Essays on the Constitution of the United States Part 9

Agrippa, XIII.

The Ma.s.sachusetts Gazette, (Number 400)

TUESDAY, JANUARY 14, 1788.

(_Concluded from our last._)

TO THE Ma.s.sACHUSETTS CONVENTION.

_Gentlemen_,

The question then arises, what is the kind of government best adapted to the object of securing our persons and possessions from violence? I answer, a _Federal Republick_. By this kind of government each state reserves to itself the right of making and altering its laws for internal regulation, and the right of executing those laws without any external restraint, while the general concerns of the empire are committed to an a.s.sembly of delegates, each accountable to his own const.i.tuents. This is the happy form under which we live, and which seems to mark us out as a people chosen of G.o.d. No instance can be produced of any other kind of government so stable and energetick as the republican. The objection drawn from the Greek and Roman states does not apply to the question.

Republicanism appears there in its most disadvantageous form. Arts and domestic employments were generally committed to slaves, while war was almost the only business worthy of a citizen. Hence arose their internal dissensions. Still they exhibited proofs of legislative wisdom and judicial integrity hardly to be found among their monarchick neighbors. On the other hand we find Carthage cultivating commerce, and extending her dominions for the long s.p.a.ce of seven centuries, during which term the internal tranquillity was never disturbed by her citizens. Her national power was so respectable, that for a long time it was doubtful whether Carthage or Rome should rule. In the form of their government they bore a strong resemblance to each other. Rome might be reckoned a free state for about four hundred and fifty years. We have then the true line of distinction between those two nations, and a strong proof of the hardy materials which compose a republican government. If there was no other proof, we might with impartial judges risk the issue upon this alone. But our proof rests not here. The present state of Europe, and the vigour and tranquillity of our own governments, after experiencing this form for a century and an half, are decided proofs in favour of those governments which encourage commerce. A comparison of our own country, first with Europe and then with the other parts of the world, will prove, beyond a doubt, that the greatest share of freedom is enjoyed by the citizens, so much more does commerce flourish. The reason is, that every citizen has an influence in making the laws, and thus they are conformed to the general interests of the state; but in every other kind of government they are frequently made in favour of a part of the community at the expense of the rest.

The argument against republicks, as it is derived from the Greek and Roman states, is unfair. It goes on the idea that no other government is subject to be disturbed. As well might we conclude, that a limited monarchy is unstable, because that under the feudal system the n.o.bles frequently made war upon their king, and disturbed the publick peace. We find, however, in practice, that limited monarchy is more friendly to commerce, because more friendly to the rights of the subject, than an absolute government; and that it is more liable to be disturbed than a republick, because less friendly to trade and the rights of individuals. There cannot, from the history of mankind, be produced an instance of rapid growth in extent, in numbers, in arts, and in trade, that will bear any comparison with our country. This is owing to what the friends of the new system, and the enemies of the revolution, for I take them to be nearly the same, would term _our extreme liberty_. Already, have our ships visited every part of the world, and brought us their commodities in greater perfection, and at a more moderate price, than we ever before experienced. The ships of other nations crowd to our ports, seeking an intercourse with us. All the estimates of every party make the balance of trade for the present year to be largely in our favour. Already have some very useful, and some elegant manufactures got established among us, so that our country every day is becoming independent in her resources. Two-thirds of the continental debt has been paid since the war, and we are in alliance with some of the most respectable powers of Europe. The western lands, won from Britain by the sword, are an ample fund for the princ.i.p.al of all our public debts; and every new sale excites that manly pride which is essential to national virtue. All this happiness arises from the freedom of our inst.i.tutions and the limited nature of our government; a government that is respected from principles of affection, and obeyed with alacrity. The sovereigns of the old world are frequently, though surrounded with armies, treated with insult; and the despotick monarchies of the east, are the most fluctuating, oppressive and uncertain governments of any form hitherto invented. These considerations are sufficient to establish the excellence of our own form, and the goodness of our prospects.

Let us now consider the probable effects of a consolidation of the separate states into one ma.s.s; for the new system extends so far. Many ingenious explanations have been given of it; but there is this defect, that they are drawn from maxims of the common law, while the system itself cannot be bound by any such maxims. A legislative a.s.sembly has an inherent right to alter the common law, and to abolish any of its principles, which are not particularly guarded in the const.i.tution. Any system therefore which appoints a legislature, without any reservation of the rights of individuals, surrenders all power in every branch of legislation to the government. The universal practice of every government proves the justness of this remark; for in every doubtful case it is an established rule to decide in favour of authority. The new system is, therefore, in one respect at least, essentially inferior to our state const.i.tutions. There is no bill of rights, and consequently a continental law may controul any of those principles, which we consider at present as sacred; while not one of those points, in which it is said that the separate governments misapply their power, is guarded. Tender acts and the coinage of money stand on the same footing of a consolidation of power. It is a mere fallacy, invented by the deceptive powers of Mr. Wilson, that what rights are not given are reserved. The contrary has already been shewn. But to put this matter of legislation out of all doubt, let us compare together some parts of the book; for being an independent system, this is the only way to ascertain its meaning.

In article III, section 2, it is declared, that "the judicial power shall extend to all cases in law and equity arising under this const.i.tution, the laws of the United States, and treaties made or which shall be made under their authority." Among the cases arising under this new const.i.tution are reckoned, "all controversies between citizens of different states," which include all kinds of civil causes between those parties. The giving Congress a power to appoint courts for such a purpose is as much, there being no stipulation to the contrary, giving them power to legislate for such causes, as giving them a right to raise an army, is giving them a right to direct the operations of the army when raised. But it is not left to implication. The last clause of article I, section 8, expressly gives them power "to make all laws which shall be needful and proper for carrying into execution the foregoing powers, and all other powers vested by this const.i.tution in the government of the United States, or in any department or officer thereof." It is, therefore, as plain as words can make it, that they have a right by this proposed form to legislate for all kinds of causes respecting property between citizens of different states.

That this power extends to all cases between citizens of the same state, is evident from the sixth article, which declares all continental laws and treaties to be the _supreme law_ of the land, and that all state judges are bound thereby, "_anything in the const.i.tution or laws of any state to the contrary notwithstanding_." If this is not binding the judges of the separate states in their own office, by continental rules, it is perfect nonsense.

There is then a complete consolidation of the legislative powers in all cases respecting property. This power extends to all cases between a state and citizens of another state. Hence a citizen, possessed of the notes of another state, may bring his action, and there is no limitation that the execution shall be levied on the publick property of the state; but the property of individuals is liable. This is a foundation for endless confusion and discord. This right to try causes between a state and citizens of another state, involves in it all criminal causes; and a man who has accidentally transgressed the laws of another state, must be transported, with all his witnesses, to a third state, to be tried. He must be ruined to prove his innocence. These are necessary parts of the new system, and it will never be complete till they are reduced to practice. They effectually prove a consolidation of the states, and we have before shewn the ruinous tendency of such a measure.

By sect. 8 of article I, Congress are to have the unlimited right to regulate commerce, external and _internal_, and may therefore create monopolies which have been universally injurious to all the subjects of the countries that have adopted them, excepting the monopolists themselves. They have also the unlimited right to imposts and all kinds of taxes, as well to levy as to collect them. They have indeed very nearly the same powers claimed formerly by the British parliament. Can we have so soon forgot our glorious struggle with that power, as to think a moment of surrendering it now? It makes no difference in principle whether the national a.s.sembly was elected for seven years or for six. In both cases we should vote to great disadvantage, and therefore ought never to agree to such an article. Let us make provision for the payment of the interest of our part of the debt, and we shall be fairly acquitted. Let the fund be an impost on our foreign trade, and we shall encourage our manufactures. But if we surrender the unlimited right to regulate trade, and levy taxes, imposts will oppress our foreign trade for the benefit of other states, while excises and taxes will discourage our internal industry. The right to regulate trade, without any limitations, will, as certainly as it is granted, transfer the trade of this state to Pennsylvania. That will be the seat of business and of wealth, while the extremes of the empire will, like Ireland and Scotland, be drained to fatten an overgrown capital.

Under our present equal advantages, the citizens of this state come in for their full share of commercial profits. Surrender the rights of taxation and commercial regulation, and the landed states at the southward will all be interested in draining our resources; for whatever can be got by impost on our trade and excises on our manufactures, will be considered as so much saved to a state inhabited by planters. All savings of this sort ought surely to be made in favour of our own state; and we ought never to surrender the unlimited powers of revenue and trade to uncommercial people. If we do, the glory of the state from that moment departs, never to return.

The safety of our const.i.tutional rights consists in having the business of governments lodged in different departments, and in having each part well defined. By this means each branch is kept within the const.i.tutional limits. Never was a fairer line of distinction than what may be easily drawn between the continental and state governments. The latter provide for all cases, whether civil or criminal, that can happen ash.o.r.e, because all such causes must arise within the limits of some state. Transactions between citizens may all be fairly included in this idea, even although they should arise in pa.s.sing by water from one state to another. But the intercourse between us and foreign nations properly forms the department of Congress. They should have the power of regulating trade under such limitations as should render their laws equal. They should have the right of war and peace, saving the equality of rights, and the territory of each state. But the power of naturalization and internal regulation should not be given them. To give my scheme a more systematick appearance, I have thrown it into the form of a resolve, which is submitted to your wisdom for amendment, but not as being perfect.

"Resolved, that the form of government proposed by the federal convention, lately held in Philadelphia, be rejected on the part of this commonwealth; and that our delegates in Congress are hereby authorised to propose on the part of this commonwealth, and, if the other states for themselves agree thereto, to sign an article of confederation, as an addition to the present articles, in the form following, provided such agreement be made on or before the first day of January, which will be in the year of our Lord 1790; the said article shall have the same force and effect as if it had been inserted in the original confederation, and is to be construed consistently with the clause in the former articles, which restrains the United States from exercising such powers as are not expressly given.

"XIV. The United States shall have power to regulate, whether by treaty, ordinance or law, the intercourse between these states and foreign dominions and countries, under the following restrictions. No treaty, ordinance, or law shall give a preference to the ports of one state over those of another; nor 2d. impair the territory or internal authority of any state; nor 3d. create any monopolies or exclusive companies; nor 4th.

naturalize any foreigners. All their imposts and prohibitions shall be confined to foreign produce and manufactures imported, and to foreign ships trading in our harbours. All imposts and confiscations shall be to the use of the state where they shall accrue, excepting only such branches of impost as shall be a.s.signed by the separate states to Congress for a fund to defray the interest of their debt, and their current charges. In order the more effectually to execute this and the former articles, Congress shall have authority to appoint courts, supreme and subordinate, with power to try all crimes, not relating to state securities, between any foreign state, or subject of such state, actually residing in a foreign country, and not being an absentee or person who has alienated himself from these states on the one part, and any of the United States or citizens thereof on the other part; also all causes in which foreign amba.s.sadours or other foreign ministers resident here shall be immediately concerned, respecting the jurisdiction or immunities only. And the Congress shall have authority to execute the judgment of such courts by their own affairs. Piracies and felonies committed on the high seas shall also belong to the department of Congress for them to define, try, and punish, in the same manner as the other causes shall be defined, tried, and determined. All the before-mentioned causes shall be tried by jury and in some sea-port town. And it is recommended to the general court at their next meeting to provide and put Congress in possession of funds arising from foreign imports and ships sufficient to defray our share of the present annual expenses of the continent."(25)

Such a resolve, explicitly limiting the powers granted, is the farthest we can proceed with safety. The scheme of accepting the report of the Convention, and amending it afterwards, is merely delusive. There is no intention among those who make the proposition to amend it at all.

Besides, if they have influence enough to get it accepted in its present form, there is no probability that they will consent to an alteration when possessed of an unlimited revenue. It is an excellence in our present confederation, that it is extremely difficult to alter it. An unanimous vote of the states is required. But this newly proposed form is founded in injustice, as it proposes that a fict.i.tious consent of only nine states shall be sufficient to establish it. n.o.body can suppose that the consent of a state is any thing more than a fiction, in the view of the federalists, after the mobbish influence used over the Pennsylvania convention. The two great leaders of the plan, with a modesty of Scotsmen, placed a rabble in the gallery to applaud their speeches, and thus supplied their want of capacity in the argument. Repeatedly were Wilson and M'Kean worsted in the argument by the plain good sense of Findly and Smilie. But reasoning or knowledge had little to do with the federal party. Votes were all they wanted, by whatever means obtained. Means not less criminal have been mentioned among us. But votes that are bought can never justify a treasonable conspiracy. Better, far better, would it be to reject the whole, and remain in possession of present advantages. The authority of Congress to decide disputes between states is sufficient to prevent their recurring to hostility: and their different situation, wants and produce is a sufficient foundation for the most friendly intercourse.

All the arts of delusion and legal chicanery will be used to elude your vigilance, and obtain a majority. But keeping the const.i.tution of the state and the publick interest in view, will be your safety.

[We are obliged, contrary to our intention, to postpone the remainder of Agrippa till our next.]

Agrippa, XIV.

The Ma.s.sachusetts Gazette, (Number 401)

FRIDAY, JANUARY 18, 1788.

(_Concluded from our last._)

TO THE Ma.s.sACHUSETTS CONVENTION.

_Gentlemen_,

To tell us that we ought to look beyond local interests, and judge for the good of the empire, is sapping the foundation of a free state. The first principle of a just government is, that it shall operate equally. The report of the convention is extremely unequal. It takes a larger share of power from some, and from others, a larger share of wealth. The Ma.s.sachusetts will be obliged to pay near three times their present proportion towards continental charges. The proportion is now ascertained by the quant.i.ty of landed property, then it will be by the number of persons. After taking the whole of our standing revenue, by impost and excise, we must still be held to pay a sixth part of the remaining debt.

It is evidently a contrivance to help the other states at our expense. Let us then be upon our guard, and do no more than the present confederation obliges. While we make that our beacon we are safe. It was framed by men of extensive knowledge and enlarged ability, at a time when some of the framers of the new plan were hiding in the forests to secure their precious persons. It was framed by men who were always in favor of a limited government, and whose endeavours Heaven has crowned with success.

It was framed by men whose idols were not power and high life, but industry and const.i.tutional liberty, and who are now in opposition to this new scheme of oppression. Let us then cherish the old confederation like the apple of our eye. Let us confirm it by such limited powers to Congress, and such an enlarged intercourse, founded on commercial and mutual want, with the other states, that our union shall outlast time itself. It is easier to prevent an evil than to cure it. We ought therefore to be cautious of innovations. The intrigues of interested politicians will be used to seduce even the elect. If the vote pa.s.ses in favour of the plan, the const.i.tutional liberty of our country is gone forever. If the plan should be rejected, we always have it in our power, by a fair vote of the people at large, to extend the authority of Congress. This ought to have been the mode pursued. But our antagonists were afraid to risk it. They knew that the plan would not bear examining.

Hence we have seen them insulting all who were in opposition to it, and answering arguments only with abuse. They have threatened and they have insulted the body of the people. But I may venture to appeal to any man of unbia.s.sed judgment, whether his feelings tell him, that there is any danger at all in rejecting the plan. I ask not the palsied or the jaundiced, nor men troubled with bilious or nervous affections, for they can see danger in every thing. But I apply to men who have no personal expectations from a change, and to men in full health. The answer of all such men will be, that never was a better time for deliberation. Let us then, while we have it in our power, secure the happiness and freedom of the present and future ages. To accept of the report of the convention, under the idea that we can alter it when we please, will be sporting with fire-brands, arrows and death. It is a system which must have an army to support it, and there can be no redress but by a civil war. If, as the federalists say, there is a necessity of our receiving it, for heaven's sake let our liberties go without our making a formal surrender. Let us at least have the satisfaction of protesting against it, that our own hearts may not reproach us for the meanness of deserting our dearest interests.

Our present system is attended with the inestimable advantage of preventing unnecessary wars. Foreign influence is a.s.suredly smaller in our publick councils, in proportion as the members are subject to be recalled.

At present, their right to sit continues no longer than their endeavours to secure the publick interest. It is therefore not an object for any foreign power to give a large price for the friendship of a delegate in Congress. If we adopt the new system, every member will depend upon thirty thousand people, mostly scattered over a large extent of country, for his election. Their distance from the seat of government will make it extremely difficult for the electors to get information of his conduct. If he is faithful to his const.i.tuents, his conduct will be misrepresented, in order to defeat his influence at home. Of this we have a recent instance, in the treatment of the dissenting members of the late federal convention.(26) Their fidelity to their const.i.tuents was their whole fault. We may reasonably expect similar conduct to be adopted, when we shall have rendered the friendship of the members valuable to foreign powers, by giving them a secure seat in Congress. We shall too have all the intrigues, cabals and bribery practiced, which are usual at elections in Great Britain. We shall see and lament the want of publick virtue; and we shall see ourselves bought at a publick market, in order to be sold again to the highest bidder. We must be involved in all the quarrels of European powers, and oppressed with expense, merely for the sake of being like the nations round about us. Let us then, with the spirit of freemen, reject the offered system, and treat as it deserves the proposition of men who have departed from their commission; and let us deliver to the rising generation the liberty purchased with our blood.

AGRIPPA.

Agrippa, XV.

The Ma.s.sachusetts Gazette, (Number 402)

TUESDAY, JANUARY 22, 1788.

TO THE Ma.s.sACHUSETTS CONVENTION.

_Gentlemen_,

Truly deplorable, in point of argument, must be that cause, in whose defence persons of acknowledged learning and ability can say nothing pertinent. When they undertake to prove that the person elected is the safest person in the world to control the exercise of the elective powers of his const.i.tuents, we know what dependence is to be had upon their reasonings. Yet we have seen attempts to shew, that the fourth section of the proposed const.i.tution is an additional security to our rights. It may be such in the view of a Rhode Island family (I think that state is quoted) who have been of some time in the minority: but it is extraordinary that an enlightened character(27) in the Ma.s.sachusetts [convention] should undertake to prove, that, from a single instance of abuse in one state, another state ought to resign its liberty. Can an [sic] man, in the free exercise of his reason, suppose, that he is perfectly represented in the legislature, when that legislature may at pleasure alter the time, manner and place of election? By altering the time they may continue a representive during his whole life; by altering the manner, they may fill up the vacancies by their own votes without the consent of the people; and by altering the place, all the elections may be made at the seat of the federal government. Of all the powers of government perhaps this is the most improper to be surrendered. Such an article at once destroys the whole check which the const.i.tuents have upon their rulers. I should be less zealous upon this subject, if the power had not been often abused. The senate of Venice, the regencies of Holland, and the British Parliament have all abused it. The last have not yet perpetuated themselves; but they have availed themselves repeatedly of popular commotions to continue in power. Even at this day we find attempts to vindicate the usurpation by which they continued themselves from three to seven years. All the attempts, and many have been made, to return to triennial elections, have proved abortive. These instances are abundantly sufficient to shew with what jealousy this right ought to be guarded. No sovereign on earth need be afraid to declare his crown elective, while the possessor has the right to regulate the time, manner, and place of election.

It is vain to tell us, that the proposed government guarantees to each state a republican form. Republicks are divided into democraticks, and aristocraticks. The establishment of an order of n.o.bles, in whom should reside all the power of the state, would be an aristocratick republick.

Such has been for five centuries the government of Venice, in which all the energies of government, as well as of individuals, have been cramped by a distressing jealousy that the rulers have of each other. There is nothing of that generous, manly confidence that we see in the democratick republicks of our own country. It is a government of force, attended with perpetual fear of that force. In Great Britain, since the lengthening of parliaments, all our accounts agree, that their elections are a continued scene of bribery, riot and tumult; often a scene of murder. These are the consequences of choosing seldom, and or extensive districts. When the term is short n.o.body will give an high price for a seat. It is an insufficient answer to these objections to say, that there is no power of government but may sometimes be applied to bad purposes. Such a power is of no value unless it is applied to a bad purpose. It ought always to remain with the people. The framers of our state const.i.tution were so jealous of this right, that they fixed the days for election, meeting and dissolving of the legislature, and of the other officers of government. In the proposed const.i.tution not one of these points is guarded, though more numerous and extensive powers are given them than to any state legislature upon the continent. For Congress is at present possessed of the direction of the national force, and most other national powers, and in addition to them are to be vested with all the powers of the individual states, unrestrained by any declarations of right. If these things are for the security of our const.i.tutional liberty, I trust we shall soon see an attempt to prove that the government by an army will be more friendly to liberty than a system founded in consent, and that five states will make a majority of thirteen. The powers of controuling elections, of creating exclusive companies in trade, of internal legislation and taxations ought, upon no account, to be surrendered. I know it is a common complaint, that Congress want more power. But where is the limited government that does not want it? Ambition is in a governour what money is to a misar [sic]-.... he can never acc.u.mulate enough. But it is as true in politicks as in morals, he that is unfaithful in little, will be unfaithful also in much. He who will not exercise the powers he has, will never properly use more extensive powers. The framing entirely new systems, is a work that requires vast attention; and it is much easier to guard an old one. It is infinitely better to reject one that is unfriendly to liberty, and rest for a while satisfied with a system that is in some measure defective, than to set up a government unfriendly to the rights of states, and to the rights of individuals-one that is undefined in its powers and operations.

Such is the government proposed by the federal convention, and such, we trust, you will have the wisdom and firmness to reject.

AGRIPPA.

Agrippa, XV.

The Ma.s.sachusetts Gazette, (Number 403)

FRIDAY, JANUARY 25, 1788.