them."
The Constitution was then ratified, as we have seen, by only nineteen majority. The whole number of the Convention was three hundred and fifty-five. Governor Hancock, in his message to the Legislature, 27th February, 1788, communicating the action of the Convention, said:
"The objects of the proposed Constitution are, defence against external enemies, and the promotion of tranquillity and happiness amongst the States. * * *
"The amendments proposed by the Convention are intended to obtain a Constitutional security of the principles to which they refer themselves, and must meet the wishes of all the States. I feel myself assured, that they will very early become a part of the Constitution, and when they shall be added to the proposed plan, I shall consider it the most perfect system of Government, as to the objects it embraces, that has been known amongst mankind."†
† Massachusetts Debates, published by order of the Legislature.
With this record in hand, who can doubt as to how
Massachusetts understood what she was doing? Is it not clear, beyond question, that she ratified the new Constitution in place of the old? That she considered it a Compact, between States, as much as the Articles of Confederation? Was there a single supporter or advocate of it in the Convention, who did not hold it to be strictly Federal in its character? Did they not all understand its great object to be, as Governor Hancock said, defence against foreign enemies, and the promotion of tranquillity and happiness amongst States? Were not all their apprehensions quieted by the early adoption of their first great amendment, and nearly all the rest? Can there be a reasonable doubt on the question?
But we will proceed to the next State in order.
The action of the State of Maryland is recorded in these words:
"In Convention of the Delegates, of the people of the State of Maryland, April 28, 1788.
"We, the Delegates of the people of the State of Maryland, having fully considered the Constitution of the United States of America, reported to Congress, by the Convention of Deputies, from the United States of America, held in Philadelphia, on the 17th day of September, in the year 1787, of which the annexed is a copy, and submitted to us by a resolution of the General Assembly of Maryland, in November Session, 1787, do, for ourselves, and in the name, and on behalf of the people of this State, assent to, and ratify the said Constitution.
"In witness whereof, we have hereunto subscribed our names."*
* Elliot's Debates, vol. i, p. 324.
In this State there was no material division of sentiment. There was little or no discussion. The vote on it was sixty-three to eleven.* It was simply assented to, and ratified as the "Constitution of the United States of America." The Convention of Maryland styled it a Constitution of States.
* Elliot's Debates, vol. ii, p. 549.
EIGHTH, SOUTH CAROLINA.
The next State, in order, is South Carolina. First, as to the action of her Convention. That is set forth in these words:
"In Convention of the people of the State of South Carolina, by their representatives, held in the City of Charleston, on Monday, the 12th day of May, and continued by divers adjournments to Friday, the 23d day of May, Anno Domini, 1788, and in the twelfth year of the Independence of the United States of America.
"The Convention, having maturely considered the Constitution, or form of Government, reported to Congress by the Convention of Delegates from the United States of America, and submitted to them by a resolution of the Legislature of this State, passed the 17th and 18th days of February last, in order 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 the people of the said United States, and their posterity, — Do, in the name and behalf of the people of this State, hereby assent to and ratify the said Constitution.
"Done in Convention, the 23d day of May, in the year of our Lord, 1788, and of the Independence of the United States of America the twelfth.
"And whereas, it is essential to the preservation of the rights reserved to the several States, and the freedom of the people, under the operations of a General Government, that the right of prescribing the manner, time, and places of holding the elections to the Federal Legislature, should be forever inseparably annexed to the Sovereignty of the several States, — This Convention doth declare, that the same ought to remain, to all posterity, a perpetual and fundamental right in the local, exclusive of the interference of the General Government, except in cases where the Legislatures of the States shall refuse or neglect to perform and fulfil the same, according to the tenure of the said Constitution. This Convention doth also declare, that no section or paragraph of the said Constitution warrants a construction, that the States do not retain every power not expressly relinquished by them, and vested in the General Government of the Union.
"Resolved, That the General Government of the United States ought never to impose direct taxes, but where the moneys arising from the duties, imposts, and excise, are insufficient for the public exigencies, nor then until Congress shall have made a requisition upon the States to assess, levy, and pay, their respective proportions of such requisitions; and in case any State shall neglect or refuse to pay its proportion, pursuant to such requisition, then Congress may assess and levy such State's proportion, together with interest thereon, at the rate of six per centum per annum, from the time of payment prescribed by such requisition.
"Resolved, That the third section of the sixth article ought to be amended by inserting the word 'other' between the words 'no' and 'religious.'
"Resolved, That it be a standing instruction to all such Delegates as may hereafter be elected to represent this State in the General Government, to exert their utmost abilities and influence to effect an alteration of the Constitution, conformably to the aforegoing resolutions.
"Done in Convention, the 23d day of May, in the year of our Lord, 1788, and of the Independence of the United States of America the twelfth."*
* Elliot's Debates, vol. i, p. 325.
In these proceedings we see, clearly, that the under standing was that the Constitution was Federal in its character. The Congress is styled "The Federal Legislature," and, in the accompanying paper, proposing amendments, the reserved Sovereignty of the several States is mentioned as a matter understood, and an express declaration that the Constitution had been assented to and ratified, with the understanding that no section or paragraph of the Constitution warranted a construction that the States did not retain every power not expressly relinquished by them. This was in the nature of a Protocol, which went up with the paper, forever fixing the understanding of the State, with which she had entered into the Compact, and the understanding with which her ratification was accepted by the other States.
Secondly, let us look into the debates. Very few speeches, made in this Convention, have been preserved. No one disputed the character of the Government. The speeches related, mostly, to particular powers delegated. From one of them we perceive, however, that there was spirited opposition made by a respectable minority. This was headed by Patrick Dollard, of Prince Fredericks. He said, "My constituents are highly alarmed at the large and rapid strides which this new Government has taken towards despotism. They say it is big with political mischiefs, and pregnant with a greater variety of impending woes to the good people of the Southern States, especially South Carolina, than all the plagues supposed to issue from the poisonous box of Pandora!"*
* Elliot's Debates, vol. iv, p. 337.
On the question of ratification, the vote stood 149 to 73.
The most important debate in South Carolina, on the Constitution, was in the Legislature, on the proposition to call a Convention to take it into consideration. In this body, as in the Convention, there was a respectable and spirited minority against the Constitution, though the call for a Convention was unanimous. In the debate on that question, Hon. Rawlins Lowndes concluded his speech by saying "He wished for no other epitaph, than to have inscribed on his tomb, 'Here lies the man that opposed the Constitution, because it was ruinous to the liberty of America!'"†
† Elliot's Debates, vol. iv, p. 311.
These apprehensions and forebodings were, doubtless, awakened by the utterance of such sentiments as those which fell from General Pinckney, in this discussion, which Judge Story quotes. He did maintain that the States, severally, were never Sovereign, but in this position he was not sustained, either by the Legislature, or the Convention, as we have seen by the Protocol of the latter.
NINTH, NEW HAMPSHIRE.
The next State, in order, is New Hampshire. Her action is set forth in the following words:
"In Convention of the Delegates of the People of the State of New Hampshire, June the 21st, 1788.
"The Convention, having impartially discussed and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America, and submitted to us by a resolution of the General Court of said State, passed the 14th day of December last past, and acknowledging, with grateful hearts, the goodness of the Supreme Ruler of the Universe in affording the people of the United States, in the course of His providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new Constitution, in, order 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 themselves and their posterity, — Do, in the name and behalf of the people of the State of New Hampshire, assent to and ratify the said Constitution for the United States of America. And as it is the opinion of this Convention, that certain amendments and alterations, in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this State, and more effectually guard against an undue administration of the Federal Government, — The Convention do, therefore, recommend that the following alterations and provisions be introduced in the said Constitution: —
"I. That it be explicitly declared that all powers not expressly and particularly delegated by the aforesaid Constitution, are reserved to the several States, to be by them exercised.
"II. That there shall be one representative to every thirty thousand persons, according to the census mentioned in the Constitution, until the whole number of representatives amount to two hundred.
"III. That Congress do not exercise the powers vested in them, by the fourth section of the first article, but in cases when a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress; nor shall Congress in any case make regulations contrary to a free and equal representation.
"IV. That Congress do not lay direct taxes, but when the moneys arising from impost, excise, and their other resources, are insufficient for the public exigencies; nor then, until Congress shall have first made a requisition upon the States to assess, levy, and pay, their respective proportions of such requisition, agreeably to the census fixed in the said Constitution, in such way and manner as the Legislature of the State shall think best; and in such case, if any State shall neglect, then Congress may assess and levy such State's proportion, together with the interest thereon, at the rate of six per cent. per annum, from the time of payment prescribed in such requisition.
"V. That Congress shall erect no company of merchants with exclusive advantages of commerce.
"VI. That no person shall be tried for any crime, by which he may incur an infamous punishment, or loss of life, until he first be indicted by a grand jury, except in such cases as may arise in the Government and regulation of the land and naval forces.
"VII. All common-law cases, between citizens of different States, shall be commenced in the common law courts of the respective States; and no appeal shall be allowed to the Federal court, in such cases, unless the sum or value of the thing in controversy amount to three thousand dollars.
"VIII. In civil actions, between citizens of different States, every issue of fact, arising in actions at common law, shall be tried by jury, if the parties, or either of them, request it.
"IX. Congress shall at no time consent that any per. son, holding an office of trust or profit under the United States, shall accept any title of nobility, or any other title or office, from any king, prince, or foreign State.
"X. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; nor shall soldiers, in time of peace, be quartered upon private houses, without the consent of the owners.
"XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
"XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.
"And the Convention do, in the name and in behalf of the people of this State, enjoin it upon their representatives in Congress, at all times, until the alterations and provisions aforesaid have been considered, agreeably to the fifth article of the said Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the article.
"And that the United States, in Congress assembled, may have due notice of the assent and ratification of tile said Constitution by this Convention, it is Resolved, That the assent and ratification aforesaid be engrossed on parchment, together with the recommendation and injunction aforesaid, and with this resolution; and that John Sullivan, Esqr., President of the Convention, and John Langdon, Esqr., President of the State, transmit the same, countersigned by the Secretary of Convention, and the Secretary of State, under their hands and seals, to the United States in Congress assembled."*.
* Elliot's Debates, vol. i, pp. 325-327.
New Hampshire followed the precedent of Massachusetts, and adopted her form of proceedings throughout, in almost the same words. No farther comment is necessary on these. What has just been said on the Massachusetts ratification is applicable with all its force to that of New Hampshire. But one speech, made in the Convention of this State, has been preserved, and that throws no light upon the object of our inquiry. The action of the Convention, however, abundantly shows that the new Constitution was understood to be Federal in its character as the old one was.
We come now to Virginia, the mother of States, as she has properly been called.
First, we will look into her action, then into the debates.
The words of her ratification are as follows: —
"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 department 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. With these impressions, with a solemn appeal to the Searcher of all hearts for the purity of our intentions, and under the conviction that whatsoever imperfections may exist in the Constitution ought rather to be examined in the mode. prescribed therein, than to bring the Union into danger by a delay with a hope of obtaining amendments previous to the ratifications, — We, the said Delegates, in the name and in behalf of the people of Virginia, do, by these presents, assent to and ratify the Constitution recommended, on the 17th day of September, 1787, by the Federal Convention, for the Government of the United States, hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said people, according to an authentic copy hereto annexed, in the words following.
"Done in Convention, this 26th day of June, 1788."*
* Elliot's Debates, vol. i, p. 327.
The language here used by the Convention of Virginia, in her adoption of the Constitution, styles the instrument a Constitution "for the Government of the United States." The form of expression is the same as that used by Georgia. The meaning is the same in both. It was to be a Constitution for the Government of States in their foreign and inter State affairs. It is to be noted that the Virginia Convention expressly declare and make known that the powers granted under it may be resumed by them whensoever they may be perverted to their injury.
JUDGE BYNUM. The language is, that the powers granted under it being derived from the people of the )_United States_, may be resumed by them. How does that mean that the people of Virginia can resume these powers by themselves?
Mr. STEPHENS. The meaning of the people of the United States here, is, the people of the States severally. This is clear. The delegation of the powers was by the States severally. Whoever delegates can resume. The right to resume or recall attends all delegations of all sorts. Where there is a separate or several delegation there cannot be a joint resumption. The resumption must be by the party making the delegation. But the debates in the Convention remove all doubts as to their understanding upon this point. These are the res gestŠ that fully explain it.
Secondly, then, let us look into the debates.
In Virginia, as in Massachusetts, the Constitution underwent a thorough discussion. The Convention was in session nearly a month. Many of the ablest men of the State were members of it. Men who had first put the ball of the Revolution in motion. Patrick Henry was there. George Mason, Bushrod Washington, Henry Lee of Westmoreland, George Nicholas, Edmund Pendleton, Edmund Randolph, James Monroe, James Madison, and John Marshall. A brighter galaxy of talent, statesmanship and oratory was never assembled in the Old Dominion. The debates fill a large volume by themselves. Here it is. Let us glean from these discussions the leading ideas of the advocates as well as the opponents of the Constitution on the main point of our inquiry, that is, the nature and character of the Government instituted by it. As in Massachusetts, so in Virginia, the opposition was able and formidable. The greatest orator of the age headed it.
"This proposal of altering our Federal Government," said Patrick Henry, "is of a most alarming nature! Make the best of this new Government — say it is composed by any thing but inspiration — you ought to be extremely cautious, watchful, jealous of your liberty; for, instead of securing your rights, you may lose them forever." * *
"I have the highest veneration for those gentlemen: but, sir, give me leave to demand, What right had they to say, 'We, the people?' My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, who authorized them to speak the language of; 'We, the people,' instead of, 'We, the States?' States are the characteristics and the soul of a Confederation! if the States be not the agents of this Compact, it must be one great, consolidated, National Government, of all tho States!"*
* Elliot's Debates, vol. iii, pp 21-22.
Edmund Pendleton, President of the Convention, answered: "'We, the people,' possessing all power, form a Government, such as we think will secure happiness: and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss No, but, say gentlemen, we have put the introduction of that method in the hands of our servants, who will interrupt it from motives of self-interest. What then? We will resist, did my friend say? conveying an idea of force. Who shall dare to resist the people? No, we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse." * * *
"This is the only Government founded in real Compact.
There is no quarrel between Government and liberty; the former is the shield and protector of the latter."*
* Elliot's Debates, vol. iii, p. 37.
"This Constitution is said to have beautiful features," said Mr. Henry, subsequently, "but, when I come to examine these features, sir, they appear to me horribly frightful! Among other deformities, it has an awful squinting; it squints towards monarchy; and does not this raise indignation in the breast of every true American?"†
† Elliot's Debates, vol. iii, p. 58.
"We are told," said he, "that this Government, collectively taken, is without an example; that it is National in this part, and Federal in that part, etc. We may be amused, if we please, by a treatise of political anatomy. In the brain it is National; the stamina are Federal; some limbs are Federal, others National. The Senators are voted for by the State Legislatures; so far it is Federal. Individuals choose the Members of the first branch; here it is National. It is Federal in conferring general powers, but National in retaining them. It is not to be supported by the States; the pockets of individuals are to be searched for its maintenance. What signifies it to me that you have the most curious anatomical description of it in its creation? To all the common purposes of legislation, it is a great Consolidation of Government. You are not to have the right to legislate in any but trivial cases; you are not to touch private contracts; you are not to have the right of having arms in your own defence; you cannot be trusted with dealing out justice between man and man. What shall the States have to do? Take care of the poor, repair and make highways, erect bridges, and so on, and so on? Abolish the State. Legislatures at once. What purposes should they be continued for? Our Legislature will, indeed, be a ludicrous spectacle — one hundred and eighty men marching in solemn, farcical procession, exhibiting a mournful proof of the lost liberty of their country, without the power of restoring it. But, sir, we have the consolation that it is a mixed Government; that is, it may work sorely on your neck, but you will have some comfort by saying, that it was a Federal Government in its origin.
"I beg gentlemen to consider: lay aside your prejudices. Is this a Federal Government? Is it not a consolidated Government for almost every purpose? Is the Government of Virginia a State Government after this Government is adopted? I grant that it is a republican Government, but for what purposes? For such trivial domestic considerations as render it unworthy the name of a Legislature. I shall take leave of this political anatomy, by observing that it is the most extraordinary that ever entered into the imagination of man. If our political diseases demand a cure, this is an unheard-of medicine. The honorable member, I am convinced, wanted a name for it. Were your health in danger, would you take new medicine? I need not make use of these exclamations; for every member in this committee must be alarmed at making new and unusual experiments in Government."*
* Elliot's Debates, vol. iii, pp. 171-172.
Mr. Lee answered: "But, sir, this is a Consolidated Government, he tells us; and most feelingly does he dwell on the imaginary dangers of this pretended Consolidation. I did suppose that an honorable gentleman, whom I do not now see (Mr. Madison), had placed this in such a clear light that every man would have been satisfied with it.
"If this were a consolidated Government, ought it not to be ratified by a majority of the people as individuals, and not as States? Suppose Virginia, Connecticut, Massachusetts, and Pennsylvania, had ratified it; these four States, being a majority of the people of America, would, by their adoption, have made it binding on all the States, had this been a Consolidated Government. But it is only the Governments of those seven States who have adopted it. If the honorable gentleman — will attend to this, we shall hear no more of Consolidation." * * *
"I say, that this new system shows, in stronger terms than words could declare, that the liberties of the people are secure. It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated in that paper. When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed: Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary. and unconstitutional. Candor must confess that it is infinitely more attentive to the liberties of the people than any State Government.
"[Mr. Lee then said, that, under the State Governments, the people reserved to themselves certain enumerated rights, and that the rest were vested in their rulers; that, consequently, the powers reserved to the people were but an inconsiderable exception from what were given to their rulers; but that, in the Federal Government, the rulers of the people were vested with certain defined powers, and that what were not delegated to those rulers were retained by the people. The consequence of this, he said, was, that the limited powers were only an exception to those which rested in the people, and that they knew what they had given up, and could be in no danger. He exemplified the proposition in a familiar manner. He observed, that, if a man delegated certain powers to an agent, it would be an insult upon common sense to suppose that the agent could legally transact any business for his principal which was not contained in the commission whereby the powers were delegated; but that if a man empowered his representative or agent to transact all his business except certain enumerated parts, the clear result was, that the agent could lawfully transact every possible part of his principal's business, except the enumerated parts; and added, that these plain propositions were sufficient to demonstrate the inutility and folly (were he permitted to use the expression) of bills of rights.]"*
* Elliot's Debates, vol. iii, p. 186.
Governor Randolph, who had favored a National Government in the Convention, replied as follows: "The liberty of the press is supposed to be in danger. If this were the case, it would produce extreme repugnancy in my mind. If it ever will be suppressed in this country, the liberty of the people will not be far from being sacrificed. Where is the danger of it? He says that every power is given to the General Government that is not reserved to the States. Pardon me if I say the reverse of the proposition is true. I defy any one to prove the contrary. Every power not given it by this system is left with the States."†
† Elliot's Debates, vol. iii, p. 203.
John Marshall (afterwards Chief Justice), in reply to Mr. Henry, said: "We are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim, that those who give may take away. It is the people that give power, and can take it back. What shall restrain them? They are the masters who give it, and of whom their servants hold it."‡
‡ Elliot's Debates, vol. iii, p. 233.
George Nicholas said: "But it is objected to for want of a bill of rights. It is a principle universally agreed upon, that all powers not given are retained. Where, by the Constitution, the General Government has general powers for any purpose, its powers are absolute. Where it has powers with some exceptions, they are absolute only as to those exceptions. In either case, the people retain what is not conferred on the General Government, as it is by their positive grant that it has any of its powers. In England, in all disputes between the king and people, recurrence is had to the enumerated rights of the people, to determine. Are the rights in dispute secured? Are they included in Magna Charta, Bill of Rights, etc.? If not, they are, generally speaking, within the king's prerogative. In disputes between the Congress and the people, the reverse of the proposition holds. Is the disputed right enumerated? If not, Congress cannot meddle with it." * * *
"Mr. Nicholas concluded, by making a few observations on the general structure of the Government, and its probable happy operation. He said that it was a Government calculated to suit almost any extent of territory. He then quoted the opinion of the celebrated Montesquieu, from vol. i, b. 9, where that writer speaks of a Confederate Republic as the only safe means of extending the sphere of a Republican Government to any considerable degree."*
* Elliot's Debates, vol. iii, p. 247.
Mr. Madison said: "The powers of the General Government relate to external objects, and are but few. But the powers in the States relate to those great objects which immediately concern the prosperity of the people. Let us observe, also, that the powers in the General Government are those which will be exercised mostly in time of war, while those of the State Governments will be exercised in time of peace. I should not complete the view which ought to be taken of this subject, without making this additional remark, — that the powers vested in the proposed Government are not so much an augmentation of powers in the General Government, as a change rendered necessary for the purpose of giving efficacy to those which were vested in it before. It cannot escape any gentleman, that this power, in theory, exists in the Confederation as fully as in this Constitution. The only. difference is this — that now they tax States, and by this plan they will tax individuals. There is no theoretic difference between the two. But in practice there will be an infinite difference between them. The one is an ineffectual power; the other is adequate to the purpose for,which it is given. This change was necessary for the public safety.
"Let us suppose, for a moment, that the acts of Congress, requiring money from the States, had been as effectual as the paper on the table; suppose all the laws of Congress had complete compliance; will any gentleman say that, as far as we can judge from past experience, the State Governments would have been debased, and all consolidated and incorporated into one system? My imagination cannot reach it. I conceive that had those acts that effect, which all laws ought to have, the States would have retained their Sovereignty."*
* Elliot's Debates, vol. iii, pp. 259, 260, Virginia State Convention.
George Mason (in opposition) said:
"The objection was, that too much power was given to Congress — power that would finally destroy the State Government's more effectually by insidious, underhanded means, than such as could be openly practiced."†
† Elliot's Debates, vol. iii, p. 415.
Mr. Marshall replied: "When the Government is drawn from the people, and depending on the people for its continuance, oppressive measures will not be attempted, as they will certainly draw on their authors the resentment of those on whom they depend. On this Government, thus depending on ourselves for its existence, I will rest my safety, notwithstanding the danger depicted by the honorable gentleman. I cannot help being surprised that the worthy member thought this power so dangerous."*
* Elliot's Debates, vol. iii, p. 420.
He then concluded by observing, that "the power of governing the militia was not vested in the States, by implication, because, being possessed of it antecedent to the adoption of the Government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been. And it could not be said that any of the States derived any powers from that system, but retained them, though not acknowledged in any part of it."†
† Elliot's Debates, vol. iii, p. 421.
Mr. Henry again spoke, as follows: "A bill of rights may be summed up in a few words. What do they tell us? That our rights are reserved. Why not say so? Is it because it will consume too much paper? Gentlemen's reasoning against a bill of rights does not satisfy me — without saying which has the right side, it remains doubtful. A bill of rights is a favorite thing with the Virginians, and the people of the other States, likewise. It may be their prejudice, but the Government ought to suit their geniuses; otherwise, its operation will be unhappy. A bill of rights, even if its necessity be doubtful, will exclude the possibility of dispute; and, with great submission, I think the best way is to have no dispute. In the present Constitution, they are restrained from issuing general warrants to search suspected places, or seize persons not named, without evidence of the commission of a fact, etc. There was certainly some celestial influence governing those who deliberated on that Constitution; for they have, with the most cautious and enlightened circumspection, guarded those indefeasible rights which ought ever to be held sacred!"*
* Elliot's Debates, vol. iii, p. 448.
Mr. George Nicholas, in answer, said: "That, though there was a declaration of rights in the Government of Virginia, it was no conclusive reason that there should be one in this Constitution; for, if it was unnecessary in the former, its omission in the latter could be no defect. They ought, therefore, to prove that it was essentially necessary to be inserted in the Constitution of Virginia. There were five or six States in the Union which had no bill of rights, separately and distinctly as such; but they annexed the substance of a bill of rights to their respective constitutions. These States, he further observed, were as free as this State, and their liberties as secure as ours. if so, gentlemen's arguments from the precedent were not good. In Virginia, all powers were given to the Government without any exception. It was different in the General Government, to which certain special powers were delegated for certain purposes. He asked which was the more safe. Was it safer to grant general powers than certain limited powers?" * * *
"A bill of rights," continued he, "is only an acknowledgment of the pre-existing claim to rights in the people. They belong to us as much as if they had been inserted in the Constitution. But it is said that, if it be doubtful, the possibility of dispute ought to be precluded. Admitting it was proper for the Convention to have inserted a bill of rights, it is not proper here to propose it as the condition of our accession to the Union. Would you reject this Government for its omission, dissolve the Union, and bring miseries on yourselves and posterity? I hope the gentleman does not oppose it on this ground solely. Is there another reason? He said that it is not only the general wish of this State, but all the States, to have a bill of rights. If it be so, where is the difficulty of having this done by way of subsequent amendment? We shall find the other States willing to accord with their own favorite wish. The gentleman last up says that the power of legislation includes every thing. A general power of legislation does. But this is a special power of legislation. Therefore, it does not contain that plenitude of power which he imagines. They cannot legislate in any case but those particularly enumerated. No gentleman, who is a friend to the Government, ought to withhold his assent from it for this reason."*
* Elliot's Debates, vol. iii, p. 451.
Mr. Henry continued his strenuous opposition in the following language: "The Honorable gentleman (Gov. Randolph), who was up some time ago, exhorts us not to fall into a repetition of the defects of the Confederation. He said, we ought not to declare that each State retains every power, jurisdiction, and right, which is not expressly delegated, because experience has proved the insertion of such a restriction to be destructive, and mentioned an instance to prove it. That case, Mr. Chairman, appears to me to militate against himself. * * * They can exercise power, by implication, in one instance as well as in another. Thus, by the gentleman's own argument, they can exercise the power, though it be not delegated. * * * We have nothing local to ask. We ask rights which concern the general happiness. Must not justice bring them into the concession of these? The honorable gentleman was pleased to say that the new Government, in this policy, will be equal to what the present is. If so, that amendment will not injure that part. * * * *
"He speaks of war and bloodshed. Whence do this war and bloodshed come? I fear it, but not from the source he speaks of. I fear it, sir, from the operation and friends of the Federal Government. He speaks with contempt of this amendment. But whoever will advert to the use made, repeatedly, in England, of the prerogative of the king, and the frequent attacks on the privileges of the people, notwithstanding many Legislative acts to secure them, will see the necessity of excluding implications. Nations who have trusted to logical deductions have lost their liberty! * * * *
"The worthy member who proposed to ratify has also proposed that what amendments may be deemed necessary should be recommended to Congress, and that a committee should be appointed to consider what amendments were necessary. But what does it all come to at last? That it is a vain project, and that it is indecent and improper! I will not argue unfairly, but I will ask him if amendments are not unattainable? Will gentlemen, then, lay their hands on their hearts, and say that they can adopt it in this shape? When we demand this security of our privileges, the language of Virginia is not that of respect! Give me leave to deny! She only asks amendments previous to her adoption of the Constitution. * * *
"He tells you of the important blessings which, he imagines, will result to us and mankind in general from the adoption of this system. I see the awful immensity of the dangers with which it is pregnant! I see it! I feel it! I see beings of a higher order anxious concerning our decision! When I see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions, reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account, on one side or the other, will depend on what we now decide! Our own happiness alone is not affected by the event! All nations are interested in the determination! We have it in our power to secure the happiness of one half of the human race! Its adoption may involve the misery of the other hemisphere!"*
* "Here a violent storm arose, which put the House in such disorder, that Mr. Henry was obliged to conclude." — Reporter. Elliot's Debates, vol. iii, p. 625.
Just at this point in Mr. Henry's speech, the heavens blackened with a gathering tempest, which burst with so terrible a fury as to put the whole House in such disorder that he could proceed no farther! It was the last speech that Patrick Henry made in that Convention!
Did he possess a superhuman vision, or had he caught something of the spirit of the ancient prophets, which enabled him to see farther into the future, and understand better the workings of political systems controlled by human passion, than any of his many great and equally patriotic colleagues, in that renowned body of sages and statesmen? Did he see farther in the future than Pendleton, Madison, or Marshall, when he said, "I see it! I feel it!" Did he get glimpses of the terrible scenes of the last seven years? or, of the still more horrible ones yet ahead of us —?
Mr. Nicholas replied, by urging "that the language of the proposed ratification would secure every thing which gentlemen desired, as it declared that all powers vested in the Constitution were derived from the people, and might be resumed by them whensoever they should be perverted to their injury and oppression; and that every power not granted thereby remained at their will. No danger whatever could arise; for, says he, these expressions will become a part of the contract. The Constitution cannot be binding on Virginia, but with these conditions. If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification, and intent, to be (what the words of the contract plainly and obviously denote), that it is not — to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it whensoever any such imposition shall be attempted, — I ask whether, in this case, these conditions, on which he has assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them."*
* Elliot's Debates, vol. iii., pp. 625, 626.
On the question of ratification, the vote stood 89 to 79, being only ten majority in its favor.†
† Elliot's Debates, vol. iii, p. 654.
Immediately afterwards the amendments, which had been agreed upon to be proposed, were taken up and adopted, without opposition. They were twenty in number. Very similar, in many respects, to those incorporated by Massachusetts in her ratification. The first, and most important, was in these words:
"1st. That each State in the Union shall, respectively, retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal Government."*
* Elliot's Debates, vol. iii, p. 659.
These proceedings conclusively show how the Convention of Virginia understood the Constitution. That is, that it was Federal in its character, and that the Government under it was to be a Federal Government, one founded upon Compact between Sovereign States. Not a member of the Convention advocated the Constitution upon any other principles. The opposition of Patrick Henry, George Mason, and others, was altogether argumentative, and sprung mainly from apprehensions that the Constitution would not be construed as its friends maintained that it would be, and that powers not delegated would be assumed, by construction and implication. These proceedings also show clearly, that Virginia understood by the declaration, in her ratification, that her people had the right to resume the powers that they had delegated, in case these powers, in their judgment, should be perverted to their injury.
ELEVENTH, NEW YORK.
The next State, in order, is New York. First we will see what was done by her Convention. Here is her ratification.
"We, the Delegates of the people of the State of New York, duly elected, and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the 17th day of September, in the year 1787, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania (a copy whereof precedes these presents), and having, also, seriously and deliberately considered the present situation of the United States, — Do declare and make known, —
"That all power is originally vested in, and consequently derived from the people, and that Government is instituted by them for their common interest, protection, and security.
"That the enjoyment of life, liberty, and the pursuit of happiness, are essential rights, which every Government ought to respect and preserve.
"That the powers of Government may be re-assumed by the people, whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof remains to the people of the several States, or to their respective State Governments, to whom they may have granted the same; and that those clauses, in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.
"That the people have an equal, natural, and unalienable right, freely and peaceably, to exercise their religion, according to the dictates of conscience; and that no religious sect, or society, ought to be favored or established by law in preference to others.
"That the people have a right to keep and bear arms; that a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free State.
"That the militia should not be subject to martial law, except in time of war, rebellion or insurrection.
"That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity, and that at all times the military should be under strict subordination to the civil Dower.
"That, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrate, in such manner as the laws may direct.
"That no person ought to be taken, imprisoned, or disseized of his freehold, or be exiled, or deprived of his privileges, franchises, life, liberty, or property, but by due process of law.
"That no person ought to be put twice in jeopardy of life or limb, for one and the same offence; nor, unless in case of impeachment, be punished more than once for the same offence. That every person restrained of hit, liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry, or removal, ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of Habeas Corpus. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.
"That (except in the government of the land and naval forces, and of the militia, when in actual service, and in cases of impeachment) a presentment, or indictment, by a grand jury, ought to be observed, as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States; and such trial should be speedy, public, and by an impartial jury of the county where the crime was committed; and that no person can be found guilty without the unanimous consent of such jury. But in cases of crimes not committed within any county of any of the United States, and in cases of crimes not committed within any county in which a general insurrection may prevail, or which may be in the possession of a foreign enemy, the inquiry and trial may be in such county as the Congress shall by law direct; which county, in the two cases last mentioned, should be as near as conveniently may be to that county in which the crime may have been committed; — and that, in all criminal prosecutions, the accused ought to be informed of the cause and nature of his accusation, to be confronted with his accusers and the witnesses against him, to have the means of producing his witnesses, and the assistance of counsel for his defence; and should not be compelled to give evidence against himself.
"That the trial by jury, in the extent that it obtains by the common law of England, is one of the greatest securities to the rights of a free people, and ought to remain inviolate.
"That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and, therefore, that all warrants to search suspected places, or seize any freeman, his papers, or property, without information upon oath, or affirmation of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.
"That the people have a right peaceably to assemble together, to consult for their common good, or to instruct their representatives, and that every person has a right to petition, or apply to the Legislature, for redress of grievances.
"That the freedom of the press ought not to be violated, or restrained.
"That there should be, once in four years, an election of the President and Vice President, so that no officer, who may be appointed by the Congress, to act as President, in case of the removal, death, resignation, or inability, of the President and Vice President, can in any case continue to act beyond the termination of the period for which the last President and Vice President were elected.
"That nothing contained in the said Constitution is to be construed to prevent the Legislature of any State from passing laws at its discretion, from time to time, to divide such State into convenient districts, and to apportion its Representatives to and amongst such districts.
"That the prohibition contained in the said Constitution, against ex post facto laws, extends only to laws concerning crimes.
"That all appeals in causes determinable according to the course of the common law, ought to be by writ of error, and not otherwise.
"That the judicial power of the United States, in cases in which a State may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a State.
"That the judicial power of the United States, as to controversies between citizens of the same State, claiming lands under grants from different States, is not to be construed to extend to any other controversies between them, except those which relate to such lands, so claimed, under grants of different States.
"That the jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be increased, enlarged, or extended, by any faction, collusion, or mere suggestion; and that no treaty is to be construed so to operate as to alter the Constitution of any State.
"Under these impressions, and declaring that the rights aforesaid cannot be abridged, or violated, and that the explanations aforesaid, are consistent with the said Constitution, and in confidence that the amendments. which shall have been proposed to the said Constitution, will receive an early and mature consideration. We, the said delegates, in the name and in the behalf of the people of the State of New York, do, by these presents, assent to, and ratify the said Constitution. In full confidence, nevertheless, that, until a Convention shall be called and convened, for proposing amendments to the said Constitution, the militia of this State will not be continued in service out of this State for a longer term than six weeks, without the consent of the Legislature thereof; that the Congress will not make or alter any regulation in this State, respecting the times, places, and manner, of holding elections for Senators or Representatives, unless the Legislature of this State shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance, be incapable of making the same; and that in those cases, such power will only be exercised until the Legislature of this State shall make provision in the premises; that no excise will be imposed on any article of the growth, production, or manufacture of the United States, or any of them, within this State, ardent spirits excepted; and that Congress will not lay direct taxes. within this State, but when the moneys arising from the impost and excise shall be insufficient for the public exigencies, nor then, until Congress shall first have made a requisition upon this State, to assess, levy, and pay, the amount of such requisition, made agreeably to the census fixed in the said Constitution, in such way and manner as the Legislature of this State shall judge best; but that, in such case, if the State shall neglect or refuse to pay its proportion, pursuant to such requisition, then the Congress may assess and levy this State's proportion, together with interest, at the rate of Six per centum per annum, from the time at which the same was required to be paid.
"Done, in Convention, at Poughkeepsie, in the county of Duchess, in the State of New York, the 26th day of July, in the year of our Lord 1788;"*
* Elliot's Debates, vol. i, pp. 327-329.
A careful perusal of these proceedings leaves no doubt as to how the Convention of New York understood the Constitution. They recognized it as a Constitution for States. As Virginia, New York accompanied her ratification with the express declaration that the powers of Government may be resumed by the people whensoever it shall become necessary to their happiness, etc. "Under these impressions, and declaring that the rights aforesaid (after the enumeration of many, especially the reserved rights of the people of the several States as States) cannot be abridged or violated," a majority of the members of the Convention gave it their assent and ratification. So much for what was done.
Secondly, let us examine the res gestŠ — the debates.
In New York the opposition was stronger in numbers, comparatively, than in Virginia. On the final vote on the ratification there was but three majority in its favor. Some of the ablest men of the State were in the Convention. At the head of the list may be placed the venerable Robert R. Livingston, the Chancellor of the State. Next to him stood Alexander Hamilton, who had been in the Philadelphia Convention.
Now let us, as in the other State Conventions, sample the debates in this. The Constitution here, as in Massachusetts and Virginia, was thoroughly discussed. How was it understood by its advocates?
Chancellor Livingston opened the discussion. After some general remarks "he next adverted to the form of the Federal Government. He said that, though justified when considered as a mere diplomatic body, making engagements for its respective States, which they were to carry into effect, yet, if it was to enjoy legislative, judicial, and executive powers, an attention as well to the facility of doing business as to the principles of freedom, called for a division of those powers."*
* Elliot's Debates, vol. ii, p. 215.
In another speech afterwards, he says:
"The gentleman from Duchess appears to have misapprehended some of the ideas which dropped from me. My argument was, that a Republic might very properly be formed by a league of States, but that the laws of the general Legislature must act, and be enforced upon individuals. I am contending for this species of Government. The gentlemen who have spoken in opposition to me have either misunderstood or perverted my meaning; but, sir, I flatter myself, it has not been misunderstood by the Convention at large.
"If we examine the history of the Federal Republics, whose legislative powers were exercised only in States, in their collective capacity, we shall find in their fundamental principles the seeds of domestic violence and consequent annihilation. This was the principal reason why I thought the old Confederation would be forever impracticable."† He was for a Government founded on a Compact or League of States, with authority to act on the individual citizens of each State, and maintained that such was the form of Government then presented.
† Elliot's Debates, vol. ii, p. 274.
Again, he said:
"Let us take a view of the present Congress. The gentleman is satisfied with our present Federal Government, on the score of corruption. Here he has confidence. Though each State may delegate seven, they generally sent no more than three; consequently thirty-nine men may transact any business under the old Government; while the new Legislature, which will be, in all probability, constantly full, will consist of ninety-one. But, says the gentleman, our present Congress have not the same powers. I answer, They have the very same. Congress have the power of making war and peace, of levying money and raising men; they may involve us in a war at their pleasure; they may negotiate loans to any extent, and make unlimited demands upon the States. Here the gentleman comes forward, and says, that the States are to carry these powers into execution; and they have the power of non-compliance. But is not every State bound to comply? What power have they to control Congress in the exercise of those rights which they have pledged themselves to support? It is true they have broken, in numerous instances, the compact by which they were obligated; and they may do it again; but will the gentleman draw an argument of security from the facility of violating their faith? Suppose there should be a majority of creditor States, under the present Government; might they not combine, and compel us to observe the covenants by which we had bound ourselves?
"We are told that this Constitution gives Congress the power over the purse and the sword. Sir, have not all good Governments this power? Nay, does any one doubt that, under the old Confederation, Congress holds the purse and the sword? How many loans did they procure, which we are bound to pay! How many men did they raise, whom we are bound to maintain! How will gentlemen say, that that body, which is indeed extremely small, can be more safely trusted than a much larger body possessed of the same authority? What is the ground of such entire confidence in the one — what the cause of so much jealousy of the other?"*
* Elliot's Debates, vol. ii, p. 278-279.
Mr. Williams, in opposition, spoke as follows: "Sir, I yesterday expressed my fears that this clause would tend to annihilate the State Governments. I also observed, that the powers granted by it were indefinite, since the Congress are authorized to provide for the common defence and general welfare, and to pass all laws necessary for the attainment of these important objects. The Legislature is the highest power in a Government. Whatever they judge necessary for the proper administration of the powers lodged in them, they may execute without any check or impediment. Now, if the Congress should judge it a proper provision, for the common defence and general welfare, that the State Governments should be essentially destroyed, what, in the name of common sense, will prevent them? Are they not Constitutionally authorized to pass such laws? Are not the terms, common defence and general welfare, indefinite, indefinable terms? What checks have the State Governments against such encroachments? Why, they appoint the Senators once in six years. So do the electors of Germany appoint their Emperor. And what restraint have they against tyranny in their head? Do they rely upon any thing but arms, the ultima ratio? And to this most undesirable point must the States recur in order to secure their rights."†
† Elliot's Debates, vol. ii, p. 338.
Mr. Hamilton, on the other side, said: "Sir, the most powerful obstacle to the members of Congress betraying the interest of their constituents, is the State Legislatures themselves, who will be standing bodies of observation, possessing the confidence of the people, jealous of Federal encroachments, and armed with every power to check the first essays of treachery. They will institute regular modes of inquiry. The complicated domestic attachments, which subsist between the State Legislators and their electors, will ever make them vigilant guardians of the people's rights. Possessed of the means and the disposition of resistance, the spirit of opposition will be easily communicated to the people, and, under the conduct of an organized body of leaders, will act with weight and system. Thus, it appears that the very structure of the Confederacy affords the surest preventions from error, and the most powerful checks to misconduct."*
* Elliot's Debates, vol. ii, pp. 266-267.
Again, he said: "The gentlemen are afraid that the State Governments will be abolished. But, sir, their existence does not depend upon the laws of the United States. Congress can no more abolish the State Governments, than they can dissolve the Union. The whole Constitution is repugnant to it, and yet the gentleman would introduce an additional useless provision against it."†
† Elliot's Debates, vol. ii, p. 319.
Mr. Lansing, doubting, expressed himself as follows: "I know not that history furnishes an example of a Confederated Republic coercing the States composing it, by the mild influence of laws operating on the individuals of those States. This, therefore, I suppose to be a new experiment in politics; and, as we cannot always accurately ascertain the results of political measures, and, as reasoning on them has been frequently found fallacious, we should not too confidently predict those to be produced by the new system."*
* Elliot's Debates, vol. ii, p. 219
Mr. Hamilton, in a general exposition of the Constitution, said: "We contend that the radical vice in the old Confederation is, that the laws of the Union apply only to States in their corporate capacity. Has not every man, who has been in our Legislature, experienced the truth of this position? It is inseparable from the disposition of bodies, who have a Constitutional power of resistance, to examine the merits of a law. This has ever been the case with the Federal requisitions. In this examination, not being furnished with those lights which directed the deliberations of the general Government, and incapable of embracing the general interests of the Union, the States have almost uniformly weighed the requisitions by their own local interests, and have only executed them so far as answered their particular convenience or advantage. * * * It has been observed, to coerce the States is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single State. This being the case, can we suppose it wise to hazard a civil war? Suppose Massachusetts, or any large State, should refuse, and Congress should attempt to compel them, would they not have influence to procure assistance, especially from those States which are in the same situation as themselves? What picture does this idea present to our view? A complying State at war with a non-complying State; Congress marching the troops of one State into the bosom of another; this State collecting auxiliaries, and forming, perhaps, a majority against its Federal head. Here is a nation at war with itself. Can any reasonable man be well disposed towards a Government which makes war and carnage the only means of supporting itself — a Government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a Government. But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream; it is impossible. Then we are brought to this dilemma — either a Federal standing army is to enforce the requisitions, or the Federal treasury is left without supplies, and the Government without support. What, sir, is the cure for this great evil? Nothing, but to enable the national laws to operate on individuals, in the same manner as those of the States do. This is the true reasoning upon the subject, sir. The gentlemen appear to acknowledge its force; and yet, while they yield to the principle, they seem to fear its application to the Government."*
* Elliot's Debates, vol. ii, pp. 231, 232, 233.
Again, he said: "The State Governments possess inherent advantages, which will ever give them an influence and ascendancy over the National Government, and will forever preclude the possibility of Federal encroachments. That their liberties, indeed, can be subverted by the Federal head, is repugnant to every rule of political calculation. Is not this arrangement, then. sir, a most wise and prudent one? Is not the present representation fully adequate to our present exigencies, and sufficient to answer all the purposes of the Union? I am persuaded than an examination of the objects of the Federal Government will afford a conclusive answer."†
† Elliot's Debates, vol. ii, p. 239.
Mr. Jay, afterwards Chief Justice of the United States, said: "Sir, it seems to be, on all sides, agreed that a strong, energetic, Federal Government is necessary for the United States. It has given me pleasure to hear such declarations come from all parts of the House. If gentlemen are of this opinion, they give us to understand that such a Government is the favorite of their desire; and also, that it can be instituted; that, indeed, it is both necessary and practicable; or why do they advocate it."*
* Elliot's Debates, vol. ii, p. 282.
Mr. R. Morris said: "I am happy, Mr. Chairman, to perceive that it is a principle on all sides conceded, and adopted by this committee, that an energetic Federal Government is essential to the preservation of our Union; and that a Constitution for these States ought to unite firmness and vigor in the National operations, with the full securities of our rights and liberties."†
† Elliot's Debates, vol. ii, p. 29..
Mr. Hamilton, again, said: "I insist that it never can be the interest or desire of the National Legislature to destroy the State Governments. It can derive no advantage from such an event; but, on the contrary, would lose an indispensable support, a necessary aid in executing the laws, and conveying the influence of Government to the doors of the people. The Union is dependent on the will of the State Governments for its Chief Magistrate, and for its Senate. The blow aimed at the members must give a fatal wound to the head; and the destruction of the States must be at once a political suicide." * * *
"The States can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate."‡
‡ Elliot's Debates, vol. ii, p. 355.
"With regard to the jurisdiction of the two Governments, I shall certainly admit that the Constitution ought to be so formed as not to prevent the States from providing for their own existence; and I maintain that it is so formed, and that their power of providing for themselves is sufficiently established. This is conceded by one gentleman, and in the next breath the concession is retracted. He says, Congress have but one exclusive right in taxation — that of duties on imports; certainly, then, their other powers are only concurrent. But, to take off the force of this obvious conclusion, he immediately says, that the laws of the United States are supreme; and that where there is one supreme, there cannot be concurrent authority; and further, that where the laws of the Union are supreme, those of the States must be subordinate, because there cannot be two supremes. This is curious sophistry. That two supremes cannot act together, is false. They are inconsistent only when they are aimed at each other, or at one indivisible object. The laws of the United States are supreme, as to all their proper, constitutional objects; the laws of the States are supreme in tile same way. These supreme laws may act on different objects without clashing, or they may operate on different parts of the same object, with perfect harmony. Suppose both Governments should lay a tax, of a penny on a certain article: had not each an independent and uncontrollable power to collect its own tax? The meaning of the maxim, there cannot be two supremes, is simply this — two powers cannot be supreme over each other. This meaning is entirely perverted by the gentleman. But it is said disputes between collectors are to be referred to the Federal courts. This is again wandering in the field of conjecture. But suppose the fact certain: is it not to be presumed that they will express the true meaning of the Constitution and the laws? Will they not be bound to consider the concurrent jurisdiction; to declare that both the taxes shall have equal operation; that both the powers, in that respect, are Sovereign and coextensive? If they transgress their duty, we are to hope that they will be punished. Sir, we can reason, from probabilities alone. When we leave common sense, and give ourselves up to conjecture, there can be no certainty, no security in our reasonings.
"I imagine, I have stated to the committee abundant reasons to prove the entire safety of the State Governments and of the people."*
* Elliot's Debates, vol. ii, p. 355.
This is quite sample enough of the debates in New York Convention, (which lasted for more than a month) to show how the leading advocates of the Constitution in that State understood it, and especially how Mr. Hamilton understood it. His own copious and elaborate speeches abundantly show that he considered the plan, finally adopted by the Philadelphia Convention, to be a Federal Constitution. And his greatest efforts were put forth against those who argued that a different construction might be put upon it. In all of the speeches I have read, he speaks of the Government as Federal, and in one he styles it a Confederacy. As such, he gave it his zealous support, though it was not such a one as he wished to see organized. Nor was it one in which he had milch real confidence. The idea on which it was based was not his own; failing in his own, he patriotically took the plan adopted, and threw his whole soul in its support as an experiment.
TWELFTH, NORTH CAROLINA.
The next State in order is North Carolina. She remained out of the Union for some time. As in the other cases we will look first into her action, and then the debates. Her ratification is in these words:
"Whereas, the General Convention, which met in Philadelphia, in pursuance of a recommendation of Congress, did recommend to the citizens of the United States a Constitution, or form of Government, in the following words, namely: Resolved, That this Convention, in behalf of the freemen, citizens, and inhabitants of the State of North Carolina, do adopt and ratify the said Constitution and form of Government.
"Done, in Convention, this twenty-first day of November, one thousand seven hundred and eighty-nine."
The proceedings in North Carolina are short. Upon their face there is nothing that would indicate the understanding of the members of the Convention as to the nature and character of the Government instituted by the Constitution they adopted. In the debates, the points discussed related mostly to the details of the Constitution. But quite enough, however, appears in them to show the general understanding.
Secondly, let us look into the debates in this Convention, as we have in those of the other States.
Mr. Davie, who was in the Philadelphia Convention, opened the discussion, and amongst other things, said:
"Another radical vice in the old system which was necessary to be corrected, and which will be understood without a long deduction of reasoning, was, that it legislated on States, instead of individuals; and that its powers could not be executed but by fire or by the sword — by military force, and not by the intervention of the civil magistrate. Every one who is acquainted with the relative situation of the States, and the genius of our citizens, must acknowledge that, if the Government was to be carried into effect by military force, the most dreadful consequences would ensue. It would render the citizens of America the most implacable enemies to one another. If it could be carried into effect against the small States, yet it could not be put in force against the larger and more powerful States. It was, therefore, abundantly necessary that the influence of the magistrate should be introduced, and that the laws should be carried home to individuals themselves.
"In the formation of this system, many difficulties presented themselves to the Convention.
"Every member saw that the existing system would ever be ineffectual, unless its laws operated on individuals, as military coercion was neither eligible nor practicable." * * *
"Mutual concessions were necessary to come to any concurrence. A plan that would promote the exclusive interests of a few States would be injurious to others. Had each State obstinately insisted on the security of its particular local advantages, we should never have come to a conclusion. Each, therefore, amicably and wisely relinquished its particular views. The Federal Convention have told you, that the Constitution, which they formed, 'was the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of their political situation rendered indispensable.' I hope the same laudable spirit will govern this Convention in their decision on this important question.
"The business of the Convention was to amend the Confederation, by giving it additional powers. The present form of Congress being a single body, it was thought unsafe to augment its powers, without altering its organization. The act of the Convention is but a mere proposal, similar to the production of a private pen. I think it a, Government which, if adopted, will cherish and protect the happiness and liberty of America; but I hold my mind open to conviction. I am ready to recede from my opinion, if it be proved to be ill-founded. I trust that every man here is equally ready to change an opinion he may have improperly formed. The weakness and inefficiency of the old Confederation produced the necessity of calling the Federal Convention. Their plan is now before you; and, I hope, on a deliberate consideration, every man will see the necessity of such a system. It has been the subject of much jealousy and censure out of doors. I hope gentlemen will now come forward with their objections, and that they will be thrown out and answered with candor and moderation. * * * A consolidation of the States is said by some gentlemen to have been intended. They insinuate that this was the cause of their giving this power of elections. If there were any seeds in this Constitution which might, one day, produce a consolidation, it would, sir, with me, be an insuperable objection, I am so perfectly convinced that so extensive a country as this, can never be managed by one consolidated Government. The Federal Convention were as well convinced as the members of this House, that the State Governments were absolutely necessary to the existence of the Federal Government. They considered them as the great massy pillars on which this political fabric was to be extended and supported; and were fully persuaded that, when they were removed, or should moulder down by time, the General Government must tumble into ruin. A very little reflection will show that no department of it can exist without the State Governments.
"Let us begin with the House of Representatives. Who are to vote for the Federal Representatives? Those who vote for the State Representatives. If the State Government vanishes, the General Government must vanish also. This is the foundation on which this Government was raised, and without which it cannot possibly exist.
"The next department is the Senate. How is it formed? By the States themselves. Do they not choose them? Are they not created by them? And will they not have the interest of the States particularly at heart? The States, sir, can put a final period to the Government, as was observed by a gentleman who thought this power over elections unnecessary. If the State Legislatures think proper, they may refuse to choose Senators, and the Government must be destroyed."*
* Elliot's Debates, vol. iv, pp. 21, 22, 23, 58.
Besides this act of ratification and the speeches of Mr. Davie, we have a set of Resolutions which were passed by the Convention, recommending six amendments to the Constitution, which fully explain their understanding of the Constitution.
The first of these is as follows:
"1. Each State in the Union shall respectively retain every power, jurisdiction, and right, which Is not by this Constitution delegated to the Congress of the United States, or to the departments of the General Government; nor shall the said Congress, nor any department of the said Government, exercise any act of authority over any individual in any of the said States, but such as can be justified under some power particularly given in this Constitution; but the said Constitution shall be considered at all times a solemn instrument, defining the extent of their authority, and the limits of which they cannot rightfully in any instance exceed."†
† Elliot's Debates, vol iv, p. 249.
This is quite sufficient to show that the people of North Carolina understood the Constitution they adopted to be Federal in its character. That is the object of our inquiry.
THIRTEENTH, RHODE ISLAND.
We come now to Rhode Island, the last of the States which acted upon the Constitution. The proceedings are very voluminous. Nothing but the importance of the question at issue could induce me to ask you to attend to their reading. Their very length, however, shows how completely Federal they were, and guarding against every possible danger to their Sovereignty.
Here is the Document by which she became a member of the United States, under their present Union:
"We, the Delegates of the people of the State of Rhode Island and Providence Plantations, duly elected, and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty-seven, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania (a copy whereof precedes these presents), and having also seriously and deliberately considered the present situation of this State, do declare and make known, —
"1. That there are certain natural rights of which men, when they form a social Compact, cannot deprive or divest their posterity, — among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.
"II. That all power is naturally vested in, and consequently derived from, the people; that magistrates, therefore, are their trustees and agents, and at all times amenable to them.
"III. That the powers of Government may be resumed by the people whensoever it shall become necessary to their happiness. That the rights of the States respectively to nominate and appoint all State officers, and every other power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or to the Departments of Government thereof, remain to the people of the several States, or their respective State Governments, to whom they may have granted the same; and that those clauses in the Constitution which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.
"IV. That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force and violence; and, therefore, all men have a natural, equal, and unalienable right to the exercise of religion according to the dictates of conscience; and that no particular religious Sect, or Society, ought to be favored or established by law, in preference to others.
"V. That the legislative, executive, and judiciary powers of Government should be separate and distinct: and that the members of the two first may be restrained front oppression, by feeling and participating the public burdens, they should, at fixed periods, be reduced to a private station, returned into the mass of the people, and the vacancies be supplied by certain and regular elections, in which all, or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government and the laws shall direct.
"VI. That elections of representatives in Legislature ought to be free and frequent: and all men having sufficient evidence of permanent common interest with, and attachment to, the community, ought to have the right of suffrage; and no aid, charge, tax, or fee, can be set, rated, or levied, upon the people, without their own consent, or that of their representatives so elected, nor can they be bound by any law to which they have not in like manner consented for the public good.
"VII. That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised.
"VIII. That, in all capital and criminal prosecutions, a man hath the right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury in his vicinage, without whose unanimous consent he cannot be found guilty, (except in the government of the land and naval forces,) nor can he be compelled to give evidence against himself.
"IX. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the trial by jury, or by the laws of the land.
"X. That every freeman, restrained of his liberty, is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same if unlawful, and that such remedy ought not to be denied or delayed.
"XI. That in controversies respecting property, and in suits between man and man, the ancient trial by jury, as hath been exercised by us and our ancestors, from the time whereof the memory of man is not to the contrary, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.
"XII: That every freeman ought to obtain right and justice, freely and without sale, completely and without denial, promptly and without delay; and that all establishments, or regulations contravening these rights are oppressive and unjust.
"XIII. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.
"XIV. That every person has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and, therefore, that all warrants to search suspected places, to seize any person, his papers, or his property, without information upon oath or affirmation of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.
"XV. That the people have a right peaceably to assemble together, to consult for their common good, or to instruct their representatives; and that every person has a right to petition or apply to the Legislature for redress of grievances.
"XVI. That the people have a right to freedom of speech, and of writing, and publishing their sentiments. That freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.
"XVII. That the people have a right to keep and bear arms; that a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free State; that the militia shall not be subject to martial law, except in time of war, rebellion, or insurrection; that standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that, at all times, the military should be under strict subordination to the civil power; that, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrates, in such manner as the law directs.
"XVIII. That any person religiously scrupulous of bearing arms ought to be exempted upon the payment of an equivalent to employ another to bear arms in his stead.
"Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Cons8titution, and in confidence that the amendments hereafter mentioned will receive an early and mature consideration, and, conformably to the fifth article of said Constitution, speedily become a part thereof, — We, the said Delegates, in the name and in the behalf of the people of the State of Rhode Island and Providence Plantations, do, by these presents, assent to and ratify the said Constitution. In full confidence, nevertheless, that, until the amendments hereafter proposed and undermentioned shall be agreed to and ratified, pursuant to the aforesaid fifth article, the militia will not be continued In service out of this State, for a longer term than six weeks, without the consent of the Legislature thereof; that the Congress will not make or alter any regulation in this State respecting the times, places, and manner of holding elections for Senators or Representatives, unless the Legislature of this State shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance, be incapable of making the same; and that, in those cases, such power will only be exercised until the Legislature of this State shall make provision in the premises; that the Congress will not lay direct taxes within this State, but when the moneys arising from impost, tonnage, and excise, shall be insufficient for the public exigencies, nor until the Congress shall have first made a requisition upon this State to assess, levy, and pay, the amount of such requisition made, agreeably to the census fixed in the said Constitution, in such way and manner as the Legislature of this State shall judge best; and that Congress will not lay any capitation or poll tax.
"Done in Convention, at Newport, in the County of Newport, in the State of Rhode Island and Providence Plantations, the twenty-ninth day of May, in the year of our Lord one thousand seven hundred and ninety, and in the fourteenth year of the Independence of the United States of America."*
* Elliot's Debates, vol. i, pp. 334-335.
We have now gone through with the action of all the States upon the Constitution. We have examined the records themselves, and not mere assertions touching them. This concludes that sketch of the history of the Union, as it is called, which I proposed. In it we see, that it was first formed by separate and distinct Colonies for the common maintenance of the chartered rights of each. When this failed, it became a Union of separate, distinct States, by Articles of Confederation, for the support and maintenance of the Independence and Sovereignty of each. The absolute right of local Self Government, or State Sovereignty, was the primal and leading idea throughout. We have seen that these States, as Sovereign, responded to a call of a General Federal Convention, to revise the first Articles of Confederation. The present Constitution was the result of their labors. We have seen that it was submitted to the Legislatures of each State, in their separate State organizations, to be referred by them to a Convention, in each State, of the people thereof, that they, in their Sovereign majesty, might approve or reject each, separately, for themselves, as States, and that it was to be established between such States only as should ratify it, and then only in case as many as nine should ratify it.
We have seen that the State Conventions did so act upon it separately and severally, and adopt it as a Constitution for the States, so to be united thereby, each believing it to be a Federal Constitution, and that all powers not delegated were reserved to the States; but, to quiet apprehensions on this point, a majority of them, in their acts of ratification,. demanded an amendment which should make this express declaration, and it was in confidence that this should be done, that they assented to it. Which we shall see was immediately afterwards done.
We have further gone into the debates in the several State Conventions, and seen what were the leading ideas of both friends and opponents as to the nature and character of the Constitution. While many apprehended danger to the Sovereignty of the separate States from constructions and implications, yet on all hands it was universally admitted that it purported to be a Federal Constitution; and it was with this avowed understanding of its nature, by every advocate and supporter it had in every State in the Union, even by Hamilton, Morris, Wilson, King, Madison, and Randolph, who had favored a National Government proper, in the Federal Convention, instead of the plan embodied in the Constitution that the States ratified it. The leading idea in all the Conventions was that a Confederate Republic was to be established by it upon the model set forth in Montesquieu. According to that model an artificial State is created for Foreign or National, as well as inter State purposes, and these only, by several small Republics, thus Confederating, for their common defence and happiness; each retaining its separate Sovereignty, and the artificial State so created by them being, at all times, subject to their will and power. That this artificial State so created may be dissolved, and yet the separate Republic survive, retaining, at all times, their State organization and Sovereignty. This model of a Confederate Republic, by Montesquieu, was the leading idea with the advocates of the system, as appears from their debates, in every State where we have access to them.
Now, then, after this review, is it not clear that the United States are, or constitute, a Confederated Republic (as Washington styled it), bound together by the solemn Compact of Union, entered into by the several members thereof, under the Constitution? The legitimate consequences flowing from this great truth, if it be a truth, will be the subject of a farther talk when I hear what you have to say in reply to the premises. I am now through for the present.
Is not the Constitution, as appears not only from the history of its formation thus given, but from its face, a Compact between Sovereign States?