Essays on the Constitution of the United States Part 10

TO THE Ma.s.sACHUSETTS CONVENTION.

_Gentlemen_,

That the new system, proposed for your adoption, is not founded in argument, but in party spirit, is evident from the whole behaviour of that party, who favour it. The following is a short, but genuine specimen of their reasoning. The South Carolina legislature have established an unequal representation, and will not alter it: therefore Congress should be invested with an unrestrained power to alter the time, manner and place of electing members into that body. Directly the contrary position should have been inferred. An elected a.s.sembly made an improper use of their right to controul elections, therefore such a right ought not to be lodged with them. It will be abused in ten instances, for one in which it will serve any valuable purpose. It is said also that the Rhode Island a.s.sembly _intend_ to abuse their power in this respect, therefore we should put Congress in a situation to abuse theirs. Surely this is not a kind of reasoning that, in the opinion of any indifferent person, can vindicate the fourth section. Yet we have heard it publickly advanced as being conclusive.

The unlimited power over trade, domestick as well as foreign, is another power that will more probably be applied to a bad than to a good purpose.

That our trade was for the last year much in favour of the commonwealth is agreed by all parties. The freedom that every man, whether his capital is large or small, enjoys of entering into any branch that pleases him, rouses a spirit of industry and exertion, that is friendly to commerce. It prevents that stagnation of business which generally precedes publick commotions. Nothing ought to be done to restrain this spirit. The unlimited power over trade, however, is exceedingly apt to injure it.

In most countries of Europe, trade has been more confined by exclusive charters. Exclusive companies are, in trade, pretty much like an aristocracy in government, and produce nearly as bad effects. An instance of it we have ourselves experienced. Before the Revolution, we carried on no direct trade to India. The goods imported from that country came to us through the medium of an exclusive company. Our trade in that quarter is now respectable, and we receive several kinds of their goods at about half the former price. But the evil of such companies does not terminate there.

They always, by the greatness of their capital, have an undue influence on the government.

In a republick, we ought to guard, as much as possible, against the predominance of any particular interest. It is the object of government to protect them all. When commerce is left to take its own course, the advantage of every cla.s.s will be nearly equal. But when exclusive privileges are given to any cla.s.s, it will operate to the weakening of some other cla.s.s connected with them.

AGRIPPA.

(_Remainder next Tuesday._)

Agrippa, XVII.

The Ma.s.sachusetts Gazette, (Number 404)

TUESDAY, JANUARY 20, 1788.

TO THE Ma.s.sACHUSETTS CONVENTION.

_Gentlemen_,

As it is essentially necessary to the happiness of a free people, that the const.i.tution of government should be established in principles of truth, I have endeavoured, in a series of papers, to discuss the proposed form with that degree of freedom which becomes a faithful citizen of the commonwealth. It must be obvious to the most careless observer that the friends of the new plan appear to have nothing more in view than to establish it by a popular current, without any regard to the truth of its principles. Propositions, novel, erroneous and dangerous, are boldly advanced to support a system, which does not appear to be founded in, but in every instance to contradict, the experience of mankind. We are told that a const.i.tution is in itself a bill of rights; that all power not expressly given, is reserved; that no powers are given to the new government which are not already vested in the state governments, and that it is for the security of liberty that the persons elected should have the absolute controul over the time, manner and place of election. These, and an hundred other things of a like kind, though they have gained the hasty a.s.sent of men, respectable for learning and ability, are false in themselves and invented merely to serve a present purpose. This will, I trust, clearly appear from the following considerations:

It is common to consider man at first as in a state of nature, separate from all society. The only historical evidence, that the human species ever actually existed in this state, is derived from the book of Gen.

There it is said, that Adam remained a while alone. While the whole species was comprehended in his person was the only instance in which this supposed state of nature really existed. Ever since the completion of the first pair, mankind appear as natural to a.s.sociate with their own species, as animals of any other kind herd together. Wherever we meet with their settlements, they are found in clans. We are therefore justified in saying, that a state of society is the natural state of man. Wherever we find a settlement of men, we find also some appearance of government. The state of government is therefore as natural to mankind as a state of society. Government and society appear to be co-eval. The most rude and artless form of government is probably the most ancient. This we find to be practised among the Indian tribes in America. With them the whole authority of government is vested in the whole tribe. Individuals depend upon their reputation of valour and wisdom to give them influence. Their government is genuinely democratical. This was probably the first kind of government among mankind, as we meet with no mention of any other kind, till royalty was introduced in the person of Nimrod. Immediately after that time, the Asiatick nations seem to have departed from the simple democracy, which is still retained by their American brethren, and universally adopted the kingly form. We do indeed meet with some vague rumors of an aristocracy in India so late as the time of Alexander the Great. But such stories are altogether uncertain and improbable. For in the time of Abraham, who lived about sixteen hundred years before Alexander, all the little nations mentioned in the Mosaick history appear to be governed by kings. It does not appear from any accounts of the Asiatick kingdoms that they have practised at all upon the idea of a limited monarchy. The whole power of society has been delegated to the kings; and though they may be said to have const.i.tutions of government, because the succession to the crown is limited by certain rules, yet the people are not benefitted by their const.i.tutions, and enjoy no share of civil liberty. The first attempt to reduce republicanism to a system, appears to be made by Moses when he led the Israelites out of Egypt. This government stood a considerable time, about five centuries, till in a frenzy the people demanded a king, that they might resemble the nations about them. They were dissatisfied with their judges, and instead of changing the administration, they madly changed their const.i.tution.

However they might flatter themselves with the idea, that an high-spirited people could get the power back again when they pleased; they never did get it back, and they fared like the nations about them. Their kings tyrannized over them for some centuries, till they fell under a foreign yoke. This is the history of that nation. With a change of names, it describes the progress of political changes in other countries. The people are dazzled with the splendour of distant monarchies, and a desire to share their glory induces them to sacrifice their domestick happiness.

From this general view of the state of mankind it appears that all the powers of government originally reside in the body of the people; and that when they appoint certain persons to administer the government, they delegate all the powers of government not expressly reserved. Hence it appears that a const.i.tution does not in itself imply any more than a declaration of the relation which the different parts of the government bear to each other, but does not in any degree imply security to the rights of individuals. This has been the uniform practice. In all doubtful cases the decision is in favour of the government. It is therefore impertinent to ask by what right government exercises powers not expressly delegated. Mr. Wilson, the great oracle of federalism, acknowledges, in his speech to the Philadelphians,(28) the truth of these remarks, as they respect the state governments, but attempts to set up a distinction between them and the continental government. To anybody who will be at the trouble to read the new system, it is evidently in the same situation as the state const.i.tutions now possess. It is a compact among the _people_ for the purposes of government, and not a compact between states. It begins in the name of the people, and not of the states.

It has been shown in the course of this paper, that when people inst.i.tute government, they of course delegate all rights not expressly reserved. In our state const.i.tution the bill of rights consists of thirty articles. It is evident therefore that the new const.i.tution proposes to delegate greater powers than are granted to our own government, sanguine as the person was who denied it. The complaints against the separate governments, even by the friends of the new plan, are not that they have not power enough, but that they are disposed to make a bad use of what power they have. Surely then they reason badly, when they purpose to set up a government possess'd of much more extensive powers than the present, and subjected to much smaller checks.

Bills of rights, reserved by authority of the people, are, I believe, peculiar to America. A careful observance of the abuse practised in other countries has had its just effect by inducing our people to guard against them. We find the happiest consequences to flow from it. The separate governments know their powers, their objects, and operations. We are therefore not perpetually tormented with new experiments. For a single instance of abuse among us there are thousands in other countries. On the other hand, the people know their rights, and feel happy in the possession of their freedom, both civil and political. Active industry is the consequence of their security, and within one year the circ.u.mstances of the state and of individuals have improved to a degree never before known in this commonwealth. Though our bill of rights does not, perhaps, contain all the cases in which power might be safely reserved, yet it affords a protection to the persons and possessions of individuals not known in any foreign country. In some respects the power of government is a little too confined. In many other countries we find the people resisting their governours for exercising their power in an unaccustomed mode. But for want of a bill of rights the resistance is always, by the principles of their government, a rebellion which nothing but success can justify. In our const.i.tution we have aimed at delegating the necessary powers of government and confining their operation to beneficial purposes. At present we appear to have come very near the truth. Let us therefore have wisdom and virtue enough to preserve it inviolate. It is a stale contrivance, to get the people into a pa.s.sion, in order to make them sacrifice their liberty. Repentance always comes, but it comes too late.

Let us not flatter ourselves that we shall always have good men to govern us. If we endeavour to be like other nations we shall have more bad men than good ones to exercise extensive powers. That circ.u.mstance alone will corrupt them. While they fancy themselves the viceregents of G.o.d, they will resemble him only in power, but will always depart from his wisdom and goodness.

AGRIPPA.

Agrippa, XVIII.

The Ma.s.sachusetts Gazette, (Number 406)

TUESDAY, FEBRUARY 5, 1788.

TO THE Ma.s.sACHUSETTS CONVENTION.

_Gentlemen_,

In my last address I ascertained, from historical records, the following principles: that, in the original state of government, the whole power resides in the whole body of the nation, that when a people appoint certain persons to govern them, they delegate their whole power; that a const.i.tution is not in itself a bill of rights; and that, whatever is the form of government, a bill of rights is essential to the security of the persons and property of the people. It is an idea favourable to the interest of mankind at large, that government is founded in compact.

Several instances may be produced of it, but none is more remarkable than our own. In general, I have chosen to apply to such facts as are in the reach of my readers. For this purpose I have chiefly confined myself to examples drawn from the history of our own country, and to the Old Testament. It is in the power of every reader to verify examples thus substantiated. Even in the remarkable arguments on the fourth section, relative to the power over election I was far from stating the worst of it, as it respects the adverse party. A gentleman, respectable in many points, but more especially for his systematick and perspicuous reasoning in his profession, has repeatedly stated to the Convention, among his reasons in favour of that section, that _the Rhode Island a.s.sembly have for a considerable time past had a bill lying on their __ table for altering the manner of elections for representatives in that state_.(29) He has stated it with all the zeal of a person who believed his argument to be a good one. But surely a _bill lying on a table_ can never be considered as any more than an _intention_ to pa.s.s it, and n.o.body pretends that it ever actually did pa.s.s. It is in strictness only the intention of a part of the a.s.sembly, for n.o.body can aver that it ever will pa.s.s. I write not with an intention to deceive, but that the whole argument may be stated fairly. Much eloquence and ingenuity have been employed in shewing that side of the argument in favor of the proposed const.i.tution, but it ought to be considered that if we accept it upon mere verbal explanations, we shall find ourselves deceived. I appeal to the knowledge of every one, if it does not frequently happen, that a law is interpreted in practice very differently from the intention of the legislature. Hence arises the necessity of acts to amend and explain former acts. This is not an inconvenience in the common and ordinary business of legislation, but is a great one in a const.i.tution. A const.i.tution is a legislative act of the whole people. It is an excellence that it should be permanent, otherwise we are exposed to perpetual insecurity from the fluctuation of government.

We should be in the same situation as under absolute government, sometimes exposed to the pressure of greater, and sometimes unprotected by the weaker power in the sovereign.

It is now generally understood that it is for the security of the people that the powers of the government should be lodged in different branches.

By this means publick business will go on when they all agree, and stop when they disagree. The advantage of checks in government is thus manifested where the concurrence of different branches is necessary to the same act, but the advantage of a division of business is advantageous in other respects. As in every extensive empire, local laws are necessary to suit the different interests, no single legislature is adequate to the business. All human capacities are limited to a narrow s.p.a.ce, and as no individual is capable of practising a great variety of trades, no single legislature is capable of managing all the variety of national and state concerns. Even if a legislature was capable of it, the business of the judicial department must, from the same cause, be slovenly done. Hence arises the necessity of a division of the business into national and local. Each department ought to have all the powers necessary for executing its own business, under such limitations as tend to secure us from any inequality in the operations of government. I know it is often asked against whom in a government by representation is a bill of rights to secure us? I answer, that such a government is indeed a government by ourselves; but as a just government protects all alike, it is necessary that the sober and industrious part of the community should be defended from the rapacity and violence of the vicious and idle. A bill of rights, therefore, ought to set forth the purposes for which the compact is made, and serves to secure the minority against the usurpation and tyranny of the majority. It is a just observation of his excellency, doctor Adams, in his learned defence of the American const.i.tutions that unbridled pa.s.sions produce the same effect, whether in a king, n.o.bility, or a mob. The experience of all mankind has proved the prevalence of a disposition to use power wantonly. It is therefore as necessary to defend an individual against the majority in a republick as against the king in a monarchy. Our state const.i.tution has wisely guarded this point. The present confederation has also done it.

I confess that I have yet seen no sufficient reason for not amending the confederation, though I have weighed the argument with candour; I think it would be much easier to amend it than the new const.i.tution. But this is a point on which men of very respectable character differ. There is another point in which nearly all agree, and that is, that the new const.i.tution would be better in many respects if it had been differently framed. Here the question is not so much what the amendments ought to be, as in what manner they shall be made; whether they shall be made as conditions of our accepting the const.i.tution, or whether we shall first accept it, and then try to amend it. I can hardly conceive that it should seriously be made a question. If the first question, whether we will receive it as it stands, be negatived, as it undoubtedly ought to be, while the conviction remains that amendments are necessary; the next question will be, what amendments shall be made? Here permit an individual, who glories in being a citizen of Ma.s.sachusetts, and who is anxious that her character may remain undiminished, to propose such articles as appear to him necessary for preserving the rights of the state. He means not to retract anything with regard to the expediency of amending the old confederation, and rejecting the new one totally; but only to make a proposition which he thinks comprehends the general idea of all parties. If the new const.i.tution means no more than the friends of it acknowledge, they certainly can have no objection to affixing a declaration in favor of the rights of states and of citizens, especially as a majority of the states have not yet voted upon it.

"Resolved, that the const.i.tution lately proposed for the United States be received only upon the following conditions:

"1. Congress shall have no power to alter the time, place or manner of elections, nor any authority over elections, otherwise than by fining such state as shall neglect to send its representatives or senators, a sum not exceeding the expense of supporting its representatives or senators one year.

"2. Congress shall not have the power of regulating the intercourse between the states, nor to levy any direct tax on polls or estates, or any excise.

"3. Congress shall not have power to try causes between a state and citizens of another state, nor between citizens of different states; nor to make any laws relative to the transfer of property between those parties, nor any other matter which shall originate in the body of any state.

"4. It shall be left to every state to make and execute its own laws, except laws impairing contracts, which shall not be made at all.

"5. Congress shall not incorporate any trading companies, nor alienate the territory of any state. And no treaty, ordinance or law of the United States shall be valid for these purposes.

"6. Each state shall have the command of its own militia.

"7. No continental army shall come within the limits of any state, other than garrison to guard the publick stores, without the consent of such states in time of peace.

"8. The president shall be chosen annually and shall serve but one year, and shall be chosen successively from the different states, changing every year.

"9. The judicial department shall be confined to cases in which amba.s.sadours are concerned, to cases depending upon treaties, to offences committed upon the high seas, to the capture of prizes, and to cases in which a foreigner residing in some foreign country shall be a party, and an American state or citizen shall be the other party, provided no suit shall be brought upon a state note.

"10. Every state may emit bills of credit without making them a tender, and may coin money, of silver, gold or copper, according to the continental standard.

"11. No powers shall be exercised by Congress or the president but such as are expressly given by this const.i.tution and not excepted against by this declaration. And any officer of the United States offending against an individual state shall be held accountable to such state, as any other citizen would be.

"12. No officer of Congress shall be free from arrest for debt [but] by authority of the state in which the debt shall be due.

"13. Nothing in this const.i.tution shall deprive a citizen of any state of the benefit of the bill of rights established by the const.i.tution of the state in which he shall reside, and such bill of rights shall be considered as valid in any court of the United States where they shall be pleaded.

"14. In all those causes which are triable before the continental courts, the trial by jury shall be held sacred."