The Convention met according to adjournment, and immediately resolved itself into a committee of the whole Convention, to take into further consideration the proposed Constitution of government for the United States.
The second section of the second article read.
Mr. Iredell—Mr. Chairman, This part of the Constitution has been much objected to. The office of superintending the execution of the laws of the union, is an office of the utmost importance. It is of the greatest consequence to the happiness of the people of America, that the person to whom this great trust is delegated should be worthy of it. It would require a man of abilities and experience: It would also require a man who possessed in a high degree the confidence of his country. This being the case, it would be a great defect in forming a Constitution for the United States, if it was so constructed that by any accident an improper person could have a chance to obtain that office. The Committee will recollect, that the President is to be elected by Electors appointed by each state, according to the number of Senators and Representatives to which the state may be entitled in the Congress: That they are to meet on the same day throughout all the states, and vote by ballot for two persons, one of whom shall not be an inhabitant of the same state with themselves. These votes are afterwards to be transmitted under seal to the seat of the general government. The person who has the greatest number of votes, if it be a majority of the whole, will be the President. If more than one have a majority, and equal votes, the House of Representatives are to choose one of them. If none have a majority of votes, then the House of Representatives are to choose which of the persons they think proper, out of the five highest on the list. The person having the next greatest number of votes is to be the Vice President, unless two or more should have equal votes, in which case the Senate is to choose one of them for Vice-President. If I recollect right, these are the principal characteristics. Thus, Sir, two men will be in office at the same time. The President, who possesses in the highest degree the confidence of his country; and the Vice-President, who is thought to be the next person in the union most fit to perform this trust. Here, Sir, every contingency is provided for. No faction or combination can bring about the election. It is probable, that the choice will always fall upon a man of experienced abilities and fidelity. In all human probability, no better mode of election could have been devised.
The rest of the first section read without any observations.
Mr. Iredell—Mr. Chairman, I was in hopes that some other gentleman would have spoken to this clause. It conveys very important powers, and ought not to be passed by. I beg leave in as few words as possible to speak my sentiments upon it. I believe most of the Governors of the different states, have powers similar to those of the President. In almost every country the Executive has the command of the military forces. From the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, dispatch and decision which are necessary in military operations, can only be expected from one person. The President therefore is to command the military forces of the United States, and this power I think a proper one; at the same time it will be found to be sufficiently guarded. A very material difference may be observed between this power, and the authority of the King of Great-Britain under similar circumstances. The King of Great-Britain is not only the Commander in Chief of the land and naval forces, but has power in time of war to raise fleets and armies. He has also authority to declare war. The President has not the power of declaring war by his own authority, nor that of raising fleets and armies. These powers are vested in other hands. The power declaring war is expressly given to Congress, that is, to the two branches of the Legislature, the Senate composed of Representatives of the state Legislatures, the House of Representatives deputed by the people at large. They have also expressly delegated to them, the powers of raising and supporting armies, and of providing and maintaining a navy.
With regard to the militia, it must be observed, that though he has the command of them when called into the actual service of the United States, yet he has not the power of calling them out. The power of calling them out, is vested in Congress, for the purpose of executing the laws of the union. When the militia are called out for any purpose, some person must command them; and who so proper as that person who has the best evidence of his possessing the general confidence of the people? I trust therefore, that the power of commanding the militia when called forth into the actual service of the United States, will not be objected to.
The next part which says, "That he may require the opinion in writing of the principal officers," is in some degree substituted for a Council. He is only to consult them if he thinks proper. Their opinion is to be given him in writing. By this means he will be aided by their intelligence, and the necessity of their opinions being in writing, will render them more cautious in giving them, and make them responsible should they give advice manifestly improper. This does not diminish the responsibility of the President himself. They might otherwise have colluded, and opinions have been given too much under his influence.
It has been the opinion of many gentlemen, that the President should have a Council. This opinion probably has been derived from the example in England. It would be very proper for every gentleman to consider attentively, whether that example ought to be imitated by us. Altho' it be a respectable example, yet in my opinion very satisfactory reasons can be assigned for a departure from it in this Constitution.
It was very difficult, immediately on our separation from Great-Britain, to disengage ourselves entirely from ideas of government we had been used to. We had been accustomed to a Council under the old government, and took it for granted we ought to have one under the new. But examples ought not to be implicitly followed; and the reasons which prevail in Great-Britain for a Council, do not apply equally to us. In that country the executive authority is vested in a magistrate who holds it by birth-right. He has great powers and prerogatives; and it is a constitutional maxim, that he can do no wrong. We have experienced that he can do wrong, yet no man can say so in his own country. There are no courts to try him for any crimes; nor is there any constitutional method of depriving him of his throne. If he loses it, it must be by a general resistance of his people contrary to forms of law, as at the revolution which took place about a hundred years ago. It is therefore of the utmost moment in that country, that whoever is the instrument of any act of government should be personally responsible for it, since the King is not; and for the same reason, that no act of government should be exercised but by the instrumentality of some person, who can be accountable for it. Every thing therefore that the King does must be by some advice, and the adviser of course answerable. Under our Constitution we are much happier. No man has an authority to injure another with impunity. No man is better than his fellow-citizens, nor can pretend to any superiority over the meanest man in the country. IF the President does a single act, by which the people are prejudiced, he is punishable himself, and no other man merely to screen him. If he commits any misdemeanor in office, he is impeachable, removable from office, and incapacitated to hold any office of honour, trust or profit. If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life. This being the case, there is not the same reason here for having a Council, which exists in England. It is, however, much to be desired, that a man who has such extensive and important business to perform, should have the means of some assistance to enable him to discharge his arduous employment. The advice of the principal executive officers, which he can at all times command, will in my opinion answer this valuable purpose. He can at no time want advice, if he desires it, as the principal officers will always be on the spot. Those officers from their abilities and experience, will probably be able to give as good, if not better advice, than any Counsellors would do; and the solemnity of the advice in writing, which must be preserved, would be a great check upon them.
Besides these considerations, it was difficult for the Convention to prepare a Council that would be unexceptionable. That jealousy which naturally exists between the different states, enhanced this difficulty. If a few Counsellors were to be chosen from the northern, southern or middle states, or from a few states only, undue preference might be given to those particular states from which they should come. If to avoid this difficulty, one Counsellor should be sent from each state, this would require great expence, which is a consideration at this time of much moment, especially as it is probable, that by the method proposed, the President may be equally well advised without any expence at all.
We ought also to consider, that had he a Council, by whose advice he was bound to act, his responsibility in all such cases must be destroyed. You surely would not oblige him to follow their advice, and punish him for obeying it. If called upon on any occasion of dislike, it would be natural for him to say, "You know my Council are men of integrity and ability: I could not act against their opinions, though I confess my own was contrary to theirs." This, Sir, would be pernicious. In such a situation, he might easily combine with his Council, and it might be impossible to fix a fact upon him. It would be difficult often to know, whether the President or Counsellors were most to blame. A thousand plausible excuses might be made, which would escape detection. But the method proposed in the Constitution creates no such embarrassment. It is plain and open. And the President will personally have the credit of good, or the censure of bad measures; since, though he may ask advice, he is to use his own judgment in following or rejecting it. For all these reasons I am clearly of opinion, that the clause is better as it stands than if the President were to have a Council. I think every good that can be derived from the institution of a Council, may be expected from the advice of these officers, without its being liable to the disadvantages to which it appears to me the institution of a Council would be.
Another power that he has is to grant pardons, except in cases of impeachment. I believe it is the sense of a great part of America, that this power should be exercised by their Governors. It is in several states on the same footing that it is here. It is the genius of a republican government, that the laws should be rigidly executed without the influence of favour or ill-will: That when a man commits a crime, however powerful he or his friends may be, yet he should be punished for it; and on the other hand, though he should be universally hated by his country, his real guilt alone as to the particular charge is to operate against him. This strict and scrupulous observance of justice is proper in all governments, but it is particularly indispensable in a republican one; because in such a government, the law is superior to every man, and no man is superior to another. But though this general principle be unquestionable, surely there is no gentleman in the committee, who is not aware that there ought to be exceptions to it; because there may be many instances, where though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy. It is impossible for any general law to foresee and provide for all possible cases that may arise, and therefore an inflexible adherence to it in every instance, might frequently be the cause of very great injustice. For this reason, such a power ought to exist somewhere; and where could it be more properly vested, than in a man who had received such strong proofs of his possessing the highest confidence of the people? This power however only refers to offences against the United States, and not against particular states. Another reason for the President possessing this authority, is this: It is often necessary to convict a man by means of his accomplices: We have sufficient experience of that in this country. A criminal would often go unpunished, were not this method to be pursued against him. In my opinion, till an accomplice's own danger is removed, his evidence ought to be regarded with great diffidence. If in civil causes of property, a witness must be entirely disinterested, how much more proper is it he should be so in cases of life and death! This power is naturally vested in the President, because it is his duty to watch over the public safety, and as that may frequently require the evidence of accomplices to bring great offenders to justice, he ought to be entrusted with the most effectual means of procuring it.
I beg leave farther to observe, that for another reason I think there is a propriety in leaving this power to the general discretion of the executive magistrate, rather than to fetter it in any manner which has been proposed. It may happen, that many men, upon plausible pretences, may be seduced into very dangerous measures against their country. They may aim by an insurrection to redress imaginary grievances, at the same time believing, upon false suggestions, that their exertions are necessary to save their country from destruction. Upon cool reflection however, they possibly are convinced of their error, and clearly see thro' the treachery and villainy of their leaders. In this situation, if the President possessed the power of pardoning, they probably would immediately throw themselves on the equity of the government, and the whole body be peaceably broke up. Thus, at a critical moment, the President might prevent perhaps a civil war. But if there was no authority to pardon, in that delicate exigency, what would be the consequence? The principle of self-preservation would prevent their parting. Would it not be natural for them to say, "We shall be punished if we disband. Were we sure of mercy we would peaceably part. But we know not that there is any chance of this. We may as well meet one kind of death as another. We may as well die in the field as at the gallows." I therefore submit to the committee, if this power be not highly necessary for such a purpose. We have seen a happy instance of the good effect of such an exercise of mercy in the state of Massachusetts, where very lately there was so formidable an insurrection. I believe a great majority of the insurgents were drawn into it by false artifices. They at length saw their error, and were willing to disband. Government, by a wise exercise of lenity, after having shewn its power, generally granted a pardon; and the whole party were dispersed. There is now as much peace in that country as in any state in the union.
A particular instance which occurs to me, shews the utility of this power very strongly. Suppose we were involved in war. It would be then necessary to know the designs of the enemy. This kind of knowledge cannot always be procured but by means of spies, a set of wretches whom all nations despise, but whom all employ; and as they would assuredly be used against us, a principle of self-defence would urge and justify the use of them on our part. Suppose therefore the President could prevail upon a man of some importance to go over to the enemy, in order to give him secret information of his measures. He goes off privately to the enemy. He feigns resentment against his country for some ill usage, either real or pretended, and is received possibly into favour and confidence. The people would not know the purpose for which he was employed. In the mean time he secretly informs the President of the enemy's designs, and by this means, perhaps those designs are counteracted, and the country saved from destruction. After his business is executed, he returns into his own country, where the people, not knowing he had rendered them any service, are naturally exasperated against him for his supposed treason. I would ask any gentleman whether the President ought not to have the power of pardoning this man. Suppose the concurrence of the Senate, or any other body was necessary, would this obnoxious person be properly safe? We know in every country there is a strong prejudice against the executive authority. If a prejudice of this kind, on such an occasion, prevailed against the President, the President might be suspected of being influenced by corrupt motives, and the application in favour of this man be rejected. Such a thing might very possibly happen when the prejudices of party were strong, and therefore no man so clearly entitled as in the case I have supposed, ought to have his life exposed to so hazardous a contingency.
The power of impeachment is given by this Constitution, to bring great offenders to punishment. It is calculated to bring them to punishment for crimes which it is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against the government. This power is lodged in those who represent the great body of the people, because the occasion for its exercise will arise from acts of great injury to the community, and the objects of it may be such as cannot be easily reached by an ordinary tribunal. The trial belongs to the Senate, left an inferior tribunal should be too much awed by so powerful an accuser. After a trial thus solemnly conducted, it is not probable that it would happen once in a thousand times, that a man actually convicted, would be entitled to mercy; and if the President had the power of pardoning in such a case, this great check upon high officers of state would lose much of its influence. It seems therefore proper, that the general power of pardoning should be abridged in this particular instance. The punishment annexed to conviction on impeachment, can only be removal from office, and disqualification to hold any place of honour, trust or profit. But the person convicted is further liable to a trial at common law, and may receive such common law punishment as belongs to a description of such offences, if it be one punishable by that law. I hope, for the reasons I have stated, that the whole of this clause will be approved by the committee. The regulations altogether, in my opinion, are as wisely contrived as they could be. It is impossible for imperfect beings to form a perfect system. If the present one may be productive of possible inconveniences, we are not to reject it for that reason, but inquire whether any other system could be devised which would be attended with fewer inconveniences, in proportion to the advantages resulting. But we ought to be exceedingly attentive in examining, and still more cautious in deciding, lest we should condemn what may be worthy of applause, or approve of what may be exceptionable. I hope, that in the explanation of this clause, I have not improperly taken up the time of the committee.
Mr. Miller acknowledged, that the explanation of this clause by the Member from Edenton, had obviated some objections which he had had to it: But still he could not entirely approve of it. He could not see the necessity of vesting this power in the President. He thought that his influence would be too great in the country, and particularly over the military, by being the Commander in Chief of the army, navy and militia. He thought he could too easily abuse such extensive powers; and was of opinion, that Congress ought to have power to direct the motions of the army. He considered it as a defect in the Constitution, that it was not expressly provided that Congress should have the direction of the motions of the army.
Mr. Spaight answered, that it was true that the command of the army and navy was given to the President: But that Congress, who had the power of raising armies, could certainly prevent any abuse of that authority in the President. That they alone had the means of supporting armies, and that the President was impeachable if he in any manner abused his trust. He was surprised that any objection should be made to giving the command of the army to one man: That it was well known, that the direction of any army could not be properly exercised by a numerous body of men: That Congress had in the last war given the exclusive command of the army to the Commander in Chief; and that if they had not done so, perhaps the independence of America would not have been established.
Mr. Porter: Mr. Chairman, There is a power vested in the Senate and President to make treaties, which shall be the supreme law of the land. Which among us can call them to account? I always thought that there could no proper exercise of power, without the suffrage of the people: Yet the House of Representatives has no power to intermeddle with treaties. The President and seven Senators, as nearly as I can remember, can make a treaty which will be of great advantage to the northern states, and equal injury to the southern states. They might give up the rivers and territory of the southern states: Yet in the preamble of the Constitution, they say, all the People have done it. I should be glad to know what power there is of calling the President and Senate to account.
Mr. Spaight answered, that under the Confederation, two-thirds of the states might make treaties. That if the Senators from all the states attended when a treaty was about to be made, two-thirds of the states would have a voice in its formation. He added, that he would be glad to ask the gentleman, what mode there was of calling the present Congress to account.
Mr. Porter repeated his objection. He hoped that gentlemen would not impose on the House. That the President could make treaties with two-thirds of the Senate: That the President in that case, voted rather in a legislative, than in an executive capacity, which he thought impolitic.
Governor Johnston—Mr. Chairman, In my opinion, if there be any difference between this Constitution and the Confederation, with respect to treaties, the Constitution is more safe than the Confederation. We know that two Members from each state, have a right by the Confederation to give the vote of that state, and two-thirds of the states have a right also to make treaties. By this Constitution two-thirds of the Senators cannot make treaties without the concurrence of the President. Here is then an additional guard. The calculation that seven or eight Senators, with the President, can make treaties, is totally erroneous. Fourteen is a quorum. Two-thirds of which are ten. It is upon the improbable supposition that they will not attend, that the objection is founded, that ten men with the President can make treaties. Can it be reasonably supposed that they will not attend when the most important business is agitated; when the interests of their respective states are most immediately affected.
Mr. Maclaine observed, that the gentleman was out of order with his objection. That they had not yet come to the clause which enables the Senate and President to make treaties.
The second clause of the second section read.
Mr. Spencer—Mr. Chairman, I rise to declare my disapprobation of this likewise. It is an essential article in our Constitution, that the legislative, the executive and the supreme judicial powers of government, ought to be forever separate and distinct from each other. The Senate in the proposed government of the United States, are possessed of the legislative authority in conjunction with the House of Representatives. They are likewise possessed of the sole power of trying all impeachments, which not being restrained to the officers of the United States, may be intended to include all the officers of the several states in the union. And by this clause they possess the chief of the executive power—they are in effect to form treaties, which are to be the law of the land, and they have obviously in effect the appointment of all the officers of the United States; the President may nominate, but they have a negative upon his nomination, till he has exhausted the number of those he wishes to be appointed: He will be obliged finally to acquiesce in the appointment of those which the Senate shall nominate, or else no appointment will take place. Hence it is easy to perceive, that the President, in order to do any business, or to answer any purpose in his department of his office, and to keep himself out of perpetual hot water, will be under a necessity to form a connection with that powerful body, and be contented to put himself at the head of the leading members who compose it. I do not expect at this day, that the outline and organization of this proposed government will be materially altered. But I cannot but be of opinion, that the government would have been infinitely better and more secure, if the President had been provided with a standing Council, composed of one Member from each of the states, the duration of whose office might have been the same as that of the President's office, or for any other period that might have been thought more proper. For it can hardly be supposed, that if two Senators can be sent from each state, who are fit to give counsel to the President, that one such cannot be found in each state, qualified for that purpose. Upon this plan, one half the expence of the Senate, as a standing Council to the President in the recess of Congress, would evidently be saved; each state would have equal weight in this Council, as it has now in the Senate: And what renders this plan the more eligible is, that two very important consequences would result from it, which cannot result from the present plan. The first is, that the whole executive department, being separate and distinct from that of the legislative and judicial, would be amendable to the justice of the land—the President and his Council, or either or any of them, might be impeached, tried and condemned for any misdemeanor in office. Whereas on the present plan proposed, the Senate who are to advise the President, and who in effect are possessed of the chief executive power, let their conduct be what it will, are not amenable to the public justice of their country; if they may be impeached, there is no tribunal invested with jurisdiction to try them. It is true that the proposed Constitution provides, that when the President is tried the Chief-Justice shall preside. But I take this to be very little more than a farce. What can the Senate try him for? For doing that which they have advised him to do, and which without their advice he would not have done. Except what he may do in a military capacity, when I presume he will be entitled to be tried by a court-martial of General officers, he can do nothing in the executive department without the advice of the Senate, unless it be to grant pardons, and adjourn the two Houses of Congress to some day to which they cannot agree to adjourn themselves, probably to some term that may be convenient to the leading Members of the Senate. I cannot conceive therefore, that the President can ever be tried by the Senate with any effect, or to any purpose, for any misdemeanor in his office, unless it should extend to high treason, or unless they should wish to fix the odium of any measure on him, in order to exculpate themselves; the latter of which I cannot suppose will ever happen.
Another important consequence of the plan I wish had taken place, is, that the office of the President being thereby unconnected with that of the legislative, as well as the judicial, he would enjoy that independence which is necessary to form the intended check upon the acts passed by the Legislature before they obtain the sanction of laws. But on the present plan, from the necessary connection of the President's office with that of the Senate, I have little ground to hope, that his firmness will long prevail against the overbearing power and influence of the Senate, so far as to answer the purpose of any considerable check upon the acts they may think proper to pass in conjunction with the House of Representatives. For he will soon find, that unless he inclines to compound with them, they can easily hinder and controul him in the principal articles of his office. But if nothing else could be said in favour of the plan of a standing Council to the President, independent of the Senate, the dividing the power of the latter would be sufficient to recommend it; it being of the utmost importance toward the security of the government, and the liberties of the citizens under it. For I think it must be obvious to every unprejudiced mind, that the combining in the Senate, the power of legislation with a controuling share in the appointment of all the officers of the United States, except those chosen by the people, and the power of trying all impeachments that may be found against such officers, invests the Senate at once with such an enormity of power, and with such an overbearing and uncontroulable influence, as is incompatible with every idea of safety to the liberties of a free country, and is calculated to swallow up all other powers, and to render that body a despotic aristocracy.
Mr. Porter recommended the most serious consideration when they were about to give away power. That they were not only about to give away power to legislate or make laws of a supreme nature, and to make treaties, which might sacrifice the most valuable interests of the community; but to give a power to the general government to drag the inhabitants to any part of the world as long as they pleased. That they ought not to put it in the power of any man or any set of men to do so; and that the representation was defective, being not a substantial immediate representation. He observed that as treaties were the supreme law of the land, the House of Representatives ought to have a vote in making them, as well as in passing them.
Mr. J. M'Dowall—Mr. Chairman, Permit me, Sir, to make a few observations, to shew how improper it is to place so much power in so few men, without any responsibility whatever. Let us consider what number of them is necessary to transact the most important business. Two-thirds of the members present, with the President, can make a treaty. Fourteen of them are a quorum, two-thirds of which are ten. These ten may make treaties and alliances. They may involve us in any difficulties, and dispose of us in any manner they please. Nay eight is a majority of a quorum, and can do every thing but make treaties. How unsafe are we, when we have no power of bringing those to an account. It is absurd to try them before their own body. Our lives and property are in the hands of eight or nine men. Will these gentlemen entrust their rights in this manner?
Mr. Davie—Mr. Chairman, Altho' treaties are mere conventional acts between the contracting parties, yet by the law of nations they are the supreme law of the land to their respective citizens or subjects. All civilized nations have concurred in considering them as paramount to an ordinary act of legislation. This concurrence is founded on the reciprocal convenience and solid advantages arising from it. A due observance of treaties makes nations more friendly to each other, and is the only means of rendering less frequent those mutual hostilities, which tend to depopulate and ruin contending nations. It extends and facilitates that commercial intercourse, which founded on the universal protection of private property, has in a measure made the world one nation.
The power of making treaties has in all countries and governments been placed in the executive departments. This has not only been grounded on the necessity and reason arising from that degree of secrecy, design and dispatch, which are always necessary in negociations between nations, but to prevent their being impeded, or carried into effect, by the violence, animosity and heat of parties, which too often infect numerous bodies. Both of these reasons preponderated in the foundation of this part of the system. It is true, Sir, that the late treaty between the United States and Great-Britain, has not, in some of the states, been held as the supreme law of the land. Even in this state an act of Assembly passed to declare its validity. But no doubt that treaty was the supreme law of the land without the sanction of the Assembly; because, by the Confederation, Congress had power to make treaties. It was one of those original rights of sovereignty which were vested in them; and it was not the deficiency of constitutional authority in Congress to make treaties, that produced the necessity of a law to declare their validity; but it was owing to the intire imbecility of the Confederation. On the principle of the propriety of vesting this power in the executive department, it would seem that the whole power of making treaties ought to be left to the President, who, being elected by the people of the United States at large, will have their general interest at heart. But that jealousy of executive power which has shewn itself so strongly in all the American governments, would not admit this improvement. Interest, Sir, has a most powerful influence over the human mind, and is the basis on which all the transactions of mankind are built. It was mentioned before, that the extreme jealousy of the little states, and between the commercial states and the non-importing states, produced the necessity of giving an equality of suffrage to the senate. The same causes made it indispenable to give to the Senators, as Representatives of states, the power of making, or rather ratifying, treaties. Although it militates against every idea of just proportion, that the little state of Rhode-Island should have the same suffrage with Virginia, or the great commonwealth of Massachusetts; yet the small states would not consent to confederate, without an equal voice in the formation of treaties. Without the equality, they apprehended that their interest would be neglected or sacrificed in negociations. This difficulty could not be got over. It arose from the unalterable nature of things. Every man was convinced of the inflexibility of the little states in this point: It therefore became necessary to give them an absolute equality in making treaties.
The learned gentleman on my right (Mr. Spencer) after saying that this was an enormous power, and that blending the different branches of government was dangerous, said, that such accumulated powers were inadmissible and contrary to all the maxims of writers. It is true, the great Montesquieu and several other writers, have laid it down as a maxim not to be departed from, that the legislative, executive and judicial powers, should be separate and distinct. But the idea that these gentlemen had in view, has been misconceived or misrepresented. An absolute and complete separation is not meant by them. It is impossible to form a government upon these principles. Those states who had made an absolute separation of these three powers their leading principle, have been obliged to depart from it. It is a principle in fact, which is not to be found in any of the state governments. In the government of New-York, the Executive and Judiciary have a negative similar to that of the President of the United States. This is a junction of all the three powers, and has been attended with the most happy effects. In this state and most of the others, the executive and judicial powers are dependent on the Legislature. Has not the Legislature of this state the power of appointing the Judges? Is it not in their power also to fix their compensation? What independence can there be in persons who are obliged to be obsequious and cringing for their office and salary? Are not our Judges dependent on the Legislature for every morsel they eat? It is not difficult to discern what effect this may have on human nature. The meaning of this maxim I take to be this, that the whole legislative, executive, and judicial powers, should not be exclusively blended in any one particular instance. The Senate try impeachments. This is their only judicial cognizance. As to the ordinary objects of a judiciary, such as the decision of controversies, the trial of criminals, &c the judiciary is perfectly separate and distinct from the legislative and executive branches. The House of Lords in England, have great judicial powers, yet this is not considered as a blemish in their Constitution. Why? Because they have not the whole legislative power. Montesquieu, at the same time that he laid down this maxim, was writing in praise of the British government. At the very time he recommended this distinction of powers, he passed the highest eulogium on a Constitution wherein they were all partially blended. So that the meaning of the maxim, as laid down by him and other writers, must clearly be, that these three branches must not be entirely blended in one body. And this system before you, comes up to the maxim more completely than the favourite government of Montesquieu. The gentleman from Anson has said, that the Senate destroys the independence of the President, because they must confirm the nomination of officers. The necessity of their interfering in the appointment of officers, resulted from the same reason which produced the equality of suffrage. In other countries, the Executive or Chief Magistrate alone nominates and appoints officers. The small states would not agree that the House of Representatives should have a voice in the appointment to offices; and the extreme jealousy of all the states, would not give it to the President alone. In my opinion, it is more proper as it is than it would be in either of those cases. The interest of each state will be equally attended to in appointments, and the choice will be more judicious by the junction of the Senate to the President. Except in the appointments of officers, and making of treaties, he is not joined with them in any instance. He is perfectly independent of them in his election. It is impossible for human ingenuity to devise any mode of election better calculated to exclude undue influence. He is chosen by Electors appointed by the people. He is elected on the same day in every state, so that there can be no possible combination between the Electors. The affections of the people can be the only influence to procure his election. If he make a judicious nomination, is it to be presumed that the Senate will not concur in it? Is it to be supposed the Legislatures will choose the most depraved men in the states to represent them in Congress? Should he nominate unworthy characters, can it be reasonably concluded that they will confirm it? He then says, that the Senators will have influence to get themselves re elected, nay, that they will be perpetually elected. I have very little apprehension on this ground. I take it for granted, that the man who is once a Senator, will very probably be out for the next six years. Legislative influence changes—Other persons rise, who have particular connections to advance them to office. If the Senators stay six years out of the state governments, their influence will be greatly diminished. It will be impossible for the most influential character to get himself re-elected after being out of the country so long. There will be an entire change in six years. Such futile objections I fear proceed from an aversion to any general system. The same learned gentleman says, that it would be better, were a Council consisting of one from every state, substituted to the Senate. Another gentleman has objected to the smallness of this number. This shews the impossibility of satisfying all mens minds. I beg this committee to place these two objections together, and see their glaring inconsistency. If there were thirteen Counsellors, in the manner he proposes, it would destroy the responsibility of the President. He must have acted also with a majority of them. A majority of them is seven, which would be a quorum—a majority of these would be four, and every act to which the concurrence of the Senate and the President is necessary, could be decided by these four. Nay, less than a majority, even one would suffice to enable them to do the most important acts. This, Sir, would be the effect of this Council. The dearest interests of the community would be trusted to two men. Had this been the case, the loudest clamours would have been raised, with justice, against the Constitution, and these gentlemen would have loaded their own proposition with the most virulent abuse.
On a due consideration of this clause, it appears that this power could not have been lodged as safely any where else as where it is. The honourable gentleman (Mr. M'Dowall) has spoken of a consolidation in this government. That is a very strange inconsistency, when he points out at the same time, the necessity of lodging the power of making treaties, with the Representatives, where the idea of a consolidation can alone exist; and when he objects to placing it in the Senate, where the federal principle is completely preserved. As the Senate represents the sovereignty of the states, whatever might affect the states in their political capacity, ought to be left to them. This is a certain means of preventing a consolidation. How extremely absurd is it to call that disposition of power a consolidation of the states, which must to all eternity prevent it? I have only to add the principle upon which the General Convention went.—That the power of making treaties could no where be so safely lodged as in the President and Senate; and the extreme jealousy subsisting between some of the states, would not admit of it elsewhere. If any man will examine the operation of that jealousy, in his own breast, as a citizen of North-Carolina, he will soon feel the inflexibility that results from it, and perhaps be induced to acknowledge the propriety of this arrangement.
Mr. M'Dowall declared that he was of the same opinion as before, and that he believed the observations which the gentleman had made on the apparent inconsistency of his remarks, would have very little weight with the committee. That giving such extensive powers to so few men in the Senate, was extremely dangerous; and that he was not the more reconciled to it from its being brought about by the inflexibility of the small, pitiful states to the north. He supposed, that eight Members in the Senate from those states, with the President, might do the most important acts.
Mr. Spaight—Mr. Chairman, The gentleman objects to the smallness of the number, and to their want of responsibility. He argues as if the Senators were never to attend, and as if the northern Senators were to attend more regularly than those from the south. Nothing can be more unreasonable than to suppose, that they will be absent on the most important occasions. What responsibility is there in the present Congress that is not in the Senate? What responsibility is there in our state Legislature? The Senators are as responsible as the Members of our Legislature. It is to be observed, that though the Senators are not impeachable, yet the President is. He may be impeached and punished for giving his consent to a treaty, whereby the interest of the community is manifestly sacrificed.
Mr. Spencer—Mr. Chairman, The worthy gentleman from Halifax has endeavoured to obviate my objections against the want of responsibility in the President and Senators, and against the extent of their power. He has not removed my objections. It is totally out of their power to shew any degree of responsibility. The Executive is tried by his advisers. The reasons I urged are so cogent and strong with me, that I cannot approve of this clause. I can see nothing of any weight against them. (Here Mr. Spencer spoke so low that he could not be distinctly heard.) I would not give the President and Senators power to make treaties, because it destroys their responsibility. If a bad treaty be made, and he be impeached for it, the Senate will not pronounce sentence against him, because they advised him to make it. If they had legislative power only, it would be unexceptionable; but when they have the appointment of officers, and such extensive executive powers, it gives them such weight as in inadmissible. Notwithstanding what gentlemen have said in defence of the clause, the influence of the Senate still remains equally formidable to me. The President can do nothing unless they concur with him. In order to obtain their concurrence, he will compromise with them. Had there been such a Council as I mentioned, to advise him, the Senate would not have had such dangerous influence, and the responsibility of the President would have been secured. This seems obviously clear to be the case.
Mr. Porter—Mr. Chairman, I only rise to make one observation on what the gentleman has said. He told us, that if the Senators were not amenable the President was—I beg leave to ask the gentleman, if it be not inconsistent that they should punish the President, whom they advised themselves to do what he is impeached for. My objection still remains. I cannot find it in the least obviated.
Mr. Bloodworth desired to be informed whether treaties were not to be submitted to the Parliament in Great-Britain before they were valid.
Mr. Iredell—Mr. Chairman, The objections to this clause deserve great consideration. I believe it will be easy to obviate the objections against it, and that it will be found to have been necessary, for the reasons stated by the gentleman from Halifax, to vest this power in some body composed of Representatives of states, where their voices should be equal: For in this case the sovereignty of the states is particularly concerned; and the great caution of giving the states an equality of suffrage in making treaties, was for the express purpose of taking care of that sovereignty, and attending to their interests, as political bodies, in foreign negociations. It is objected to as improper, because if the President or Senate should abuse their trust, there is not sufficient responsibility, since he can only be tried by the Senate, by whose advice he acted; and the Senate cannot be tried at all. I beg leave to observe, that when any man is impeached, it must be for an error of the heart, and not of the head. God forbid, that a man in any country in the world, should be liable to be punished for want of judgment. This is not the case here. As to errors of the heart there is sufficient responsibility. Should these be committed, there is a ready way to bring him to punishment. This is a responsibility which answers every purpose that could be desired by a people jealous of their liberty. I presume that if the President, with the advice of the Senate, should make a treaty with a foreign power, and that treaty should be deemed unwise, or against the interest of the country, yet if nothing could be objected against it but the difference of opinion between them and their constituents, they could not justly be obnoxious to punishment. If they were punishable for exercising their own judgment, and not that of their constituents, no man who regarded his reputation would accept the office either of a Senator or President. Whatever mistake a man may make, he ought not to be punished for it, nor his posterity rendered infamous. But if a man be a villain, and wilfully abuses his trust, he is to be held up as a public offender, and ignominiously punished.
A public officer ought not to act from a principle of fear. Were he punishable for want of judgment, he would be continually in dread. But when he knows that nothing but real guilt can disgrace him, he may do his duty firmly if he be an honest man, and if he be not, a just fear of disgrace, may perhaps, as to the public, have nearly the effect of an intrinsic principle of virtue. According to these principles, I suppose the only instances in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other. If the President had received a bribe without the privity or knowledge of the Senate, from a foreign power, and had, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty—if it appeared afterwards that this was the case, would not that Senate be as competent to try him as any other persons whatsoever? Would they not exclaim against his villainy? Would they not feel a particular resentment against him for their being made the instrument of his treacherous purposes? In this situation, if any objection could be made against the Senate as a proper tribunal, it might more properly be made by the President himself, lest their resentment should operate too strongly, rather than by the public, on the ground of a supposed partiality. The President must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives. If it should appear that he has not given them full information, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them—In this case, I ask whether, upon an impeachment for a misdemeanor upon such an account, the Senate would probably favour him? With respect to the impeachability of the Senate, that is a matter of doubt. There have been no instances of impeachment for legislative misdemeanors: And we shall find, upon examination, that the inconveniences resulting from such impeachments, would more than preponderate the advantages. There is no greater honour in the world, than being the representative of a free people—There is no trust on which the happiness of the people has a greater dependence. Yet, whoever heard of impeaching a Member of the Legislature for any legislative misconduct? It would be a great check on the public business, if a Member of the Assembly was liable to punishment for his conduct as such. Unfortunately it is the case, not only in other countries but even in this, that divisions and differences in opinion will continually arise. On many questions, there will be two or more parties. These often judge with little charity of each other, and attribute every opposition to their own system to an ill motive. We know this very well from experience; but, in my opinion, this constant suspicion is frequently unjust. I believe in general, both parties really think themselves right, and that the majority of each commonly act with equal innocence of intention. But, with the usual want of charity in these cases, how dangerous would it be to make a Member of the Legislature liable to impeachment! A mere difference of opinion might be interpreted by the malignity of party, into a deliberate, wicked action. It, therefore, appears to me at least very doubtful, whether it would be proper to render the Senate impeachable at all; especially as in the branches of executive government, where their concurrence is required, the President is the primary agent, and plainly responsible; and they in fact are but a Council to validate proper, or restrain improper, conduct in him.—But if a Senator is impeachable, it could only be for corruption, or some other wicked motive; in which case, surely those Senators who had acted from upright motives, would be competent to try him. Suppose there had been such a Council as was proposed, consisting of thirteen, one from each state, to assist the President in making treaties, &c. more general alarm would have been excited, and stronger opposition made to this Constitution, than even at present—The power of the President would have appeared more formidable, and the states would have lost one half of their security; since, instead of two Representatives, which each has now for those purposes, they would have had but one. A gentleman from New-Hanover has asked, whether it is not the practice in Great-Britain to submit treaties to Parliament, before they are esteemed valid. The King has the sole authority, by the laws of that country, to make treaties. After treaties are made, they are frequently discussed in the two Houses of Parliament; where, of late years, the most important measures of government have been narrowly examined. It is usual to move for an address of approbation; and such has been the complaisance of Parliament for a long time, that this seldom that been with-held. Sometimes they pass an act in conformity to the treaty made: But this I believe is not for the mere purpose of confirmation, but to make alterations in a particular system, which the change of circumstances requires. The constitutional power of making treaties is vested in the crown; and the power with whom a treaty is made, considers it as binding without any act of Parliament, unless an alteration by such is provided for in the treaty itself, which I believe is sometimes the case. When the treaty of peace was made in 1763, it contained stipulations for the surrender of some islands to the French. The islands were given up, I believe, without any act of Parliament. The power of making treaties is very important, and must be vested somewhere, in order to counteract the dangerous designs of other countries, and to be able to terminate a war when it is begun. Were it known that our government was weak, two or more European powers might combine against us. Would it not be politic to have some power in this country, to obviate this danger by a treaty? If this power was injudiciously limited, the nations where the power was possessed without restriction, would have greatly the advantage of us in negociation; and every one must know, according to modern policy, of what moment an advantage in negociation is. The honourable Member from Anson said, that the accumulation of all the different branches of power in the Senate, would be dangerous. The experience of other countries shews that this fear is without foundation. What is the Senate of Great-Britain opposed to the House of Commons, although it be composed of an hereditary nobility, of vast fortunes, and entirely independent of the people? Their weight is far inferiour to that of the Commons. Here is a strong instance of the accumulation of powers of the different branches of government without producing any inconvenience. That Senate, Sir, is a separate branch of the Legislature, is the great constitutional Council of the Crown, and decides on lives and fortunes in impeachments, besides being the ultimate tribunal for trying controversies respecting private rights. Would it not appear that all these things should render them more formidable than the other House? Yet the Commons have generally been able to carry every thing before them. The circumstance of their representing the great body of the people, alone gives them great weight. This weight has great authority added to it, by their possessing the right (a right given to the people's Representatives in Congress) of exclusively originating money bills. The authority over money will do every thing. A government cannot be supported without money. Our Representatives may at any time compel the Senate to agree to a reasonable measure, by with-holding supplies till the measure is consented to. There was a great debate in the Convention, whether the Senate should have an equal power of originating money bills. It was strongly insisted by some that they should; but at length a majority thought it unadviseable, and the clause was passed as it now stands. I have reason to believe our own Representatives had a great share in establishing this excellent regulation, and in my opinion they deserve the public thanks for it. It has been objected, that this power must necessarily injure the people, inasmuch as a bare majority of the Senate might alone be assembled, and eight would be sufficient for a decision. This is on a supposition that many of the Senators would neglect attending. IT is to be hoped that the gentlemen who will be honored with seats in Congress, will faithfully execute their trust, as well in attending as in every other part of their duty. An objection of this sort, will go against all government whatever. Possible abuse and neglect of attendance, are objections which may be urged against any government which the wisdom of man is able to construct. When it is known of how much importance attendance is, no Senator would dare to incur the universal resentment of his fellow-citizens, by grossly absenting himself from his duty. Do gentlemen mean that it ought to have been provided by the Constitution, that the whole body should attend before particular business was done? Then it would be in the power of a few men, by neglecting to attend, to obstruct the public business, and possibly bring on the destruction of their country. If this power be improperly vested, it is incumbent on gentlemen to tell us in what body it could be more safely and properly lodged. I believe, on a serious consideration, it will be found that it was necessary, for the reasons mentioned by the gentleman from Halifax, to vest the power in the Senate or in some other body representing equally the sovereignty of the states, and that the power, as given in the Constitution, is not likely to be attended with the evils which some gentlemen apprehend. The only real security of liberty in any country, is the jealousy and circumspection of the people themselves. Let them be watchful over their rulers. Should they find a combination against their liberties, and all other methods appear insufficient to preserve them, they have, thank God, an ultimate remedy. That power which created the government, can destroy it. Should the government, on trial, be found to want amendments, those amendments can be made in a regular method, in a mode prescribed by the Constitution itself. Massachusetts, South-Carolina, New-Hampshire, and Virginia, have all proposed amendments; but they all concurred in the necessity of an immediate adoption. A constitutional mode of altering the Constitution itself, is perhaps, what has never been known among mankind before. We have this security, in addition to the natural watchfulness of the people, which I hope will never be found wanting. The objections I have answered, deserved all possible attention, and for my part I shall always respect that jealousy which arises from the love of public liberty.
Mr. Spencer—Mr. Chairman, I think that no argument can be used to shew that this power is proper. If the whole legislative body—if the House of Representatives do not interfere in making treaties, I think they ought at least to have the sanction of the whole Senate. The worthy gentleman last up, has mentioned two cases wherein he supposes that impeachments will be fairly tried by the Senators. He supposes a case where the President had been guilty of corruption, and by that means had brought over and got the sanction of two-thirds of the Senators, and that if it should be afterwards found that he brought them over by artifices, that they would be a proper body to try him. As they will be ready to throw the odium off their own shoulders on him, they may pronounce sentence against him. He mentions another case, where, if a majority was obtained by bribing some of the Senators, that those who were innocent might try those who were guilty. I think that these cases will happen but rarely in comparison to other cases, where the Senators may advise the president to deviate from his duty, and where a majority of them may be guilty. And should they be tried by their own body when thus guilty, does not every body see the impropriety of it? It is universally disgraceful, odious, and contemptible to have a trial where the Judges are necessary to the misdemeanor of the accused. Whether the accusation against him be true or not, if afraid for themselves, they will endeavour to throw the odium upon him. There is an extreme difference between the case of trying this officer and that of trying their own Members. They are so different that I consider they will always acquit their own Members, and if they condemn the President, it will be to exonerate themselves. It appears to me, that the powers are too extensive, and not sufficiently guarded. I do no wish that an aristocracy should be instituted. An aristocracy may arise out of this government, though the Members be not hereditary. I would therefore wish that every guard should be placed, in order to prevent it. I wish gentlemen would reflect that the powers of the Senate are so great in their legislative and judicial capacities, that when added to their executive powers, particularly their interference in the appointment of all officers in the continent, that they will render their power so enormous as to enable them to destroy our rights and privileges. This, Sir, ought to be strictly guarded against.
Mr. Iredell—Mr. Chairman, The honourable gentleman must be mistaken. He suggests that an aristocracy will arise out of this government. Is there any thing like an aristocracy in this government? This insinuation is uncandidly calculated to alarm and catch prejudices. In this government there is not the least symptom of an aristocracy, which is, where the government is in a select body of men entirely independent of the people; as for instance, an hereditary nobility, or a Senate for life filling up vacancies by their own authority. Will any Member of this government hold his station by any such tenure? Will not all authority flow, in every instance, directly or indirectly from the people? It is contended by that gentleman, that the addition of the power of making treaties, to their other powers, will make the Senate dangerous: That they would be even dangerous to the Representatives of the people. The gentleman has not proved this in theory. Whence will he adduce an example to prove it? What passes in England, directly disproves his assertion. In that country the Representatives of the people are chosen under undue influence; frequently by direct bribery and corruption. They are elected for seven years, and many of the Members hold offices under the crown, some during pleasure, others for life. They are also not a genuine representation of the people, but, from a change of circumstances, a mere shadow of it. Yet under these disadvantages, they having the sole power of originating money bills, it has been found that the power of the King and Lords is much less considerable than theirs. The high prerogatives of the King, and the great power and wealth of the Lords, have been more than once mentioned in the course of the debates. If under such circumstances, such Representatives, mere shadows of Representatives, by having the power of the purse, and the sacred name of the people to rely upon, are an over match for the King and Lords, who have such great hereditary qualifications, we may safely conclude that our own Representatives, who will be a genuine representation of the people, and have equally the right of originating money b ills, will at least be a match for the Senate, possessing qualifications so inferior to those of the House of Lords in England. It seems to be forgotten that the Senate is placed there for a very valuable purpose—as a guard against any attempt of consolidation. The Members of the Convention were as much averse to consolidation as any gentleman on this floor; but without this institution (I mean the Senate, where the suffrages of the states are equal) the danger would be greater. There ought to be some power given to the Senate to counteract the influence of the people by their biennial representation in the other House, in order to preserve completely the sovereignty of the states. If the people through the medium of their Representatives possessed a share in making treaties and appointing officers, would there not b ea greater balance of power in the House of Representatives than such a government ought to possess? It is true that it would be very improper if the Senate had authority to prevent the House of Representatives from protecting the people. It would be equally so, if the House of Representatives were able to prevent the Senate from protecting the sovereignty of the states. It is probable that either House would have sufficient authority to prevent much mischief. As to the suggestion of a tendency to aristocracy, it is totally groundless. I disdain every principle of aristocracy. There is not a shadow of an aristocratical principle in this government. The President is only chosen for four years—liable to be impeached—and dependent on the people at large for his re-election. Can this mode of appointment be said to have an aristocratical principle in it? The Senate is chosen by the Legislatures. Let us consider the example of other states, with respect to the construction of their Senate. In this point most of them differ; though they almost all concur in this, that the term of election for Senators is longer than that for Representatives. The reason of this is, to introduce stability into the laws, and to prevent that mutability which would result form annual elections of both branches. In New-York they are chosen for three years. In Virginia they are chosen for four years; and in Maryland they are chosen for five years. In this Constitution, although they are chosen for six years, one-thirds go out every second year (a method pursued in some of the state Constitutions) which at the same time secures stability to the laws, and a due dependence on the state Legislatures. Will any man say that there are any aristocratical principle sin a body who have no power independent of the people, and whereof one-third of the Members are chosen every second year, by a wise and select body of Electors? I hope, therefore, that it will not be considered that there are any aristocratical principles in this government, and that it will be given up as a point not to be contended for. The gentleman contends that a Council ought to be instituted in this case. One objection ought to be compared with another. It has been objected against the Constitution, that it will be productive of great expence. Had there been a Council, it would have been objected, that it was calculated for creating new offices and increasing the means of undue influence. Though he approves of a Council, others would not. As to offices, the Senate has no other influence but a restraint on improper appointments. The President proposes such a man for such an office—The Senate has to consider upon it—If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate. Suppose a man nominated by the President, with what face would any Senator object to him without a good reason? There must be some decorum in every public body. He would not say, "I do not choose this man, because a friend of mine wants the office." Were he to object to the nomination of the President, without assigning any reason, his conduct would be reprobated, and still might not answer his purpose. Were an office to be vacant, for which an hundred men on the continent were equally well qualified, there would be an hundred chances to one, whether his friend would be nominated to it. This in effect, is but a restruction on the President. The power of the Senate would be more likely to be abused were it vested in a Council of Thirteen, of which there would be one from each state. One man could be more easily influenced than two, We have therefore a double security. I am firmly of opinion, that if you take all the powers of the President and Senate together, the vast influence of the Representatives of the people, will preponderate against them in every case where the public good is really concerned.
Mr. Bloodworth—Mr. Chairman, I confess I am sorry to take up any time; I beg leave to make a few observations, for it would be an Herculean task, and disagreeable to this committee, to mention every thing. It has indeed been objected and urged, that the responsibility of the Senate was not sufficient to secure the states. When we consider the length of the term for which they are elected, and the extent of their powers, we must be persuaded that there is no real security. A gentleman has said that the Assembly of North-Carolina are rogues. It is then probable that they may be corrupted. In this case we have not a sufficient check on those gentlemen who are gone six years. A parallel is drawn between them and the Members of our Assembly; but if you reflect a moment, you will find that the comparison is not good. There is a responsibility in the Members of the Assembly, at the end of a year they are liable to be turned out. This is not the case with the Senators. I beg gentlemen to consider the extreme difference between the two cases. Much is said about treaties. I do not dread this so much as what will arise from the jarring interests of the eastern, southern, and the middle states. They are different in soil, climate, customs, produce and every thing. Regulations will be made evidently to the disadvantage of some part of the community, and most probably to ours. I will not take up more of the time of the committe.
Third clause of the second section of the second article read.
Mr. Maclaine—It has been objected to this part, that the power of appointing officers was something like a monarchical power. Congress are not be sitting at all times; they will only sit from time to time as the public business may render it necessary. Therefore the Executive ought to make temporary appointments, as well as receive Ambassadors and other Public Ministers. This power can be vested no where but in the Executive, because he is perpetually acting for the public. For though the Senate is to advise him in the appointment of officers, &c. yet, during their recess, the President must do this business or else it will be neglected, and such neglect may occasion public inconveniences. But there is an objection made to another part, that has not yet been read. His power of adjourning both Houses when they disagree, has been by some people construed to extend to any length of time. If gentlemen look at another part of the Constitution, they will find that there is a positive injunction that the Congress must meet at least once in every year: So that he cannot, were he so inclined, prevent their meeting within a year. One of the best provisions contained in it is, that he shall commission all officers of the United States, and shall take care that the laws be faithfully executed. If the takes care to see the laws faithfully executed, it will be more than is done in any government on the continent, for I will venture to say that our government, and those of the other states, are, with respect to the execution of the laws, in many respects, mere cyphers.
Rest of the article read without any observations.
Article third, first and second sections read.
Mr. Spencer—Mr. Chairman, I have objections to this article. I object to the exclusive jurisdiction of the Federal Court in all cases of law and equity arising under the Constitution and the laws of the United States, and to the appellate jurisdiction of controversies between the citizens of different states, and a few other instances. To these I object because I believe they will be oppressive in their operation. I would wish that the Federal Court should not interfere or have any thing to do with controversies, to the decision of which the state judiciaries might be fully competent, nor with such controversies as must carry the people a great way from home. With respect to the jurisdiction of cases arising under the Constitution, when we reflect on the very extensive objects of the plan of government—the manner in which they may arise—and the multiplicity of laws that may be made with respect to them, the objection against it will appear to be well founded. If we consider nothing but the articles of taxation, duties, and excises, and the laws that might be made with respect to these, the cases will be almost infinite. If we consider that it is in contemplation that a stamp duty shall take place throughout the continent; that all contracts shall be on stamp paper; that no contracts should be of validity but what would be thus tamped; these cases will be so many that the consequences would be dreadful. It would be necessary to appoint Judges to the Federal Supreme Court, and other inferior departments, and such a number of inferior courts in every district and county, with a correspondent number of officers, that it would cost an immense expence without any apparent necessity; which must operate to the distress of the inhabitants.—There will be, without any manner of doubt, clashings and animosities between the jurisdiction of the Federal Courts and of the states courts, so that they will keep the country in hot water. It has been said that the impropriety of this was mentioned by some in the Convention. I cannot see the reasons of giving the Federal Courts jurisdiction in these cases, but I am sure it will occasion great expence unnecessarily. The states judiciaries will have very little to do. It will be almost useless to keep them up. As all officers are to take an oath to support the general government, it will carry every thing before it. This will produce that consolidation through the United States which is apprehended. I am sure that I do not see that it is possible to avoid it. I can see no power that can keep up the little remains of the power of the states. Our rights are not guarded. There is no declaration of rights, to secure to every member of the society those unalienable rights which ought not to be given up to any government. Such a bill of rights would be a check upon men in power. Instead of such a bill of rights, this Constitution has a clause, which may warrant encroachments on the power of the respective state Legislatures. I know it is said that what is not given up to the United States will be retained by the individual states. I know it ought to be so, and should be so understood; but, Sir, it is not declared to be so. In the confederation it is expressly declared that all rights and powers, of any kind whatever, of the several states, which are not given up to the United States, are expressly and absolutely retained to be enjoyed by the states. There ought to be a bill of rights, in order that those in power may not step over the boundary between the powers of government and the rights of the people, which they may do, when there is nothing to prevent them. They may do so without a bill of rights; notice will not be readily taken of the encroachments of rulers, and they may go a great length, before the people are alarmed. Oppressions may therefore take place by degrees, but if there were express terms and bounds laid down, when these were passed by, the people would take notice of them, and oppressions would not be carried on to such a length. I look upon it therefore that there ought to be something to confine the power of this government within its proper boundaries. I know that several writers have said that a bill of rights is not necessary in this country; that some states had them not, and that others had. To these I answer, that those states that have them not as bills of right, strictly so called, have them in the frame of their constitution, which is nearly the same.
There has been a comparison made of our situation with Great-Britain. We have no crown or prerogative of a King like the British Constitution. I take it, that the subject has been misunderstood. In Great-Britain, when the King attempts to usurp the rights of the people, the declaration and bill of rights are a guard against him. A bill of rights would be necessary here to guard against our rulers. I wish to have a bill of rights, to secure those unalienable rights, which are called by some respectable writers the residuum of human rights, which are never to be given up. At the same time that it would give security to individuals, it would add to the general strength. It might not be so necessary to have a bill of rights in the government of the United States, if such means had not been made use of, as endanger a consolidation of all the states; but at any event it would be proper to have one, because though it might not be of any other service, it would at least satisfy the minds of the people. It would keep the states from being swallowed up by a consolidated government. For the reasons I before gave, I think that the jurisdiction of the Federal Court, with respect to all cases in law and equity, and the laws of Congress, and the appeals in all cases between citizens of different states, &c. is inadmissible. I do not see the necessity that it should be vested with the cognizance of all these matters. I am desirous, and have no objection to their having one Supreme Federal Court for general matters; but if the Federal courts have cognizance of those subjects which I mentioned, very great oppressions may arise. Nothing can be more oppressive than the cognizance with respect to controversies between citizens of different states. In all cases of appeal, those persons who are able to pay, had better pay down in the first instance, though it be unjust, than be at such a dreadful expence, by going such a distance to the Supreme Federal Court. Some of the most respectable states have proposed by way of amendment, to strike out a great part of these two clauses. If they be admitted as they are, it will render the country entirely unhappy. On the contrary, I see no inconvenience from reducing the power as has been proposed. I am of opinion that it is inconsistent with the happiness of the people to admit these two clauses. The state Courts are sufficient to decide the common controversies of the people, without distressing them by carrying them to such far distant tribunals. If I did not consider these two clauses to be dangerous, I should not object to them. I mean not to object to any thing that it not absolutely necessary. I wish to be candid, and not be prejudiced or warped.
Mr. Spaight—Mr. Chairman, The gentleman insinuates that differences existed in the Federal Convention respecting the clauses which he objects to. Whoever told him so was wrong, for I declare, that in that Convention, the unanimous desire of all, was to keep separate and distinct the objects of the jurisdiction of the federal from that of the state judiciary. They wished to separate them as judiciously as possible, and to consult the ease and convenience of the people. The gentleman objects to the cognizance of all cases in law and equity arising under the Constitution and the laws of the United States. This objection is very astonishing. When any government is established, it ought to have power to enforce its laws, or else it might as well have no power. What but that is the use of a Judiciary? The gentleman, from his profession, must know that no government can exist without a Judiciary to enforce its laws, by distinguishing the disobedient from the rest of the people, and imposing sanctions for securing the execution of the laws. As to the inconvenience of distant attendance, Congress has power of establishing inferior tribunals in each state, so as to accommodate every citizen. As Congress have it in their power will they not do it? Are we to elect men who will wantonly and unnecessarily betray us?
Mr. Maclaine—Mr. Chairman, I hoped that some gentleman more capable than myself, would have obviated the objections to this part. The objections offered by the gentleman, appear to me totally without foundation. He told us that these clauses tended to a consolidation of the states. I cannot see how the states are to be consolidated by establishing these two clauses. He enumerated a number of cases which would be involved within the cognizance of the Federal Courts; customs, excises, duties, stamp duties, a stamp on every article, on every contract, in order to bring all persons into the Federal Court; and said that there would be necessarily courts in every district and county, which would be attended with enormous and needless expence, for that the state courts could do every thing. He went on further, and said that there would be a necessity of having sheriffs and other officers in these inferior departments. A wonderful picture indeed, drawn up in a wonderful manner! I will venture to say that the gentleman's suggestions are not warranted by any reasonable construction of the Constitution. The laws can, in general, be executed by the officers of the states. State courts and state officers will, for the most part, probably answer the purpose of Congress as well as any other. But the gentleman says that the state courts will be swallowed up by the Federal Courts. This is only a general assertion, unsupported by any probable reasons or arguments. The objects of each are separate and distinct. I suppose that whatever courts there may be, they will be established according to the convenience of the people. This we must suppose from the mode of electing and appointing the Members of the government. State officers will as much as possible be employed, for one very considerable reason, I mean to lessen the expence. But he imagines that the oath to be taken by officers, will tend to the subversion of our state governments and of our liberty. Can any government exist without fidelity in its officers? Ought not the officers of every government to give some security for the faithful discharge of their trust? The officers are only to be sworn to support the Constitution, and therefore will only be bound by their oath so far as it shall be strictly pursued. No officer will be bound by his oath to support any act that would violate the principles of the Constitution.
The gentleman has wandered out of his way, to tell us what has so often been said out of doors; that there is no declaration of rights, that consequently all our rights are taken away. It would be very extraordinary to have a bill of rights, because the powers of Congress are expressly defined, and the very definition of them is as valid and efficacious a check as a bill of rights could be, without the dangerous implication of a bill of rights. The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those rights which we have not given away to the general government. The gentleman is a professional man. If a gentleman had made his last will and testament, and devised or bequeathed to a particular person the sixth part of his property, or any particular specific legacy, could it be said that that person should have the whole estate? If they can assume powers not enumerated, there was no occasion for enumerating any powers. The gentleman is learned: Without recurring to his learning, he may only appeal to common sense, it will inform him, that if we had all power before, and give away but a part, we still retain the rest. It is as plain a thing as possible can be, that Congress can have no power but what we expressly give them. There is an express clause, which, however disingenuously it has been perverted from its true meaning, clearly demonstrates that they are confined to those powers which are given them. This clause enables them to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or any department or officers thereof. This clause specifies that they shall make laws to carry into execution, all the powers vested by this Constitution, consequently they can make no laws to execute any other power. This clause gives no new power, but declared that those already given are to be executed by proper laws. I hope this will satisfy gentlemen.
Governor Johnston—Mr. Chairman, The learned member from Anson says, that the Federal Courts have exclusive jurisdiction of all cases in law and equity arising under the Constitution and the laws of the United States. The opinion which I have always entertained is, that they will in these cases, as well as in several others, have concurrent jurisdiction with the state Courts, and not exclusive jurisdiction. I see nothing in this Constitution which hinders a man from bringing suit wherever he thinks he can have justice done him. The jurisdiction of these courts is established for some purposes with which the state courts have nothing to do, and the Constitution takes no power from the state courts which they now have. They will have the same business which they have now, and if so, they will have enough to employ their time. We know that the gentlemen who preside in our Superior Courts, have more business than they can determine. Their complicated jurisdiction, and the great extent of country, occasions them a vast deal of business. The addition of the business of the United States would be no manner of advantage to them. It is obvious to every one, that there ought to be one Supreme Court for national purposes. But the gentleman says that a bill of rights was necessary. It appears to me, Sir, that it would have been the highest absurdity to undertake to define what rights the people of the United States were entitled to nothing else. A bill of rights may be necessary in a monarchical government, whose powers are undefined. Were we in the situation of a monarchical country? No, Sir. Every right could not be enumerated, and the omitted rights would be sacrificed, if security arose from an enumeration. The Congress cannot assume any other powers than those expressly given them, without a palpable violation of the Constitution. Such objections as this, I hope will have no effect on the minds of any Members in this House. When gentlemen object generally, that it tends to consolidate the states and destroy the state Judiciaries, they ought to be explicit, and explain their meaning. They make use of contradictory arguments. The Senate represents the states, and can alone prevent this dreaded consolidation: Yet the powers of the Senate are objected to. The rights of the people, in my opinion, cannot be affected by the Federal Courts. I do not know how inferior courts will be regulated. Some suppose the state courts will have this business. Others have imagined that the continent would be divided into a number of districts, where courts would be held so as to suit the convenience of the people. Whether this or some other mode will be appointed by Congress, I know not, but this I am sure of, that the state judiciaries are not divested of their present judicial cognizance, and that we have every security that our ease and convenience will be consulted. Unless Congress had this power, their laws could not be carried into execution.
Mr. Bloodworth—Mr. Chairman, The worthy gentleman up last, has given me information on the subject, which I had never heard before. Hearing so many opinions, I did not know which was right. The honorable gentleman has said that the state courts and the Courts of the United States, would have concurrent jurisdiction. I beg the committee to reflect what would be the consequences of such measures. It has ever been considered that the trial by jury was one of the greatest rights of the people. I ask whether, if such causes go into the Federal Court, the trial by jury is not cut off, and whether there is any security that we shall have juries in civil causes. In criminal cases there are to be juries, but there is no provision made for having civil causes tried by jury. This concurrent jurisdiction is inconsistent with the security of that great right. If it be not, I would wish to hear how it is secured. I have listened with attention to what the learned gentlemen have said, and have endeavoured to see whether their arguments had any weight, but I found none in them. Many words have been spoken, and long time taken up, but with me they have gone in at one ear and out at the other. It would give me much pleasure to hear that the trial by jury was secured.
Mr. J. M'Dowall—Mr. Chairman, The objections to this part of the Constitution have not been answered to my satisfaction yet. We know that the trial by a jury of the vicinage, is one of the greatest securities for property. If causes are to be decided at such a great distance, the poor will be oppressed; in land affairs particularly, the wealthy suitor will prevail. A poor man, who has a just claim on a piece of land, has not substance to stand it. Can it be supposed that any man, of common circumstances, can stand the expence and trouble of going from Georgia to Philadelphia, there to have a suit tried? And can it be justly determined without the benefit of a trial by jury? These are things which have justly alarmed the people. What made the people revolt from Great-Britain? The trial by jury, that great safeguard of liberty, was taken away, and a stamp duty was laid upon them. This alarmed them, and led them to fear that greater oppressions would take place. We then resisted. It involved us in a war, and caused us to relinquish a government which made us happy in every thing else. The war was very bloody, but we got our independence. We are now giving away our dear bought rights. We ought to consider what we are about to do before we determine.
Mr. Spaight—Mr. Chairman, The trial by jury was not forgotten in the Convention; the subject took up a considerable time to investigate it. It was impossible to make any one uniform regulation for all the states, or that would include all cases where it would be necessary. It was impossible, by one expression, to embrace the whole. There are a number of equity and maritime cases in some of the states, in which jury trials are not used. Had the Convention said, that all causes should be tried by a jury, equity and maritime cases would have been included. It was therefore left to the Legislature to say in what cases it should be used; and as the trial by jury is in full force in the states courts, we have the fullest security.
Mr. Iredell—Mr. Chairman, I have waited a considerable time, in hopes that some other gentleman would fully discuss this point. I conceive it to be my duty to speak on every subject, whereon I think I can throw any light, and it appears to me that some things ought to be said which no gentleman has yet mentioned. The gentleman from New-Hanover said, that our arguments went in at one ear and out at the other. This sort of language, on so solemn and important an occasion, gives me pain. (Mr. Bloodworth here declared, that he did not mean to convey any disrespectful idea by such an expression—that he did not mean an absolute neglect of their arguments, but that they were not sufficient to convince him—that he should be sorry to give pain to any gentleman—that he had listened, and still would listen with attention to what would be said. Mr. Iredell then continued.) I am by no means surprised at the anxiety which is expressed by gentlemen on this subject. Of all the trials that ever were instituted in the world, this, in my opinion, is the best, and that which I hope will continue the longest. If the gentlemen who composed the Convention had designedly omitted it, no man would be more ready to condemn their conduct than myself. But I have been told, that the omission of it arose from the difficulty of establishing one uniform unexceptionable mode; this mode of trial being different in many particulars in the several states. Gentlemen will be pleased to consider, that there is a material difference between an article fixed in the constitution, and a regulation by law. An article in the constitution, however inconvenient it may prove by experience, can only be altered by altering the Constitution itself, which manifestly is a thing that ought not to be done often. When regulated by law, it can easily be occasionally altered, so as best to suit the conveniences of the people. Had there been an article in the Constitution taking away that trial, it would justly have excited the public indignation. It is not taken away by the Constitution. Though that does not provide expressly for a trial by jury in civil cases, it does not say that there shall not be such a trial. The reasons of the omission have been mentioned by a Member of the late General Convention, (Mr. Spaight). There are different practices in regard to this trial in different states. In some cases they have no juries in admiralty and equity cases; in others they have juries in these cases, as well as in suits at common law. I beg leave to say, that if any gentleman of ability, and knowledge of the subject, will only endeavour to fix upon any one rule, that would be pleasing to all the states under the impression of their present different habits, he will be convinced that it is impracticable. If the practice of any particular state had been adopted, others probably, whose practice had been different, would have been discontented. This is a consequence that naturally would have ensued, had the provision been made in the Constitution itself. But when the regulation is to be by law, as that law when found injudicious can be easily repealed, a majority may be expected to agree upon some method, since some method or other must be first tried, and there is a greater chance of the favourite method of one state being in time preferred. It is not to be presumed, that the Congress would dare to deprive the people of this valuable privilege. Their own interest will operate as an additional guard, as none of them could tell how soon they might have occasion for such a trial themselves. The greatest danger from ambition is in criminal cases. But here they have no option. The trial must be by jury in the state wherein the offence is committed, and the writ of habeas corpus will in the mean time secure the citizen against arbitrary imprisonment, which has been the principal source of tyranny in all ages.
As to the clause respecting cases arising under the Constitution and the laws of the union, which the honourable Member objected to, it must be observed, that laws are useless unless they are executed. At present Congress have powers which they cannot execute. After making laws which affect the dearest interests of the people, in the constitutional mode, they have no way of enforcing them. The situation of those gentlemen who have lately served in Congress must have been very disagreeable. Congress have power to enter into negociations which foreign nations, but cannot compel the observance of treaties that they make. They have been much distressed by their inability to pay the pressing demands of the public creditors. They have been reduced so low as to borrow principal to pay interest. Such are the unfortunate consequences of this unhappy situation! These are the effects of the pernicious mode of requisitions. Has any state fully paid its quota? I believe not, Sir. Yet I am far from thinking that this has been owing altogether to an unwillingness to pay the debts. It may have been in some instances the case, but I believe not in all. Our state Legislature has no way of raising any considerable sum but by laying direct taxes. Other states have imports of consequence. These may afford them a considerable relief, but our state perhaps could not have raised its full quota by direct taxes, without imposing burthens too heavy for the people to bear. Suppose in this situation, Congress had proceeded to enforce their requisitions, by sending an army to collect them; what would have been the consequence? Civil war; in which the innocent must have suffered with the guilty. Those who were willing to pay, would have been equally distressed with those who were unwilling. Requisitions thus having failed of their purpose, it is proposed by this Constitution, that instead of collecting taxes by the sword, application shall be made by the government to the individual citizens. If any individual disobeys, the courts of justice can give immediate relief. This is the only natural and effectual method of enforcing laws. As to the danger of concurrent jurisdictions, has any inconvenience resulted from the concurrent jurisdictions, in sundry cases, of the superior and county courts of this state? The inconvenience of attending at a great distance, which has been so much objected to, is one which would be so general, that there is no doubt but that a majority would always feel themselves and their constituents personally interested in preventing it. I have no doubt, therefore, that proper care will be taken to lessen this evil as much as possible, and in particular, that an appeal to the Supreme Court will not be allowed, but in cases of great importance, where the object may be adequate to the expence. The Supreme Court may possibly be directed to sit alternately in different parts of the union.
The propriety of having a Supreme Court in every government, must be obvious to every man of reflection. There can be no other way of securing the administration of justice uniformly in the several states. There might be otherwise as many different adjudications on the same subject, as there are states. It is to be hoped, that if this government be established, connexions still more intimate than the present, will subsist between the different states. The same measure of justice therefore, as to the objects of their common concern, ought to prevail in all. A man in North-Carolina for instance, if he owed =bp100 here, and was compellable to pay it in good money, ought to have the means of recovering the same sum, if due to him, in Rhode-Island, and not merely the nominal sum, at about an eighth or tenth part of its intrinsic value. To obviate such a grievance as this, the Constitution has provided a tribunal to administer equal justice to all.
A gentleman has said, that the stamp-act, and the taking away of the trial by jury, were the principal causes of resistance to Great-Britain, and seemed to infer, that opposition would therefore be justified to this part of the system. The stamp-act was much earlier than the immediate cause of our independence. But what was the great ground of opposition to the stamp-act? Surely it was, because the act was not passed by our own Representatives, but by those of Great-Britain. Under this Constitution, taxes are to be imposed by our own Representatives in the General Congress. The fewness of their number will be compensated by the weight and importance of their characters. Our Representatives will be in proportion to those of the other states. This case is certainly not like that of taxation by a foreign Legislature. In respect to the trial by jury, its being taken away in certain cases, was to be sure one of the causes assigned in the declaration of independence. But that was done by a foreign Legislature, which might continue it so forever, and therefore jealousy was justly excited. But this Constitution has not taken it away, and it is left to the discretion of our own Legislature, to act in this respect, as their wisdom shall direct. In Great-Britain the people speak of the trial by jury with admiration. No Monarch or Minister, however arbitrary in his principles, would dare to attack that noble palladium of liberty. The enthusiasm of the people in its favour would in such a case produce general resistance. That trial remains unimpaired there, although they have a considerable standing army, and their Parliament has authority to abolish it if they please. But woe be to those who should attempt it! If it be secure in that country, under these circumstances, can we believe that Congress either would or could take it away in this? Were they to attempt it, their authority would be instantly resisted. They would draw down on themselves the resentment and detestation of the people. They and their families, so long as any remained in being, would be held in eternal infamy, and the attempt prove as unsuccessful as it was wicked.
With regard to a bill of rights, this is a notion originating in England, where no written Constitution is to be found, and the authority of their government is derived from the most remote antiquity. Magna Charta itself is no Constitution, but a solemn instrument ascertaining certain rights of individuals, by the Legislature for the time being, and every article of which the Legislature may at any time alter. This, and a bill of rights also, the invention of later times, were occasioned by great usurpations of the crown, contrary, as was conceived, to the principles of their government, about which there was a variety of opinions. But neither that instrument or any other instrument ever attempted to abridge the authority of Parliament, which is supposed to be without any limitation whatever. Had their Constitution been fixed and certain, a bill of rights would have been useless, for the Constitution would have shewn plainly the extent of that authority which they were disputing about. Of what use therefore can a bill of rights be in this Constitution, where the people expressly declare how much power they do give, and consequently retain all they do not? It is a declaration of particular powers by the people to their Representatives for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear before that at the end of a power of attorney it was said, that the Attorney should not exercise more power than was there given him? Suppose for instance a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson; would the other have any authority to sell the lands in Caswell? or could he without absurdity say, "'Tis true you have not expressly authorised me to sell the lands in Caswell, but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other." A bill of rights, as I conceive, would not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose therefore an enumeration of a great many, but an omission of some, and that long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, "We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights passed at that time, shewed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them." Thus a bill of rights might operate as a snare, rather than a protection. If we had formed a General Legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American Constitutions, where the powers of legislation are general. But where they are powers of a particular nature, and expressly defined, as in the case of the Constitution before us, I think, for the reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous.
Mr. J. M'Dowall—Mr. Chairman, The learned gentleman made use of several arguments to induce us to believe, that the trial by jury in civil cases was not in danger, and observed, that in criminal cases it is provided, that the trial is to be in the state where the crime was committed. Suppose a crime is committed at the Mississippi—the man may be tried at Edenton. They ought to be tried by the people of the vicinage; for when the trial is at such an immense distance, the principal privilege attending the trial by jury is taken away: Therefore the trial ought to be limited to a district or certain part of the state. It has been said by the gentleman from Edenton, that our Representatives will have virtue and wisdom to regulate all these things. But it would give me much satisfaction, in a matter of this importance, to see it absolutely secured. The depravity of mankind militates against such a degree of confidence. I wish to see every thing fixed.
Governor Johnston—Mr. Chairman, The observations of the gentleman last up, confirm what the other gentleman said. I mean, that as there are dissimilar modes with respect to the trial by jury in different states, there could be no general rule fixed to accommodate all. He says that this clause is defective, because the trial is not to be by a jury of the vicinage. Let us look at the state of Virginia, where, as long as I have known it, the laws have been executed so as to satisfy the inhabitants, and I believe as well as in any part of the union. In that country juries are summoned every day from the by-standers. We may expect less partiality, when the trial is by strangers; and were I to be tried for my property or life, I would rather be tried by disinterested men, who were not biassed, than by men who were perhaps intimate friends of my opponent. Our mode is different from theirs, but whether theirs be better than ours or not, is not the question. It would be improper for our Delegates to impose our mode upon them, or for theirs to impose their mode upon us. The trial will probably be in each state as it has been hitherto used in such state, or otherwise regulated as conveniently as possible for the people. The Delegates who are to meet in Congress will, I hope, be men of virtue and wisdom. If not, it will be our own fault. They will have it in their power to make necessary regulations to accommodate the inhabitants of each state. In the Constitution, the general principles only are laid down. It will be the object of the future legislation of Congress, to make such laws as will be most convenient for the people. With regard to a bill of rights so much spoken of, what the gentleman from Edenton has said, I hope will obviate the objections against the want of it. In a monarchy, all power may be supposed to be vested in the Monarch, except what may be reserved by a bill of rights. In England, in every instance where the rights of the people are not declared, the prerogative of the King is supposed to extend. But in this country we say, that what rights we do not give away remain with us.
Mr. Bloodworth—Mr. Chairman, The footing on which the trial by jury is in the Constitution, does not satisfy me. Perhaps I am mistaken, but if I understand the thing right, the trial by jury is taken away. If the Supreme Federal Court has jurisdiction both as to law and fact, it appears to me to be taken away. The honourable gentleman who was in the Convention, told us, that the clause, as it now stands, resulted from the difficulty of fixing the mode of trial. I think it was easy to have put it on a secure footing. But if the genius of the people of the United States is so dissimilar, that our liberties cannot be secured, we can never hang long together. Interest is the band of social union, and when this is taken away, the union itself must dissolve.
Mr. Maclaine—Mr. Chairman, I do not take the interests of the states to be so dissimilar; I take them to be all nearly alike, and inseparably connected. It is impossible to lay down any constitutional rule for the government of all the different states in each particular. But it will be easy for the Legislature to make laws to accommodate the people in every part of the union, as circumstances may arise. Jury trial is not taken away in such cases where it may be found necessary. Altho' the Supreme Court has cognizance of the appeal, it does not follow but that the trial by jury may be had in the court below, and the testimony transmitted to the Supreme Court, who will then finally determine on a review of all the circumstances. This is well known to be the practice in some of the states. In our own state indeed, when a cause is instituted in the county court, and afterwards there is an appeal upon it, a new trial is had in the superior court, as if no trial had been had before. In other countries however, when a trial is had in an inferior court, and an appeal is taken, no testimony can be given in the court above, but the court determines upon the circumstances appearing upon the record. If I am right, the plain inference is, that there may be a trial in the inferior courts, and that the record including the testimony may be sent to the Supreme Court. But if there is a necessity for a jury in the Supreme Court, it will be a very easy matter to empanel a jury at the bar of the Supreme Court, which may save great expence and be very convenient to the people. It is impossible to make every regulation at once. Congress, who are our own Representatives, will undoubtedly make such regulations as will suit the convenience and secure the liberty of the people.
Mr. Iredell declared it as his opinion, that there might be juries in the superior court as well as in the inferior courts, and that it was in the power of Congress to regulate it so.
Mr. President now resumed the Chair, and Mr. Kenion reported, That the committee had, according to the order of the day, again had the proposed Constitution under consideration, and had made further progress therein, but not having time to go through the same, had desired him to move to the Convention for leave to sit again.
Resolved, That this Convention will to-morrow again dissolve itself into a committee of the whole House, to take into further consideration the proposed plan of government.
The Convention then adjourned until to-morrow morning, nine o'clock.
The Convention met according to adjournment, and resolved itself into a committee of the whole Convention, to take into further consideration the proposed plan of government.
Mr. Kennion in the Chair.
Mr. Spencer—Mr. Chairman, I hope to be excused for making some observations on what was said yesterday, by gentlemen in favour of these two clauses. The motion which was made that the committee should rise, precluded me from speaking then. The gentlemen have shewed much moderation and candour in conducting this business: But I still think that my observations are well founded, and that some amendments are necessary. The gentlemen said all matters not give up by this form of government, were retained by the respective states. I know that it ought to be so; it is the general doctrine, but it is necessary that it should be expressly declared in the Constitution, and not left to mere construction and opinion. I am authorised to say it was heretofore thought necessary. The Confederation says expressly, that all that was not given up by the United States, was retained by the respective states. If such a clause had been inserted in this Constitution, it would have superceded the necessity of a bill of rights. But that not being the case, it was necessary that a bill of rights, or something of that kind, should be a part of the Constitution. It was observed, that as the Constitution is to be a delegation of power from the several states to the United States, a bill of rights was unnecessary. But it will be noticed that this is a different case. The states do not act in their political capacities, but the government is proposed for individuals. The very caption of the Constitution shews that this is the case. The expression, "We the people of the United States," shews that this government is intended for individuals; there ought therefore to be a bill of rights. I am ready to acknowledge that the Congress ought to have the power of executing its laws. Heretofore, because all the laws of the Confederation were binding on the states in their political capacities, courts had nothing to do with them; but now the thing is entirely different. The laws of Congress will be binding on individuals, and those things which concern individuals will be brought properly before the courts. In the next place, all the officers are to take an oath to carry into execution this general government, and are bound to support every act of the government, of whatever nature it may be. This is a fourth reason for securing the rights of individuals. It was also observed, that the Federal Judiciary and the courts of the states under the federal authority, would have concurrent jurisdiction with respect to any subject that might arise under the Constitution. I am ready to say that I most heartily wish that whenever this government takes place, the two jurisdictions and the two governments, that is, the general and the several state governments, may go hand in hand, and that there may be no interference, but that every thing may be rightly conducted. But I will never concede that it is proper to divide the business between the two different courts. I have no doubt but there is wisdom enough in this state to decide the business in a proper manner, without the necessity of federal assistance to do our business. The worthy gentleman from Edenton, dwelt a considerable time on the observations on a bill of rights, contending that they were proper only in monarchies, which were founded on different principles from those of our government; and therefore, though they might be necessary for others, yet they were not necessary for us. I still think that a bill of rights is necessary. This necessity arises from the nature of human societies. When individuals enter into society, they give up some rights to secure the rest. There are certain human rights that ought not to be given up, and which ought in some manner to be secured. With respect to these great essential rights, no latitude ought to be left. They are the most inestimable gifts of the great Creator, and therefore ought not be destroyed, but ought to be secured. They ought to be secured to individuals in consideration of the other rights which they give up to support society.
The trial by jury has been also spoken of. Every person who is acquainted with the nature of liberty, need not be informed of the importance of this trial. Juries are called the bulwarks of our rights and liberty; and no country can ever be enslaved as long as those cases which affect their lives and property, are to be decided in a great measure, by the consent of twelve honest, disinterested men, taken from the respectable body of yeomanry. It is highly improper that any clause which regards the security of the trial by jury should be any way doubtful. In the clause that has been read, it is ascertained that criminal cases are to be tried by jury, in the states wherein they are committed. It has been objected to that clause, that it is not sufficiently explicit. I think that it is not. It was observed, that one may be taken at a great distance. One reason of the resistance to the British government was, because they required that we should be carried to the country of Great-Britain, to be tried by juries of that country. But we insisted on being tried by juries of the vicinage in our own country. I think it therefore proper, that something explicit should be said with respect to the vicinage.
With regard to that part that the Supreme Court shall have appellate jurisdiction both as to law and fact, it has been observed, that though the Federal Court might decide without a jury, yet the court below, which tried it, might have a jury. I ask the gentleman what benefit would be received in the suit by having a jury trial in the court below, when the verdict is set aside in the Supreme Court. It was intended by this clause that the trial by jury should be suppressed in the superior and inferior courts. It has been said in defence of the omission concerning the trial by jury in civil cases, that one general regulation could not be made—that in several cases the Constitution of several states did not require a trial by jury; for instance, in cases of equity and admiralty, whereas in others it did; and that therefore it was proper to leave this subject at large. I am sure that for the security of liberty they ought to have been at the pains of drawing some line. I think that the respectable body who formed the Constitution, should have gone so far as to put matters on such a footing as that there should be no danger. They might have provided that all those cases which are now triable by a jury, should be tried in each state by a jury, according to the mode usually practised in such state. This would have been easily done if they had been at the trouble of writing five or six lines. Had it been done, we should have been entitled to say that our rights and liberties were not endangered. If we adopt this clause as it is, I think, notwithstanding what gentlemen have said, that there will be danger. There ought to be some amendments to it, to put this matter on a sure footing. There does not appear to me to be any kind of necessity that the Federal Court should have jurisdiction in the body of the country. I am ready to give up that in the cases expressly enumerated, an appellate jurisdiction, except in one or two instances, might be given. I wish them also to have jurisdiction in maritime affairs, and to try offences committed on the high seas. But in the body of a state, the jurisdiction of the courts in that state might extend to carry into execution the laws of Congress. It must be unnecessary for the Federal Courts to do it, and would create trouble and expence which might be avoided. In all cases where appeals are proper, I will agree that it is necessary there should be one Supreme Court. Were those things properly regulated, so that the Supreme Court might not be oppressive, I should have no objection to it.
Mr. Davie—Mr. Chairman, Yesterday and to-day I have given particular attention to the observations of the gentleman last up. I believe, however, that before we take into consideration these important clauses, it will be necessary to consider in what manner laws can be executed. For my own part, I know but two ways in which the laws can be executed by any government. If there be any other, it is unknown to me. The first mode is coercion by military force, and the second is coercion through the judiciary. With respect to coercion by force, I shall suppose that it is so extremely repugnant to the principles of justice and the feelings of a free people, that no man will support it. It must in the end terminate in the destruction of the liberty of the people. I take it, therefore, that there is no rational way of enforcing the laws but by the instrumentality of the Judiciary. From these premises we are left only to consider how far the jurisdiction of the Judiciary ought to extend. It appears to me that the Judiciary ought to be competent to the decision of any question arising out of the Constitution itself. On a review of the principles of all free governments, it seems to me also necessary that the judicial power should be co-extensive with the legislative. It is necessary in all governments, but particularly in a federal government, that its judiciary should be competent to the decision of all questions arising out of the Constitution. If I understand the gentleman right, his objection was not to the defined jurisdiction, but to the general jurisdiction, which is expressed thus, "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority," and also to the appellate jurisdiction in some instances. Every Member who has read the Constitution with attention, must observe that there are certain fundamental principles in it, both of a positive and negative nature, which, being intended for the general advantage of the community, ought not to be violated by any future legislation of the particular states. Every Member will agree that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to be disregarded or violated. Without a Judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened. There are certain prohibitory provisions in this Constitution, the wisdom and propriety of which must strike every reflecting mind, and certainly meet with the warmest approbation of every citizen of this state. It provides, "That no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws—that no preference shall be given by any regulation of commerce or revenue, to the ports of one state over those of another—and that no state shall emit bills of credit—make any thing but gold and silver coin a tender in payments of debts—pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." These restrictions ought to supercede the laws of particular states. With respect to the prohibitory provisions, that no duty or impost shall be laid by any particular state, which is so highly in favour of us and the other non-importing states, the importing states might make laws laying duties notwithstanding, and the Constitution might be violated with impunity, if there were no power in the general government to correct and counteract such laws. This great object can only be safely and completely obtained by the instrumentality of the Federal Judiciary. Would not Virginia, who has raised many thousand pounds out of our citizens by her imposts, still avail herself of the same advantage if there were no constitutional power to counteract her regulations? If cases arising under the Constitution were left to her own courts, might she not still continue the same practices? But we are now to look for justice to the controuling power of the Judiciary of the United States. If the Virginians were to continue to oppress us by laying duties, we can be relieved by a recurrence to the general Judiciary. This restriction in the Constitution, is a fundamental principle which is not to be violated, but which would have been a dead letter were there no Judiciary constituted to enforce obedience to it. Paper money and private contracts were in the same condition. Without a general controuling Judiciary, laws might be made in particular states to enable its citizens to defraud the citizens of other states. Is it probable that if a citizen of South-Carolina owed a sum of money to a citizen of this state, that the latter would be certain of recovering the full value in their courts? That state might in future, as they have already done, make pine-barren acts to discharge their debts. They might say that our citizens should be paid in sterile inarable lands, at an extravagant price. They might pass the most iniquitous instalment laws, procrastinating the payment of debts due from their citizens, for years—nay, for ages. Is it probable that we should get justice from their own judiciary, who might consider themselves obliged to obey the laws of their own state? Where then are we to look for justice? To the Judiciary of the United States. Gentlemen must have observed the contracted and narrowminded regulations of the individual states, and their predominant disposition to advance the interests of their own citizens to the prejudice of others. Will not these evils be continued if there be no restraint? The people of the United States have one common interest—they are all members of the same community, and ought to have justice administered to them equally in every part of the continent, in the same manner, with the same dispatch, and on the same principles. It is therefore absolutely necessary that the Judiciary of the union, should have jurisdiction in all cases arising in law and equity under the Constitution. Surely there should be somewhere a constitutional authority for carrying into execution constitutional provisions, otherwise, as I have already said, they would be a dead letter.
With respect to their having jurisdiction of all cases arising under the laws of the United States, although I have a very high respect for the gentleman, I heard his objection to it with surprise. I thought, if there were any political axiom under the sun, it must be that the judicial power ought to be co-extensive with the legislative. The federal government ought to possess the means of carrying the laws into execution. This position will not be disputed. A government would be a felo de se to put the execution of its laws under the controul of any other body. If laws are not to be carried into execution by the interposition of the Judiciary, how is it to be done? I have already observed, that the mind of every honest man who has any feeling for the happiness of his country, must have the highest repugnance to the idea of military coercion. The only means then, of enforcing obedience to the legislative authority, must be through the medium of the officers of peace. Did the gentleman carry his objection to the extension of the judicial power to treaties? It is another principle which I imagine will not be controverted, that the general Judiciary ought to be competent to the decision of all questions which involve the general welfare or the peace of the union. It was necessary that treaties should operate as laws upon individuals. They ought to be binding upon us the moment they are made. They involve in their nature, not only our own rights but those of foreigners. If the rights of foreigners were left to be decided ultimately by thirteen distinct judiciaries, there would necessarily be unjust and contradictory decisions. If our courts of justice did not decide in favour of foreign citizens and subjects when they ought, it might involve the whole union in a war. There ought, therefore, to be paramount tribunal, which should have ample power to carry them into effect. To the decision of all causes which might involve the peace of the union, may be referred also, that of controversies between the citizens or subjects of foreign states and the citizens of the United States. It has been laid down by all writers, that the denial of justice is one of the just causes of war. If these controversies were left to the decision of particular states, it would be in their power at any time, to involve the whole continent in a war, usually the greatest of all national calamities. It is certainly clear, that where the peace of the union is affected, the general Judiciary ought to decide. It has generally been given up, that all cases of admiralty and maritime jurisdiction should also be determined by them. It has been equally ceded by the strongest opposers to this government, that the Federal Courts should have cognizance of controversies between two or more states; between a state and the citizens of another state, and between the citizens of the same state claiming lands under the grant of different states. Its jurisdiction in these cases is necessary, to secure impartiality in decisions, and preserve tranquility among the states. It is impossible that there should be impartiality when a party affected is to be Judge.
The security of impartiality is the principal reason for giving up the ultimate decision of controversies between citizens of different states. It is essential to the interest of agriculture and commerce, that the hands of the states should be bound from making paper money, instalment laws, or pine-barren acts. By such iniquitous laws the merchant or farmer may be defrauded of a considerable part of his just claims. But in the federal court real money will be recovered with that speed which is necessary to accommodate the circumstances of individuals. The tedious delays of judicial proceedings at present in some states, are ruinous to creditors. In Virginia many suits are twenty or thirty years spun out by legal ingenuity, and the defective construction of their judiciary. A citizen of Massachusetts or this country might be ruined before he could recover a debt in that state. It is necessary therefore in order to obtain justice, that we recur to the Judiciary of the United States, where justice must be equally administered, and where a debt may be recovered from the citizen of one state as soon as from the citizen of another.
As to a bill of rights, which has been brought forward in a manner I cannot account for, it is unnecessary to say any thing. The learned gentleman has said, that by a concurrent jurisdiction the laws of the United States must necessarily clash with the laws of the individual states, in consequence of which the laws of the states will be obstructed, and the state governments absorbed. This cannot be the case. There is not one instance of a power given to the United States, whereby the internal policy or administration of the states is affected. There is no instance that can be pointed out, wherein the internal policy of the state can be affected by the Judiciary of the United States. He mentioned impost laws. It has been given up on all hands, that if there was a necessity of a Federal Court, it was on this account. Money is difficult to be got into the treasury. The power of the Judiciary to enforce the federal laws is necessary to facilitate the collection of the public revenues. It is well known in this state with what reluctance and backwardness Collectors pay up the public monies. We have been making laws after laws to remedy this evil and still find them ineffectual. Is it not therefore necessary to enable the general government to compel the delinquent receivers to be punctual? The honourable gentleman admits that the general government ought to legislate upon individuals instead of states. Its laws will otherwise be ineffectual, but particularly with respect to treaties. We have seen with what little ceremony the states violated the peace with Great-Britain. Congress had no power to enforce its observance. The same cause will produce the same effect. We need not flatter ourselves that similar violations will always meet with equal impunity. I think he must be of opinion upon more reflection, that the jurisdiction of the federal Judiciary could not have been constructed otherwise with safety or propriety. It is necessary that the Constitution should be carried into effect, that the laws should be executed, justice equally done to all the community, and treaties observed. These ends can only be accomplished by a general paramount Judiciary. These are my sentiments, and if the honourable gentleman will prove them erroneous, I shall readily adopt his opinions.
Mr. Maclaine—Mr. Chairman, I beg leave to make a few observations. One of the gentleman's objections to the Constitution now under consideration is, that it is not the act of the states but of the people; but that it ought to be the act of the states, and he instances the delegation of power by the states to the Confederation at the commencement of the war as a proof of this position. I hope, Sir, that all power is in the people and not in the state governments. If he will not deny the authority of the people to delegate power to agents, and to devise such a government as a majority of them thinks will promote their happiness, he will withdraw his objection. The people, Sir, are the only proper authority to form a government. They, Sir, have formed their state governments, and can alter them at pleasure. Their transcendent power is competent to form this or any other government which they think promotive of their happiness. But the gentleman contends that there ought to be a bill of rights, or something of that kind—something declaring expressly, that all power expressly given to the Constitution, ought to be retained by the states, and he produces the Confederation as an authority for its necessity. When the Confederation was made, we were by no means so well acquainted with the principles of government as we are now. We were then jealous of the power of our rulers, and had an idea of the British government when we entertained that jealousy. There is no people on earth so well acquainted with the nature of government as the people of America generally are. We know now, that it is agreed upon by most writers, and men of judgment and reflection, that all power is in the people and immediately derived from them. The gentleman surely must know, that if there be certain rights which never can nor ought to be given up; these rights cannot be said to be given away, merely because we have omitted to say that we have not given them up. Can any security arise from declaring that we have a right to what belongs to us? Where is the necessity of such a declaration? If we have this inherent, this unalienable, this indefeasible title to those rights, if they are not given up, are they not retained? If Congress should make a law beyond the powers and the spirit of the Constitution, should we not say to Congress, "You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amendable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt."
But the gentleman seems to be most tenacious of the judicial power of the states. The honourable gentleman must know, that the doctrine of reservation of power not relinquished, clearly demonstrates that the judicial power of the states is not impaired. He asks, with respect to the trial by jury, when the cause has gone up to the Superior Court, and the verdict is set aside, what benefit arises from having had a jury trial in the Inferior Court? I would ask the gentleman, what is the reason, that on a special verdict or case agreed, the decision is left to the court? There are a number of cases where juries cannot decide. When a jury finds the fact specially, or when it is agreed upon by the parties, the decision is referred to the court. If the law be against the party, the court decides against him; if the law be for him, the court judges accordingly. He as well as every gentleman here must know, that under the Confederation Congress set aside juries. There was an appeal given to Congress, did Congress determine by a jury? Every party carried his testimony in writing to the Judges of Appeal, and Congress determined upon it.
The distinction between matters of law and of fact, has not been sufficiently understood, or has been intentionally misrepresented. On a demurrer in law, in which the facts are agreed upon by the parties, the law arising thereupon is referred to the court. An inferior court may give an erroneous judgment; and appeal may be had from this court to the Supreme Federal Court, and a right decision had. This is an instance wherein it can have cognizance of matter of law solely. In cases where the existence of facts has been first disputed by one of the parties, and afterwards established as in a special verdict, the consideration of these facts, blendid with the law, is left to the court. In such cases Inferior Courts may decide contrary to justice and law, and appeals may be had to the Supreme Court. This is an instance wherein it may be said they have jurisdiction both as to law and fact. But where facts only are disputed, and where they are once established by a verdict, the opinion of the judges of the Supreme Court cannot, I conceive, set aside these facts, for I do not think they have power so to do by this construction.
The Federal Court has jurisdiction only in some instances. There are many instances in which no court but the state courts can have any jurisdiction whatsoever, except where parties claim land under the grant of different states, or the subject of dispute arises under the Constitution itself. The state courts have exclusive jurisdiction over every other possible controversy that can arise between the inhabitants of their own states; nor can the Federal Courts intermeddle with such disputes either originally or by appeal. There is a number of other instances where though jurisdiction is given to the Federal Courts, it is not taken away from the state courts. If a man in South-Carolina owes me money, I can bring suit in the courts of that state, as well as in any inferior Federal Court. I think gentlemen cannot but see the propriety of leaving to the general government the regulation of the inferior federal tribunals. This is a power which our own state Legislature has. We may trust Congress as well as them.
Mr. Spencer answered, That the gentleman last up had misunderstood him. He did not object to the caption of the Constitution, but he instanced it to shew that the United States were not, merely as states, the objects of the Constitution; but that the laws of Congress were to operate upon individuals and not upon states. He then continued—I do not mean to contend, that the laws of the general government should not operate upon individuals. I before observed that this was necessary, as laws could not be put in execution against states, without the agency of the sword, which instead of answering the ends of government would destroy it.—I endeavoured to shew, that as the government was not to operate against states but against individuals, the rights of individuals ought to be properly secured. In order to constitute this security, it appears to me there ought to be such a clause in the Constitution as there was in the Confederation, expressly declaring, that every power, jurisdiction and right, which are not given up by it, remain in the states. Such a clause would render a bill of rights unnecessary. But as there is no such clause I contend, that there should be a bill of rights, ascertaining and securing the great rights of the states and people. Besides my objection to the revision of facts by the Federal Court, and the insecurity of jury trial, I consider the concurrent jurisdiction of those courts with the state courts, as extremely dangerous. It must be obvious to every one, that if they have such a concurrent jurisdiction, they must in time take away the business from the state courts entirely. I do not deny the propriety of having Federal Courts; but they should be confined to federal business, and ought not to interfere in those cases where the state courts are fully competent to decide. The state courts can do their business without federal assistance. I do not know how far any gentleman may suppose, that I may from my office be biassed in favour of the state jurisdiction. I am no more interested than any other individual. I do not think it will affect the respectable office which I hold. Those courts will not take place immediately, and even when they do, it will be a long time before their concurrent jurisdiction will materially affect the state judiciaries—I therefore consider myself as disinterested. I only wish to have the government so constructed as to promote the happiness, harmony and liberty of every individual at home, and render us respectable as a nation abroad. I wish the question to be decided coolly and calmly, with moderation, candour and deliberation.
Mr. Maclaine replied, That the gentleman's objections to the want of a bill of rights, had been sufficiently answered. That the federal jurisdiction was well guarded, and that the Federal Courts had not, in his opinion, cognizance in any one case where it could be alone vested in the state judiciaries with propriety or safety. The gentleman, he said, had acknowledged that the laws of the union could not be executed under the existing government, and yet he objected to the Federal Judiciary's having cognizance of such laws, though it was the only probable means whereby they could be enforced. The treaty of peace with Great-Britain was the supreme law of the land, yet it was disregarded for want of a Federal Judiciary. The state judiciaries did not enforce an observance of it. The states courts were highly improper to be entrusted with the execution of the federal laws, as they were bound to judge according to the state laws, which might be repugnant to those of the union.
Mr. Iredell—Mr. Chairman, I beg leave to make a few observations on some remarks that have been made on this part of the Constitution. The honourable gentleman said that it was very extraordinary that the Convention should not have taken the trouble to make an addition of five or six lines, to secure the trial by jury in civil cases. Sir, if by the addition, not only of five or six lines, but of five or six hundred lines, this invaluable object could have been secured, I should have thought the Convention criminal in omitting it; and instead of meriting the thanks of their country, as I think they do now, they might justly have met with its resentment and indignation. I am persuaded that the omission arose from the real difficulty of the case. The gentleman says that a mode might have been provided, whereby the trial by jury might have been secured satisfactorily to all the states. I call on him to shew that mode—I know of none—nor do I think it possible for any man to devise on to which some states would not have objected. It is said indeed, that it might have been provided that it should be as it had been heretofore. Had this been the case, surely it would have been highly incongruous.—The trial by jury is different in different states. It is regulated in one way in the state of North-Carolina, and in another way in the state of Virginia. It is established in a different way from either in several other states. Had it then been inserted in the Constitution, that the trial by jury should be as it had been heretofore, there would have been an example, for the first time in the world, of a Judiciary belonging to the same government being different in different parts of the same country. What would you think of an act of Assembly which should require the trial by jury to be had in one mode in the county of Orange, in another mode in Granville, and in a manner different from both in Chatham? Such an act of Assembly, so manifestly injudicious, impolitic and unjust, would be repealed next year. But what would you say of our Constitution, if it authorised such an absurdity? The mischief then could not be removed without altering the Constitution itself. It must be evident therefore, that the addition contended for would not have answered the purpose. If the method of any particular state had been established, it would have been objected to by others, because whatever inconveniences it might have been attended with, nothing but a change in the Constitution itself could have removed them; whereas, as it is now, if any mode established by Congress is found inconvenient, it can easily be altered by a single act of legislation. Let any gentleman consider the difficulties in which the Convention was placed. And union was absolutely necessary. Every thing could be agreed upon except the regulation of the trial by jury in civil cases. They were all anxious to establish it on the best footing, but found they could fix upon no permanent rule that was not liable to great objections and difficulties. If they could not agree among themselves, they had still less reason to believe that all the states would have unanimously agreed to any one plan that could be proposed. They therefore thought it better to leave all such regulations to the Legislature itself, conceiving there could be no real danger in this case from a body composed of our own Representatives, who could have no temptation to undermine this excellent mode of trial in civil cases, and who would have indeed a personal interest in common with others, in making the administration of justice between man and man secure and easy. In criminal cases, however, no latitude ought to be allowed. In these the greatest danger from any government subsists, and accordingly it is provided, that there shall be a trial by jury in all such cases in the state wherein the offence is committed. I thought the objection against the want of a bill of rights had been obviated unanswerably. It appears to me most extraordinary. Shall we give up any thing but what is positively granted by that instrument? It would be the greatest absurdity for any man to pretend, that when a Legislature is formed for a particular purpose, it can have any authority but what is so expressly given to it, any more than a man acting under a power of attorney could depart from the authority it conveyed to him, according to an instance which I stated when speaking on the subject before. As for example—If I had three tracts of land, one in Orange, another in Caswell, and another in Chatham, and I gave a power of attorney to a man to sell the two tracts in Orange and Caswell, and he should attempt to sell my land in Chatham, would any man of common sense suppose he had authority to do so? In like manner, I say, the future Congress can have no right to exercise any power but what is contained in that paper. Negative words, in my opinion, could make the matter no plainer than it was before. The gentleman says that unalienable rights ought not to be given up. Those rights which are unalienable are not alienated. They still remain with the great body of the people. If any right be given up that ought not to be, let it be shewn. Say it is a thing which affects your country, and that it ought not to be surrendered—this would be reasonable. But when it is evident that the exercise of any power not given up would be an usurpation, it would be not only useless but dangerous to enumerate a number of rights which are not intended to be given up; because it would be implying in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation, and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.
Mr. Bloodworth—Mr. Chairman, I have listened with attention to the gentleman's arguments, but, whether it be for want of sufficient attention, or from the grossness of my ideas, I cannot be satisfied with his defence of the omission with respect to the trial by jury. He says that it would be impossible to fall on any satisfactory mode of regulating the trial by jury, because there are various customs relative to it in the different states. Is this a satisfactory cause for the omission? Why did it not provide that the trial by jury should be preserved in civil cases? It has said that the trial should be by jury in criminal cases, and yet this trial is different in its manner in criminal cases in the different states. If it has been possible to secure it in criminal cases, notwithstanding the diversity concerning it, why has it not been possible to secure it in civil cases? I wish this to be cleared up. By its not being provided for, it is expressly provided against. I still see the necessity of a bill of rights. Gentlemen use contradictory arguments on this subject, if I recollect right. Without the most express restrictions, Congress may trample on your rights. Every possible precaution should be taken when we grant powers. Rulers are always disposed to abuse them. I beg leave to call gentlemens recollection to what happened under our Confederation. By it nine states are required to make a treaty, yet seven states said that they could, with propriety, repeal part of the instructions given our secretary for foreign affairs, which prohibited him from making a treaty to give up the Mississippi to Spain, by which repeal the rest of his instructions enabled him to make such treaty: Seven states actually did repeal the prohibitory part of these instructions, and they insisted it was legal and proper. This was in fact a violation of the Confederation. If gentlemen thus put what construction they please upon words, how shall we be redressed if Congress shall say that all that is not expressed is given up, and they assume a power which is expressly inconsistent with the rights of mankind. Where is the power to pretend to deny its legality? This has occurred to me, and I wish it to be explained.
Mr. Spencer—Mr. Chairman, The gentlemen expresses admiration as to what we object with respect to a bill of rights, and insists that what is not give up in the Constitution, is retained. He must recollect I said yesterday, that we could not guard with too much care, those essential rights and liberties which ought never to be given up. There is no express negative—no fence against their being trampled on. They might exceed the proper boundary without being taken notice of. When there is no rule but a vague doctrine, they might make great strides and get into possession of so much power, that a general insurrection of the people would be necessary to bring an alteration about. But if a boundary were set up, when the boundary is passed, the people would take notice of it immediately. These are the observations which I made, and I have no doubt that when he coolly reflects, he will acknowledge the necessity of it. I acknowledge, however, that the doctrine is right. But if that Constitution is not satisfactory to the people, I would have a bill of rights, or something of that kind, to satisfy them.
Mr. Locke—Mr. Chairman, I wish to throw some particular light upon the subject according to my conceptions. I think the Constitution neither safe nor beneficial, as it grants powers unbounded, without restrictions. One gentleman has said, that it was necessary to give cognizance of causes to the Federal Court, because there was partiality in the Judges of the states; that the state Judges could not be depended upon in causes arising under the Constitution and laws of the union. I agree that impartiality in Judges is indispensable. But I think this alteration will not produce more impartiality than there is now in our courts, whatever evils it may bring forth. Must there not be Judges in the Federal Courts—and those Judges taken from some of the states? The same partiality therefore may be in them. For my part I think it derogatory to the honour of this state to give this jurisdiction to the Federal Courts. It must be supposed that the same passions, dispositions, and failings of humanity which attend the state Judges, will be equally the lot of the Federal Judges. To justify giving this cognizance to those courts, it must be supposed that all justice and equity are given up at once in the state. Such reasoning is very strange to me. I fear greatly for this state and other states. I find there has a considerable stress been laid upon the injustice of laws made heretofore. Great reflections are thrown on South-Carolina for passing pine-barren and installment laws, and on this state for making paper money. I wish those gentlemen who made those observations, would consider the necessity which compelled us in a great measure to make such money. I never thought the law which authorised it, a good law. If the evil could have been avoided, it would have been a very bad law. But necessity, Sir, justified it in some degree. I believe I have gained as little by it as any in this house. If we are to judge of the future by what we have seen, we shall find as much or more injustice in Congress than in our Legislature. Necessity compelled them to pass the law in order to save vast numbers of people from ruin. I hope to be excused in observing, that it would have been hard for our late continental army to law down their arms, with which they had valiantly and successfully fought for their country, without receiving or being promised and assured of some compensation for their past services. What a situation would this country have been in, if they had had the power over the purse and sword? If they had had the powers given up by this Constitution, what a wretched situation would this country have been in? Congress was unable to pay them, but passed many resolutions and laws in their favour, particularly one, that each state should make up the depreciation of the pay of the continental line, who were distressed for the want of an adequate compensation for their services. This state could not pay her proportion in specie. To have laid a tax for that purpose, would have been oppressive. What was to be done? The only expedient was to pass a law to make paper money, and make it a tender. The continental line was satisfied, and approved of the measure; it being done at their instance in some degree. Notwithstanding it was supposed to be highly beneficial to the state, it is found to be injurious to it. Saving expence is a very great object, but this incurred much expence. This subject has for many years embroiled the state. But the situation of the country is such, and the distresses of the people so great, that the public measure must be accommodated to their circumstances with peculiar delicacy and caution, or another insurrection may be the consequence. As to what the gentleman said of the trial by jury—it surprises me much to hear gentlemen of such great abilities, speak such language. It is clearly insecure, nor can ingenuity and subtle arguments prove the contrary. I trust this country is too sensible of the value of liberty, and her citizens have bought it too dearly to give it up hastily.
Mr. Iredell—Mr. Chairman, I hope that some other gentleman will answer what has been said by the gentlemen who have spoken last. I only rise to answer the question of the Member from New-Hanover, which was, If there was such a difficulty in establishing the trial by jury in civil cases, that the Convention could not concur in any mode, why the difficulty did not extend to criminal cases? I beg leave to say, that the difficulty in this case does not depend so much on the mode of proceeding, as on the difference of the subjects of controversy, and the laws relative to them. In some states there are no juries in admiralty and equity cases. In other states there are juries in such cases. In some states there are no distinct courts of equity, though in most states there are. I believe, that if an uniform rule had been fixed by the Constitution, it would have displeased some states so far that they would have rejected the Constitution altogether. Had it been declared generally, as the gentleman mentioned, it would have included equity and maritime cases, and created a necessity of deciding them in a manner different from that in which they have been decided heretofore in many of the states; which would very probably have met with the disapprobation of those states. We have been told, and I believe this was the real reason why they could not concur in any general rule. I have great respect for the characters of those gentlemen who formed the Convention, and I believe they were not capable of overlooking the importance of the trial by jury, much less of designedly plotting against it. But I fully believe that the real difficulty of the thing was the cause of the omission. I trust sufficient reasons have been offered, to shew that it is in no danger. As to criminal cases, I must observe, that the great instrument of arbitrary power is criminal prosecutions. By the privilege of the habeas corpus no man can be confined without enquiry, and if it should appear he has been committed contrary to law, he must be discharged. That diversity which is to be found in civil controversies, does not subsist in criminal cases. That diversity which contributes to the security of property in civil cases, would have pernicious effects in criminal ones. There is no other safe mode to try these but by a jury. If any man had the means of trying another his own way; or were it left to the controul of arbitrary Judges, no man would have that security for life and liberty which every freeman ought to have. I presume that in no state on the continent is a man tried on a criminal accusation but by a jury. It was necessary therefore that it should be fixed in the Constitution, that the trial should be by jury in criminal cases, and such difficulties did not occur in this as in the other case. The worthy gentleman says, that by not being provided for in civil cases it is expressly provided against, and that what is not expressed is given up. Were it so, no man would be more against this Constitution than myself. I should detest and oppose it as much as any man. But, Sir, this cannot be the case. I beg leave to say that that construction appears to me absurd and unnatural. As it could not be fixed either on the principles of uniformity or diversity, it must be left to Congress to modify it. If they establish it in any manner by law, and find it inconvenient, they can alter it. But I am convinced that a majority of the Representatives of the people, will never attempt to establish a mode oppressive to their constituents, as it will be their own interest to take care of this right. But it is observed that there ought to be a fence provided against future encroachments of power. If there be not such a fence it is a cause of objection. I readily agree there ought to be such a fence. The instrument ought to contain such a definition of authority as would leave no doubt, and if there be any ambiguity it ought not to be admitted. He says this construction is not agreeable to the people, though he acknowledges it is a right one. In my opinion there is no man of any reason at all, but must be satisfied with so clear and plain a definition. If the Congress should claim any power not given them, it would be as bare an usurpation as making a King in America. If this Constitution be adopted, it must be presumed the instrument will be in the hands of every man in America, to see whether authority be usurped; and any person by inspecting it may see if the power claimed be enumerated. If it be not, he will know it to be an usurpation.
Mr. Maclaine—Mr. Chairman, a gentlemen lately up, (Mr. Locke) has informed us of his doubts and fears respecting the Federal Courts. He is afraid for this state and other states. He supposes that the idea of giving cognizance of the laws of the union to Federal Courts, must have arisen from suspicions of partiality and want of common integrity in our state Judges. The worthy gentleman is mistaken in his construction of what I said. I did not personally reflect on the members of our state judiciary. Nor did I impute the impropriety of vesting the state judiciaries with exclusive jurisdiction over the laws of the union, and cases arising under the Constitution, to any want of probity in the Judges. But if they be Judges of the local or state laws, and receive emoluments for acting in that capacity, they will be improper persons to judge of the laws of the union. A federal Judge ought to be solely governed by the laws of the United States, and receive his salary from the treasury of the United States. It is impossible for any Judges, receiving pay from a single state, to be impartial in cases where the local laws or interests of that state clash with the laws of the union, or the general interests of America. We have instances here which prove this partiality in such cases. It is also so in other states. The gentleman has thrown out something very uncommon. He likens the powers given by this Constitution to giving the late army the purse and the sword. I am much astonished that such an idea should be thrown out by that gentlemen, because his respectability is well known. If he considers but a moment, he must see that his observation is bad, and that the comparison is extremely absurd and improper. The purse and the sword must be given to every government. The sword is given to the Executive Magistrate; but the purse remains by this Constitution in the Representatives of the people. We know very well that they cannot raise one shilling but by the consent of the Representatives of the people. Money bills do not even originate in the Senate; they originate solely in the other house. Every appropriation must be by law. We know therefore that no Executive Magistrate or officer, can appropriate s shilling but as he is authorised by law. With respect to paper money, the gentleman has acted and spoken with great candour. He was against paper money from the first emission. There was no other way to satisfy the late army but by paper money, there being not a shilling of specie in the state. There were other modes adopted by other states, which did not produce such inconveniences. There was however a considerable majority of that Assembly who adopted the idea, that not one shilling more, paper money, should be made, because of the evil consequences that must necessarily follow. The experience of this country for many years has proved that such emissions involve us in debts and distresses, destroy our credit and produce no good consequence; yet contrary to all good policy the evil was repeated.
With respect to our public security and paper money, the apprehensions of gentlemen are groundless. I believe this Constitution cannot affect them at all. In the 10th section of the first article, it is provided among other restrictions, "that no state shall emit bills of credit, make any thing but gold or silver coin a tender in payment of debts, or pass any law impairing the obligation of contracts." Now, Sir, this has no retrospective view. It looks to futurity.—It is conceived by many people, that the moment this new Constitution is adopted, our present paper money will sink to nothing. For my part, I believe that instead of sinking it will appreciate. If we adopt, it will rise in value, so that twenty shillings of it will be equal to two Spanish milled dollars and an half. Paper money is as good as gold and silver where there are proper funds to redeem it, and no danger of its being encreased. Before the late war our paper money fluctuated in value. Thirty-six years ago, when I came into the country, our paper money was at seven shillings to the dollar. A few years before the late war, the merchants of Great-Britain remonstrated to the Ministry of that country, that they lost much of their debts by paper money losing its value. This caused an order to be made through all the state not to pass any money bills whatever. The effect of this was that our money appreciated. At the commencement of the war, our paper money in circulation was equal to gold or silver. But it is said that on adoption, all debts contracted heretofore, must then be paid in gold or silver coin. I believe that if any gentleman will attend to the clause above recited, he will find that it has no retrospective but a prospective view. It does not look back but forward. It does not destroy the paper money which is now actually made, but prevents us from making any more. This is much in our favour, because we may pay in the money we contracted for (or such as is equal in value to it) and the very restriction against an increase of it will add to its value. It is in the power of the Legislature to establish a scale of depreciation to fix the value of it: There is nothing against this in the Constitution; on the contrary it favours it. I should be much injured if it was really to be the case that the paper money should sink. After the Constitution was adopted, I should think myself, as a holder of our paper money, possessed of continental security. I am convinced our money will be good money, and if I was to speculate in any thing, I would in paper money, though I never did speculate. I should be satisfied that I should make a profit. Why say that the state security will be paid in gold and silver after all these things are considered? Every real, actual debt of the state, ought to be discharged in real, and not nominal value, whether the Constitution be adopted or not.
Mr. Bass took a general view of the original and appellate jurisdiction of the Federal Court. He considered the Constitution neither necessary nor proper. He declared that the last part of the first paragraph of the second section, appeared to him totally inexplicable. He feared that dreadful oppression would be committed by carrying people too great a distance to decide trivial causes. He observed that gentlemen of the law and men of learning did not concur in the explanation or meaning of this Constitution. For his part, he said, he could not understand it, although he took great pains to find out its meaning, and although he flattered himself with the possession of common sense and reason. He always thought that there ought to be a compact between the governors and governed: Some called this a compact, others said it was not. From the contrariety of opinions, he thought the thing was either uncommonly difficult, or absolutely unintelligible. He wished to reflect on no gentleman, and apologized for his ignorance, by observing that he never went to school, and had been born blind; but he wished for information, and supposed that every gentleman would consider his desire as laudable.
Mr. Maclaine first, and then Mr. Iredell, endeavoured to satisfy the gentleman by a particular explanation of the whole paragraph. It was observed, that if there should be a controversy between this state and the Kings of France or Spain, it must be decided in the Federal Court. Or if there should arise a controversy between the French King or any other foreign power, or one of their subjects or citizens, and one of our citizens, it must be decided there also. The distinction between the words citizen and subject was explained—that the former related to individuals of popular governments; the latter to those of monarchies. As for instance, a dispute between this state or a citizen of it, and a person in Holland. The word foreign citizen would properly refer to such person. If the dispute was between this state and a person in France or Spain, the word foreign subject would apply to this—and all such controversies might be decided in the Federal Court—That the words citizens or subjects in that part of the clause, could only apply to foreign citizens or foreign subjects, and another part of the Constitution made this plain, by confining disputes in general between citizens of the same state, to the single case of their claiming lands under grants of different states.
The last clause of the second section under consideration.
Mr. Maclaine—Mr. Chairman, An objection was made yesterday by a gentleman against this clause, because it confined the trial to the state; and he observed, that a person on the Mississippi might be tried in Edenton. Gentlemen ought to consider that it was impossible for the Convention, when devising a general rule for all the states, to descend to particular districts. The trial by jury is secured generally, by providing that the trial shall be in the state where the crime was committed. It is left to Congress to make such regulations by law, as will suit the circumstances of each state. It would have been impolitic to fix the mode of proceeding, because it would alter the present mode of proceeding in such cases, in this state or in several others. For there is such a dissimilarity in the proceedings of different states, that it would be impossible to make a general law which would be satisfactory to the whole. But as the trial is to be in the state, there is no doubt but it will be in the usual and common mode practised in the state.
Third section read without any observation.
Article fourth. The first section, and two first clauses of the second section, read without any observation.
Mr. Iredell begged leave to explain the reason of this clause. In some of the northern states they have emancipated all their slaves. If any of our slaves, said he, go there and remain there a certain time, they would by the present laws, be entitled to their freedom; so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the southern states, and to prevent it, this clause is inserted in the Constitution.—Though the word slave be not mentioned, this is the meaning of it. The northern Delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.
The rest of the fourth article read without any observation.
Mr. Iredell—Mr. Chairman, This is a very important clause. In every other constitution of government that I have ever heard or read of, no provision is made for necessary amendments. The misfortune attending most constitutions which have been deliberately formed, has been, that those who formed them thought their wisdom equal to all possible contingencies, and that there could be no error in what they did. The gentlemen who framed this Constitution thought with much more diffidence of their own capacities; and undoubtedly without a provision for amendment it would have been more justly liable to objection, and the characters of its framers would have appeared much less meritorious. This indeed is one of the greatest beauties of the system, and should strongly recommend it to every candid mind. The Constitution of any government which can not be regularly amended when its defects are experienced reduces the people to this dilemma—they must either submit to its oppressions, or bring about amendments more or less by a civil war. Happy this, the country we live in! The Constitution before us, if it be adopted, can be altered with as much regularity and as little confusion, as any act of Assembly—not indeed quite so easily, which would be extremely impolitic; but it is a most happy circumstance, that there is a remedy in the system itself for its own fallibility, so that alterations can without difficulty be made agreeable to the general sense of the people. Let us attend to the manner in which amendments may be made: The proposition for amendments may arise from Congress itself, when two-thirds of both Houses shall deem it necessary. If they should not, and yet amendments be generally wished for by the people, two-thirds of the Legislatures of the different states may require a general Convention for the purpose, in which case Congress are under the necessity of convening one. Any amendments which either Congress shall propose, or which shall be proposed by such General Convention, are afterwards to be submitted to the Legislatures of the different states, or Conventions called for that purpose, as Congress shall think proper; and upon the ratification of three-fourths of the states, will become a part of the Constitution. By referring this business to the Legislatures, expence would be saved; and in general it may be presumed, they would speak the genuine sense of the people. It may, however, on some occasions, be better to consult an immediate delegation for that special purpose. This is therefore left discretionary. It is highly probable that amendments agreed to in either of these methods, would be conducive to the public welfare, when so large a majority of the states consented to them. And in one of these modes, amendments that are now wished for, may in a short time be made to this Constitution by the states adopting it.
It is however to be observed, that the first and fourth clauses in the ninth section of the first article, are protected from any alteration till the year 1808. And in order that no consolidation should take place, it is provided, that no state shall, by any amendment or alteration, be ever deprived of an equal suffrage in the Senate without its own consent. The two first prohibitions are with respect to the census, according to which direct taxes are imposed, and with respect to the importation of slaves. As to the first, it must be observed, that there is a material difference between the northern and southern states. The northern states have been much longer settled, and are much fuller of people than the southern, but have not land in equal proportion nor scarcely any slaves. The subject of this article was regulated with great difficulty, and by a spirit of concession which it would not be prudent to disturb for a good many years. In twenty years there will probably be a great alteration, and then the subject may be reconsidered with less difficulty, and greater coolness. In the mean time the compromise was upon the best footing that could be obtained. A compromise likewise took place in regard to the importation of slaves. It is probable that all the members reprobated this inhuman traffic, but those of South-Carolina and Georgia would not consent to an immediate prohibition of it; one reason of which was, that during the last war they lost a vast number of negroes, which loss they wish to supply. In the mean time it is left to the states to admit or prohibit the importation, and Congress may impose a limited duty upon it.
Mr. Bass observed, that it was plain, that the introduction of amendments depended altogether on Congress.
Mr. Iredell replied, that it was very evident that it did not depend on the will of Congress: For that the Legislatures of three-fourths of the states were authorised to make application for calling a Convention to propose amendments, and on such application, it is provided that Congress shall call such Convention, so that they will have no option.
Article sixth. First clause read without any observation.
Mr. Iredell—This clause is supposed to give too much power, when in fact it only provides for the execution of those powers which are already given in the foregoing articles. What does it say? That "this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the Judges in every state shall be bound thereby, any thing in the constitution of laws of any state to the contrary notwithstanding." What is the meaning of this, but that as we have given power we will support the execution of it? We should act like children to give power and deny the legality of executing it. It is saying no more than that when we adopt the government we will maintain and obey it; in the same manner as if the Constitution of this state had said, that when a law is passed in conformity to it we must obey that law. Would this be objected to? Then when the Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress under pretence of executing one power, should in fact usurp another, they will violate the Constitution. I presume therefore that this explanation, which appears to me the plainest in the world, will be entirely satisfactory to the committee.
Mr. Bloodworth—Mr. Chairman, I confess his explanation is not satisfactory to me—I wish the gentleman had gone further. I readily agree, that it is giving them no more power than to execute their laws. But how far does this go? It appears to me to sweep off all the Constitutions of the state. It is a total repeal of every act and Constitution of the states. The Judges are sworn to uphold it. It will produce an abolition of the state governments. Its sovereignty absolutely annihilates them.
Mr. Iredell—Mr. Chairman, Every power delegated to Congress, is to be executed by laws made for that purpose. It is necessary to particularise the powers intended to be given in the Constitution, as having no existence before. But after having enumerated what we give up, it follows of course, that whatever is done by virtue of that authority, is legal without any new authority or power. The question then under this clause, will always be—whether Congress has exceeded its authority? If it has not exceeded it we must obey, otherwise not. This Constitution when adopted will become a part of our state Constitution, and the latter must yield to the former only in those cases where power is given by it. It is not to yield to it in any other case whatever. For instance, there is nothing in the Constitution of this state establishing the authority of a Federal Court. Yet the Federal Court when established, will be as constitutional as the Superior Court is now under our Constitution.—It appears to me merely a general clause, the amount of which is, that when they pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not. As to the sufficiency or extent of the power, that is another consideration, and has been discussed before.
Mr. Bloodworth, This clause will be the destruction of every law which will come in competition with the laws of the United States. Those laws and regulations which have been or shall be made in this state, must be destroyed by it if they come in competition with the powers of Congress. Is it not necessary to define the extent of its operation? Is not the force of our tender laws destroyed by it? The worthy gentleman from Wilmington has endeavoured to obviate the objection as to the Constitution's destroying the credit of our paper money and paying debts in coin, but unsatisfactorily to me. A man assigns by legal fiction a bond to a man in another state—Could that bond be paid by money? I know it is very easy to be wrong. I am conscious of being frequently so. I endeavour to be open to conviction. This clause seems to me too general, and I think its extent ought to be limited and defined. I should suppose every reasonable man would think some amendments to it was necessary.
Mr. Maclaine—Mr. Chairman, That it will destroy the state sovereignty is a very popular argument. I beg leave to have the attention of the committee. Government is formed for the happiness and prosperity of the people at large. The powers given it are for their own good. We have found by several years experience, that government taken by itself nominally, without adequate power, is not sufficient to promote their prosperity. Sufficient powers must be given to it. The powers to be given the general government, are proposed to be withdrawn from the authority of the state governments, in order to protect and secure the union at large. This proposal is made to the people. No man will deny their authority to delegate powers and recall them, in all free countries.
But, says the gentleman last up, the construction of the Constitution is in the power of Congress, and it will destroy the sovereignty of the state governments. It may be justly said, that it diminishes the power of the state Legislatures, and the diminution is necessary to the safety and prosperity of the people. But it may be fairly said, that the members of the general government, the President, Senators and Representatives whom we send thither by our free suffrages to consult our common interest, will not wish to destroy the state governments, because the existence of the general government will depend on that of the state governments. But what is the sovereignty, and who is Congress? One branch—the people at large, and the other branch the states by their Representatives. Do people fear the delegation of power to themselves—to their own Representatives? But he objects, that the laws of the union are to be the supreme laws of the land. Is it not proper that their laws should be the law of the land, and paramount to those of any particular state? Or is it proper that the laws of any particular state should controul the of the United States? Shall a part controul the whole? To permit the local laws of any state to controul the laws of the union, would be to give the general government no powers at all. If the Judges are not to be bound by it, the powers of Congress will be nugatory. This is self-evident and plain. Bring it home to every understanding; it is so clear it will force itself upon it. The worthy gentleman says, in contradiction to what I have observed, that the clause which restrains the states from emitting paper money, &c. will operate upon the present circulating paper money, and that gold and silver must pay paper contracts. The clause cannot possibly have a retrospective view. It cannot affect the existing currency in any manner, except to enhance its value by the prohibition of future emissions. It is contrary to the universal principles of jurisprudence, that a law or Constitution should have a retrospective operation, unless it be expressly provided that it shall. Does he deny the power of the Legislature to fix a scale of depreciation as a criterion to regulate contracts made for depreciated money? As to the question he has put of an assigned bond, I answer that it can be paid with paper money. For this reason—the assignee can be in no better situation than the assignor. If it be regularly transferred, it will appear what person had the bond originally, and the present possessor can recover nothing but what the original holder of it could. Another reason which may be urged is, that the Federal Courts could have no cognizance of such a suit. Those courts have no jurisdiction in cases of debt between the citizens of the same state. The assignor being a citizen of the same state with the debtor, and assigning it to a citizen of another state to avoid the intent of the Constitution, the assignee can derive no advantage from the assignment, except what the assignor had a right to, and consequently the gentleman's objection falls to the ground.
Every gentleman must see the necessity for the laws of the union to be paramount to those of the separate states; and that the powers given by this Constitution must be executed. What, shall we ratify a government and then say it shall not operate? This would be the same as not to ratify. As to amendments, the best characters in the country, and those whom I most highly esteem, wish for amendments. Some parts of it are not organized to my wish. But I apprehend no danger from the structure of the government. One gentleman (Mr. Bass) said he thought it neither necessary nor proper. For my part, I think it essential to our very existence as a nation, and our happiness and prosperity as a free people. The men who composed it were men of great abilities and various minds. They carried their knowledge with them. It is the result, not only of great wisdom and mutual reflection, but of "mutual deference and concession." It has trifling faults, but they are not dangerous. Yet at the same time I declare, that if gentlemen propose amendments, if they be not such as would destroy the government entirely, there is not a single Member here more willing to agree to them than myself.
Mr. Davie—Mr. Chairman, Permit me, Sir, to make a few observations on the operation of the clause so often mentioned. This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed, without being counteracted by the laws or Constitutions of the individual states. Gentlemen should distinguish that it is not to be the supreme law in the exercise of a power not granted. It can be supreme only in cases consistent with the powers specifically granted, and not in usurpations. If you grant any power to the federal government, the laws made in pursuance of that power, must be supreme and uncontrouled in their operation. This consequence is involved in the very nature and necessity of the thing. The only rational enquiry is, whether those powers are necessary, and whether they are properly granted. To say that you have vested the federal government with power to legislate for the union, and then deny the supremacy of the laws, is a solecism in terms. With respect to its operation on our own paper money, I believe that a little consideration will satisfy every man that it cannot have the effect asserted by the gentleman from New-Hanover. The Federal Convention knew that several states had large sums of paper money in circulation, and that it was an interesting property, and they were sensible that those states would never consent to its immediate destruction, or ratify any system that would have that operation. The mischief already done could not be repaired; all that could be done was to form some limitation to this great political evil. As the paper money had become private property, and the object of numberless contracts, it could not be destroyed or intermeddled with in that situation, although its baneful tendency was obvious and undeniable; it was, however, effecting an important object to put bounds to this growing mischief. If the states had been compelled to sink the paper money instantly, the remedy might have been worse than the disease. As we could not put an immediate end to it, we were content with prohibiting its future increase, looking forward to its entire extinguishment when the states that had an emission circulating, should be able to call it in by a gradual redemption. In Pennsylvania, their paper money was not a tender in discharge of private contracts; in South-Carolina their bills became eventually a tender; and in Rhode-Island, New-York, New-Jersey, and North-Carolina the paper money was made a legal tender in all cases whatsoever. The other states were sensible that the destruction of the circulating paper, would be a violation of the rights of private property, and that such a measure would render the accession of those states to the system absolutely impracticable. The injustice and pernicious tendency of this disgraceful policy were viewed with great indignation by the states which adhered to the principles of justice. In Rhode-Island the paper money had depreciated to eight for one, and a hundred per cent. with us. The people of Massachusetts and Connecticut had been great sufferers by the dishonesty of Rhode-Island, and similar complaints existed against this state. This clause, because in some measure a preliminary with the gentlemen who represented the other states, "You have," said they, "by your iniquitous laws and paper emissions, shamefully defrauded our citizens. The Confederation prevented our compelling you to do them justice, but before we confederate with you again, you must not only agree to be honest, but put it out of your power to be otherwise." Sir, A member from Rhode-Island itself, could not have set his face against such language. The clause was, I believe, unanimously assented to; it has only a future aspect, and can by no means have a retrospective operation. And I trust the principles upon which the Convention proceeded, will meet the approbation of every honest man.
Mr. Cabarrus—Mr. Chairman, I contend that the clause which prohibits the states from emitting bills of credit, will not affect our present paper money. The clause has no retrospective view. This Constitution declares in the most positive terms, that no ex post facto law shall be passed by the general government. Were this clause to operate retrospectively, it would clearly be ex post facto, and repugnant to the express provision of the Constitution. How then in the name of God, can the Constitution take our paper money away? If we have contracted for a sum of money we ought to pay according to the nature of our contract. Every honest man will pay in specie who engaged to pay it. But if we have contracted for a sum of paper money, it must be clear to every man in this committee, that we shall pay in paper money. This is a Constitution for the future government of the United States. It does not look back. Every gentleman must be satisfied on the least reflection, that our paper money will not be destroyed. To say that it will be destroyed, is a popular argument, but not founded in fact in my opinion. I had my doubts, but on consideration I am satisfied.
Mr. Bloodworth—Mr. Chairman, I beg leave to ask, if the payment of sums now due be ex post facto? Will it be an ex post facto law, to compel the payment of money now due in silver coin? If suit be brought in the Federal Court against one of our citizens for a sum of money, will paper money be received to satisfy the judgment? I enquire for information—my mind is not yet satisfied. It has been said that we are to send our own gentlemen to represent us, and that there is not the least doubt they will put that construction on it which will be most agreeable to the people they represent. But it behoves us to consider, whether they can do so if they would when they mix with the body of Congress. The northern states are much more populous than the southern ones. To the north of the Susquehannah there are thirty-six Representatives, and to the south of it only twenty-nine; they will always out-vote us. Sir, we ought to be particular in adopting a Constitution which may destroy our currency, when it is to be the supreme law of the land, and prohibits the emission of paper money. I am not, for my own part, for giving an indefinite power. Gentlemen of the best abilities differ in the construction of the Constitution. The Members of Congress will differ too. Human nature is fallible. I am not for throwing ourselves out of the union. But we ought to be cautious by proposing amendments. The majority in several great adopting states was very trifling. Several of them have proposed amendments, but not in the mode satisfactory to my mind. I hope this Convention never will adopt it till the amendments are actually obtained.
Mr. Iredell—Mr. Chairman, With respect to this clause, it cannot have the operation contended for. There is nothing in the Constitution which affects our present paper money. It prohibits for the future the emitting of any, but it does not interfere with the paper money now actually in circulation in several states. There is an express clause which protects it. It provides that there shall be no ex post facto law. This would be ex post facto, if the construction contended for were right, as has been observed by another gentleman. If a suit were brought against a man in the Federal Court, and execution should go against his property, I apprehend, he would, under this Constitution, have a right to pay our paper money, there being nothing in the Constitution taking away the validity of it. Every individual in the United States, will keep his eye watchfully over those who administer the general government, and no usurpation of power will be acquiesced in. The possibility of usurping powers ought not to be objected against it. Abuse may happen in any government. The only resource against usurpation, is the inherent right of the people to prevent its exercise. This is the case in all free governments in the world. The people will resist if the government usurp powers not delegated to it. We must run the risk of abuse. We must take care to give no more power than is necessary, but having given that we must submit to the possible dangers arising from it. With respect to the great weight of the northern states, it will not, on a candid examination, appear so great as the gentleman supposes. At present the regulation of our representation is merely temporary. Whether greater or less it will hereafter depend on actual population. The extent of this state is very great, almost equal to that of any state in the union. And our population will probably be in proportion. To the north of Pennsylvania there are twenty-seven votes. To the south of Pennsylvania there are thirty votes, leaving Pennsylvania out. Pennsylvania has eight votes. In the division of what is called the northern and southern interests, Pennsylvania does not appear to be decidedly in either scale. Though there may be a combination of the northern states, it is not certain that the interest of Pennsylvania will coincide with theirs. If at any time she joins us, we shall have thirty-eight against twenty-seven. Should she be against us, they will have only thirty-five to thirty. There are two states to the northward who have, in some respect, a similarity of interests with ourselves. What is the situation of New-Jersey? It is in one respect similar to ours. Most of the goods which they use come through New-York, and they pay for the benefit of New-York, as we pay for that of Virginia. It is so with Connecticut, so that in every question between importing and non-importing states, we may expect that two of the northern states would probably join with North-Carolina. It is impossible, perhaps, to destroy altogether this idea of separate interests. But the difference between the states does not appear to me so great as the gentleman imagines; and I beg leave to say, that in proportion to the increase of population, the southern states will have greater weight than the northern, as they have such large quantities of land still uncultivated, which is not so much the case to the north. If we should suffer a small temporary inconvenience, we shall be compensated for it by having the weight of population in our favour in future.
Mr. Bloodworth—Mr. Chairman, When I was in Congress, the southern and northern interests divided at Susquehanna. I believe it is so now. The advantage to be gained by future population is no argument at all. Do we gain any thing when the other states have an equality of Members in the Senate, notwithstanding the increase of Members in the House of Representatives? This is no consequence at all. I am sorry to mention it, but I can produce an instance which will prove the facility of misconstruction. (Here Mr. Bloodworth cited an instance which took place in Congress with respect to the Indian trade, which not having been distinctly heard is omitted.)
They may trample on the rights of the people of North-Carolina if there be not sufficient guards and checks. I only mentioned this to shew that there may be misconstructions, and that in so important a case as a Constitution, every thing ought to be clear and intelligible, and no ground left for disputes.
Mr. Caldwell—Mr. Chairman, It is very evident that there is a great necessity for perspicuity. In the sweeping clause there are words which are not plain and evident. It says, that "this Constitution and the laws of the United States which shall be made in pursuance thereof, &c. shall be the supreme law of the land." The word pursuance is equivocal and ambiguous; a plainer word would be better. They may pursue bad as well as good measures, and therefore the word is improper—it authorises bad measures. Another thing is remarkable, that gentlemen as an answer to every improper part of it, tell us that everything is to be done by our own Representatives, who are to be good men. There is no security that they will be so, or continue to be so. Should they be virtuous when elected, the laws of Congress will be unalterable. These laws must be annihilated by the same body which made them. It appears to me that the laws which they make, cannot be altered without calling a Convention. (Mr. Caldwell added some reasons for this opinion, but spoke too low to be heard.)
Governor Johnston—Mr. Chairman, I knew that many gentlemen in this Convention were not perfectly satisfied with every article of this Constitution, but I did not expect so many would object to this clause. The Constitution must be the supreme law of the land, otherwise it will be in the power of any one state to counteract the other states, and withdraw itself from the union. The laws made in pursuance thereof by Congress, ought to be the supreme law of the land, otherwise any one state might repeal the laws of the union at large. Without this clause, the whole Constitution would be a piece of blank paper. Every treaty should be the supreme law of the land; without this, any one state might involve the whole union in war. The worthy member who was last up, has started an objection which I cannot answer. I do not know a word in the English language so good as the word pursuance, to express the idea meant and intended by the Constitution. Can any one understand the sentence any other way than this? When Congress makes a law in virtue of their constitutional authority, it will be an actual law. I do not know a more expressive or a better way of representing the idea by words. Every law consistent with the Constitution, will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it, cannot have been made in pursuance of its powers. The latter will be nugatory and void. I am at a loss to know what he means, by saying the laws of the union will be unalterable. Are laws as immutable as Constitutions? Can any thing be more absurd than assimilating the one to the other? The idea is not warranted by the Constitution, nor consistent with reason.
Mr. J. M'Dowall wished to know how the taxes are to be paid which Congress were to lay in this state. He asked if paper money would discharge them. He calculated that the taxes would be higher, and did not know how they could be discharged. For says he, every man is to pay so much more, and the poor man has not the money locked up in his chest. He was of opinion that our laws could be repealed entirely by those of Congress.
Mr. Maclaine—Mr. Chairman, Taxes must be paid in gold or silver coin, and not in imaginary money. As to the subject of taxation, it has been the opinion of many intelligent men that there will be no taxes laid immediately, or if any, that they will be very inconsiderable. There will be no occasion for it, as proper regulations will raise very large sums of money. We know that Congress will have sufficient power to make such regulations. The moment that the Constitution is established, Congress will have credit with foreign nations. Our situation being known they can borrow any sum. It will be better for them to raise any money they want at present by borrowing than by taxation. It is well known that in this country gold and silver vanish when paper money is made. When we adopt, if ever, gold and silver will again appear in circulation. People will let their hard money go, because they know that paper money cannot repay it. After the war we had more money in gold and silver in circulation, than we have nominal paper money now. Suppose Congress wished to raise a million of money more than the imposts: Suppose they borrow it.—They can easily borrow it in Europe at four per cent. The interest of that sum will be but 40,000=bp. So that the people instead of having the whole 1,000,000=bp to pay, will have but 40,000=bp to pay, which will hardly be felt. The proportion of 40,000=bp for this state, would be a trifle. In seven years time the people would be able, by only being obliged to pay the interest annually, to save money, and pay the whole principal perhaps afterwards without much difficulty. Congress will not lay a single tax when it is not to the advantage of the people at large. The western lands will also be a considerable fund. The sale of them will aid the revenue greatly, and we have reason to believe the impost will be productive.
Mr. J. M'Dowall—Mr. Chairman, Instead of reasons and authorities to convince me, assertions are made. Many respectable gentlemen are satisfied that the taxes will be higher. By what authority does the gentleman say that the impost will be productive, when our trade is come to nothing? Sir, borrowing money is detrimental and ruinous to nations. The interest is lost money. We have been obliged to borrow money to pay interest! We have no way of paying additional and extraordinary sums. The people cannot stand them. I should be extremely sorry to live under a government which the people could not understand, and which it would require the greatest abilities to understand. It ought to be plain and easy to the meanest capacity. What would be the consequence of ambiguity? It may raise animosity and revolutions, and involve us in bloodshed.—It becomes us to be extremely cautious.
Mr. Maclaine—Mr. Chairman, I would ask the gentleman what is the state of our trade? I do not pretend to a very great knowledge in trade, but I know something of it. If our trade be in a low situation, it must be the effect of our present weak government. I really believe that Congress will be able to raise almost what sums they please by the impost. I know it will, though the gentleman may call it assertion. I am not unacquainted with the territory or resources of this country. The resources, under proper regulations, are very great. In the course of a few years we can raise money without borrowing a single shilling. It is not disgraceful to borrow money. The richest nations have recurred to loans on some emergencies. I believe, as much as I do in my existence, that Congress will have it in their power to borrow money if our government be such as people can depend upon. They have been able to borrow now under the present feeble system: If so, can there be any doubt of their being able to do it under a respectable government?
Mr. M'Dowall replied, that our trade was on a contemptible footing—That it was come almost to nothing—and lower in North-Carolina than any where—That therefore little could be expected from the impost.
Mr. J. Galloway—Mr. Chairman, I should make no objection to this clause were the powers granted by the Constitution sufficiently defined: For I am clearly of opinion that it is absolutely necessary for every government, and especially for a general government, that its laws should be the supreme law of the land. But I hope the gentlemen of the committee will advert to the 10th section of the first article. This is a negative which the Constitution of our own state does not impose upon us. I wish the committee to attend to that part of it which provides that no state shall pass any law which will impair the obligation of contracts. Our public securities are at a low ebb, and have been so for many years. We well know that this country has taken those securities as specie. This hangs over our heads as a contract. There is a million and a half in circulation at least. That clause of the Constitution may compel us to make good the nominal value of these securities. I trust this country never will leave it to the hands of the general government to redeem the securities which they have already given. Should this be the case, the consequence will be, that they will be purchased by speculators, when the citizens will part with them perhaps for a very trifling consideration. Those speculators will look at the Constitution, and see that they will be paid in gold and silver. They will buy them at a half crown in the pound, and get the full nominal value for them in gold and silver. I therefore wish the committee to consider whether North-Carolina can redeem those securities in the manner most agreeable to her citizens, and justifiable to the world, if this Constitution be adopted.
Mr. Davie—Mr. Chairman, I believe neither the tenth section cited by the gentleman, nor any other part of the Constitution has vested the general government with power to interfere with the public securities of any state. I will venture to say, that the last thing which the general government will attempt to do, will be this. They have nothing to do with it. The clause refers merely to contracts between individuals. That section is the best in the Constitution. It is founded on the strongest principles of justice. It is a section in short, which I thought would have endeared the Constitution to this country. When the worthy gentleman comes to consider, he will find that the general government cannot possibly interfere with such securities. How can it? It has no negative clause to that effect. Where is there a negative clause, operating negatively on the states themselves? It cannot operate retrospectively, for this would be repugnant to its own express provisions. It will be left to ourselves to redeem them as we please. We wished we could put it on the shoulders of Congress, but could not. Securities may be higher, but never less. I conceive, Sir, that this is a very plain case, and that it must appear perfectly clear to the committee, that the gentleman's alarms are groundless.
The committee now rose, Mr. President resumed the chair, and Mr. Kenan reported, that the committee had, according to order, again had the said proposed Constitution under their consideration, but not having had time to go through the same, had directed him to move for leave to sit again to-morrow.
Resolved, That this Convention will again to-morrow resolve itself into a committee of the whole Convention on the said proposed Constitution.
1The Convention then adjourned until to-morrow morning nine o'clock.