Antifederalist No. 41-43 (Part 1)
Richard Henry Lee
"THE QUANTITY OF POWER THE UNION
MUST POSSESS IS ONE THING; THE MODE
OF EXERCISING THE POWERS GIVEN IS
QUITE A DIFFERENT CONSIDERATION"
Taken from "THE FEDERAL FARMER,"
. . . . A federal republic in
itself supposes state or local
governments to exist, as the body or
props, on which the federal bead
rests, and that it cannot remain a
moment after they cease. In
erecting the federal government, and
always in its councils, each state
must be known as a sovereign body.
But in erecting this government, I
conceive, the legislature of the
state, by the expressed or implied
assent of the people, or the people
of the state, under the direction of
the government of it, may accede to
the federal compact. Nor do I
conceive it to be necessarily a part
of a confederacy of states, that
each have an equal voice in the
general councils. A confederated
republic being organized, each state
must retain powers for managing its
internal police, and all delegate to
the union power to manage general
concerns. The quantity of power the
union must possess is one thing; the
mode of exercising the powers given
is quite a different consideration-
and it is the mode of exercising
them, that makes one of the
essential distinctions between one
entire or consolidated government,
and a federal republic. That is,
however the government may be
organized, if the laws of the union,
in most important concerns, as in
levying and collecting taxes,
raising troops, etc., operate
immediately upon the persons and
property of individuals, and not on
states, extend to organizing the
militia, etc., the government, as to
its administration, as to making and
executing laws, is not federal, but
consolidated. To illustrate my
idea: the union makes a requisition,
and assigns to each state its quota
of men or monies wanted; each state,
by its own laws and officers, in its
own way, furnishes its quota. Here
the state governments stand between
the union and individuals; the laws
of the union operate only on states,
as such, and federally. Here
nothing can be done without the
meetings of the state legislatures.
But in the other case the union,
though the state legislatures should
not meet for years together,
proceeds immediately by its own laws
and officers to levy and collect
monies of individuals, to enlist
men, form armies, etc. Here the
laws of the union operate
immediately on the body of the
people, on persons and property. In
the same manner the laws of one
entire consolidated government
operate. These two modes are very
distinct, and in their operation and
consequences have directly opposite
tendencies.... I am not for
depending wholly on requisitions.
Since the peace, and till the
convention reported, the wisest men
in the United States generally
supposed that certain limited funds
would answer the purposes of the
union. And though the states are by
no means in so good a condition as I
wish they were, yet, I think, I may
very safely affirm, they are in a
better condition than they would be
had congress always possessed the
powers of taxation now contended
for. The fact is admitted, that our
federal government does not possess
sufficient powers to give life and
vigor to the political system; and
that we experience disappointments,
and several inconveniences. But we
ought carefully to distinguish those
which are merely the consequences of
a severe and tedious war, from those
which arise from defects in the
federal system. There has been an
entire revolution in the United
States within thirteen years, and
the least we can compute the waste
of labor and property at, during
that period, by the war, is three
hundred millions of dollars. Our
people are like a man just
recovering from a severe fit of
sickness. It was the war that
disturbed the course of commerce
introduced floods of paper money,
the stagnation of credit, and threw
many valuable men out of steady
business. From these sources our
greatest evils arise. Men of
knowledge and reflection must
perceive it. But then, have we not
done more in three or four years
past, in repairing the injuries of
the war, by repairing houses and
estates, restoring industry,
frugality, the fisheries,
manufactures, etc., and thereby
laying the foundation of good
government, and of individual and
political happiness, than any people
ever did in a like time? We must
judge from a view of the country and
facts, and not from foreign
newspapers, or our own, which are
printed chiefly in the commercial
towns, where imprudent living,
imprudent importations, and many
unexpected disappointments, have
produced a despondency, and a
disposition to view everything on
the dark side. Some of the evils we
feel, all will agree, ought to be
imputed to the defective
administration of the governments.
From these and various
considerations, I am very clearly of
opinion that the evils we sustain
merely on account of the defects of
the confederation, ar but as a
feather in the balance against a
mountain, compared with those which
would infallibly be the result of
the loss of general liberty, and that
happiness men enjoy under a frugal,
free, and mild government.
Heretofore we do not seem to
have seen danger any where, but in
giving power to congress, and now no
where but in congress wanting
powers; and without examining the
extent of the evils to be remedied,
by one step we ar for giving up to
congress almost all powers of any
importance without limitation. The
defects of the confederation are
extravagantly magnified, an every
species of pain we feel imputed to
them; and hence it is inferred, the
must be a total change of the
principles, as well as forms of
government And in the main point,
touching the federal powers, we rest
all on a logical inference, totally
inconsistent with experience and
sound political reasoning.
It is said, that as the federal
head must make peace and war, and
provide for the common defense, it
ought to possess all powers
necessary to that end. That powers
unlimited, as to the purse and
sword, to raise men and monies and
form the militia, are necessary
to that end; and therefore, the
federal head ought to possess them.
This reasoning is far more specious
than solid. It is necessary that
these powers so exist in the body
politic, as to be called into
exercise whenever necessary for the
public safety. But it is by no
means true that the man, or congress
of men, whose duty it more
immediately is to provide for the
common defense, ought to possess
them without limitation. But clear
it is, that if such men, or
congress, be not in a situation to
hold them without danger to liberty,
he or they ought not to possess
them. It has long been thought to
be a well founded position, that the
purse and sword ought not to be
placed in the same hands in a free
government. Our wise ancestors have
carefully separated them-placed the
sword in the hands of their king,
even under considerable limitations,
and the purse in the hands of the
commons alone. Yet the king makes
peace and war, and it is his duty to
provide for the common defense of
the nation. This authority at least
goeth thus far-that a nation, well
versed in the science of government,
does not conceive it to be necessary
or expedient for the man entrusted
with the common defense and general
tranquility, to possess unlimitedly
the power in question, or even in
any considerable degree. Could he,
whose duty it is t defend the
public, possess in himself
independently, all the means of
doing it consistent with the public
good, it might be convenient. But
the people o England know that their
liberties and happiness would be in
infinitely great danger from the
king's unlimited possession of these
powers, than from al external
enemies and internal commotions to
which they might be exposed
Therefore, though they have made it
his duty to guard the empire, yet
the have wisely placed in other
hands, the hands of their
representatives, the power to deal
out and control the means. In
Holland their high mightiness must
provide for the common defense, but
for the means they depend in
considerable degree upon
requisitions made on the state or
local assemblies Reason and facts
evince, that however convenient it
might be for an executive
magistrate, or federal head, more
immediately charged with the
national defense and safety, solely,
directly, and independently to
possess all the means, yet such
magistrate or head never ought to
possess them if thereby the public
liberties shall be endangered. The
powers in question never have been,
by nations wise and free, deposited,
nor can they ever be, with safety,
any where out of the principal
members of the national system.
Where these form one entire
government, as in Great Britain,
they are separated and lodged in the
principal members of it. But in a
federal republic, there is quite a
different organization; the people
form this kind of government,
generally, because their territories
are too extensive to admit of their
assembling in one legislature, or
of executing the laws on free
principles under one entire
government. They Convene in their
local assemblies, for local
purposes, and for managing their
internal concerns, and unite their
states under a federal head for
general purposes. It is the
essential characteristic of a
confederated republic, that this
head be dependent on, and kept
within limited bounds by the local
governments; and it is because, in
these alone, in fact, the people can
be substantially assembled or
represented. It is, therefore, we
very universally see, in this kind
of government, the congressional
powers placed in a few hands, and
accordingly limited, and
specifically enumerated; and the
local assemblies strong and well
guarded, and composed of numerous
members. Wise men will always place
the controlling power where the
people are substantially collected
by their representatives. By the
proposed system the federal head
will possess, without limitation,
almost every species of power that
can, in its exercise, tend to change
the government, or to endanger
liberty; while in it, I think it has
been fully shown, the people will
have but the shadow of
representation, and but the shadow
of security for their rights and
liberties. In a confederated
republic, the division of
representation, etc., in its nature,
requires a correspondent division
and deposit of powers, relative to
taxes and military concerns. And I
think the plan offered stands quite
alone, in confounding the principles
of governments in themselves totally
distinct. I wish not to exculpate
the states for their improper
neglects in not paying their quotas
of requisitions. But, in applying
the remedy, we must be governed by
reason and facts. It will not be
denied that the people have a right
to change the government when the
majority choose it, if not
restrained by some existing compact;
that they have a right to displace
their rulers, and consequently to
determine when their measures are
reasonable or not; and that they
have a right, at any time, to put a
stop to those measures they may deem
prejudicial to them, by such forms
and negatives as they may see fit to
provide. From all these, and many
other well founded considerations, I
need not mention, a question arises,
what powers shall there be delegated
to the federal head, to insure
safety, as well as energy, in the
government? I think there is a safe
and proper medium pointed out by
experience, by reason, and facts.
When we have organized the
government, we ought to give power
to the union, so far only as
experience and present circumstances
shall direct, with a reasonable
regard to time to come. Should
future circumstances, contrary to
our expectations, require that
further powers be transferred to the
union, we can do it far more easily,
than get back those we may now
imprudently give. The system
proposed is untried. Candid
advocates and opposers admit, that
it is in a degree, a mere
experiment, and that its
organization is weak and imperfect.
Surely then, the safe ground is
cautiously to vest power in it, and
when we are sure we have given
enough for ordinary exigencies, to
be extremely careful how we delegate
powers, which, in common cases, must
necessarily be useless or abused,
and of very uncertain effect in
uncommon ones. By giving the union
power to regulate commerce, and to
levy and collect taxes by imposts,
we give it an extensive authority,
and permanent productive funds, I
believe quite as adequate to present
demands of the union, as excises and
direct taxes can be made to the
present demands of the separate
states. The state governments are
now about four times as expensive as
that of the union; and their several
state debts added together, are
nearly as large as that of the
union. Our impost duties since the
peace have been almost as productive
as the other sources of taxation,
and when under one general system of
regulations, the probability is that
those duties will be very
considerably increased. Indeed the
representation proposed will hardly
justify giving to congress unlimited
powers to raise taxes by imposts, in
addition to the other powers the
union must necessarily have. It is
said, that if congress possess only
authority to raise taxes by imposts,
trade probably will be overburdened
with taxes, and the taxes of the
union be found inadequate to any
uncommon exigencies. To this we may
observe, that trade generally finds
its own level, and will naturally
and necessarily heave off any undue
burdens laid upon it. Further, if
congress alone possess the impost,
and also unlimited power to raise
monies by excises and direct taxes,
there must be much more danger that
two taxing powers, the union and
states, will carry excises and
direct taxes to an unreasonable
extent, especially as these have not
the natural boundaries taxes on
trade have. However, it is not my
object to propose to exclude
congress from raising monies by
internal taxes, except in strict
conformity to the federal plan; that
is, by the agency of the state
governments in all cases, except
where a state shall neglect, for an
unreasonable time, to pay its quota
of a requisition; and never where so
many of the state legislatures as
represent a majority of the people,
shall formally determine an excise
law or requisition is improper, in
their next session after the same be
laid before them. We ought always
to recollect that the evil to be
guarded against is found by our own
experience, and the experience of
others, to be mere
neglect in the states to
pay their quotas; and power in the
union to levy and collect the
neglecting states' quotas with
interest, is fully adequate to the
evil. By this federal plan, with
this exception mentioned, we secure
the means of collecting the taxes by
the usual process of law, and avoid
the evil of attempting to compel or
coerce a state; and we avoid also a
circumstance, which never yet could
be, and I am fully confident never
can be, admitted in a free federal
republic-I mean a permanent and
continued system of tax laws of the
union, executed in the bowels of the
states by many thousand officers,
dependent as to the assessing and
collecting federal taxes solely upon
the union. On every principle,
then, we ought to provide that the
union render an exact account of all
monies raised by imposts and other
taxes whenever monies shall be
wanted for the purposes of the union
beyond the proceeds of the impost
duties; requisitions shall be made
on the states for the monies so
wanted; and that the power of laying
and collecting shall never be
exercised, except in cases where a
state shall neglect, a given time,
to pay its quota. This mode seems
to be strongly pointed out by the
reason of the case, and spirit of
the government; and I believe, there
is no instance to be found in a
federal republic, where the
congressional powers ever extended
generally to collecting monies by
direct taxes or excises. Creating
all these restrictions, still the
powers of the union in matters of
taxation will be too unlimited;
further checks, in my mind, are
indispensably necessary. Nor do I
conceive, that as full a
representation as is practicable in
the federal government, will afford
sufficient security. The strength
of the government, and the
confidence of the people, must be
collected principally in the local
assemblies. . . . A government
possessed of more power than its
constituent parts will justify, will
not only probably abuse it, but be
unequal to bear its own burden; it
may as soon be destroyed by the
pressure of power, as languish and
perish for want of it.
There are two ways further of
raising checks, and guarding against
-undue combinations and influence in
a federal system. The first is-in
levying taxes, raising and keeping
up armies, in building navies, in
forming plans for the militia, and
in appropriating monies for the
support of the military-to require
the attendance of a large proportion
of the federal representatives, as
two-thirds or three-fourths of them;
and in passing laws, in these
important cases, to require the
consent of two-thirds or three-
fourths of the members present.
The second is, by requiring that
certain important laws of the
federal head-as a requisition or a
law for raising monies by excise-
shall be laid before the state
legislatures, and if disapproved of
by a given number of them, say by as
many of them as represent a majority
of the people, the law shall have no
effect. Whether it would be
advisable to adopt both, or either
of these checks, I will not
undertake to determine. We have
seen them both exist in confederated
republics. The first exists
substantially in the confederation,
and will exist in some measure in
the plan proposed, as in choosing a
president by the house, or in
expelling members; in the senate,
in making treaties, and in deciding
on impeachments; and in the whole,
in altering the constitution. The
last exists in the United
Netherlands, but in a much greater
extent. The first is founded on
this principle, that these important
measures may, sometimes, be adopted
by a bare quorum of members, perhaps
from a few states, and that a bare
majority of the federal
representatives may frequently be of
the aristocracy, or some particular
interests, connections, or parties
in the community, and governed by
motives, views, and inclinations not
compatible with the general
interest. The last is founded on
this principle, that the people will
be substantially represented, only
in their state or local assemblies;
that their principal security must
be found in them; and that,
therefore, they ought to have
ultimately a constitutional control
over such interesting measures.
THE FEDERAL FARMER
Antifederalist No. 41-43 (Part II)
(Richard Henry Lee)
"THE QUANTITY OF POWER THE UNION
MUST POSSESS IS ONE THING; THE MODE
OF EXERCISING THE POWERS GIVEN IS
QUITE A DIFFERENT CONSIDERATION"
. . . In the present state of
mankind, and of conducting war, the
government of every nation must have
power to raise and keep up regular
troops. The question is, how shall
this power be lodged? In an entire
government, as in Great-Britain,
where the people assemble by their
representatives in one legislature,
there is no difficulty; it is of
course properly lodged in that
legislature. But in a confederated
republic, where the organization
consists of a federal head, and
local governments, there is no one
part in which it can be solely, and
safely lodged. By Art. 1., Sect.
8., "congress shall have power to
raise and support armies," etc. By
Art. I., Sect. 10., "no state,
without the consent of congress,
shall keep troops, or ships of war,
in time of peace." It seems fit the
union should direct the raising of
troops, and the union may do it in
two ways: by requisitions on the
states, or by direct taxes. The
first is most conformable to the
federal plan, and safest; and it may
be improved, by giving the union
power, by its own laws and officers,
to raise the state's quota that may
neglect, and to charge it with the
expense; and by giving a fixed
quorum of the state legislatures
power to disapprove the requisition.
There would be less danger in this
power to raise troops, could the
state governments keep a proper
control over the purse and over the
militia. But after all the
precautions we can take, without
evidently fettering the union too
much, we must give a large
accumulation of powers to it, in
these and other respects. There is
one check, which, I think may be
added with great propriety-that is,
no land forces shall be kept up, but
by legislative acts annually passed
by congress, and no appropriation of
monies for their support shall be
for a longer term than one year.
This is the constitutional practice
in Great Britain, and the reasons
for such checks in the United States
appear to be much stronger. We may
also require that these acts be
passed by a special majority, as
before mentioned. There is another
mode still more guarded, and which
seems to be founded in the true
spirit of a federal system: it seems
proper to divide those powers we can
with safety, lodge them in no one
member of the government alone; yet
substantially to preserve their use,
and to insure duration to the
government by modifying the exercise
of them-it is to empower congress to
raise troops by direct levies, not
exceeding a given number, say 2000
in time of peace, and 12,000 in a
time of war, and for such further
troops as may be wanted, to raise
them by requisitions qualified ,as
before mentioned. By the above
recited clause no state shall keep
troops, etc., in time of peace-this
clearly implies it may do it in time
of war. This must be on the
principle that the union cannot
defend all parts of the republic,
and suggests an idea very repugnant
to the general tendency of the
system proposed, which is to disarm
the state governments. A state in a
long war may collect forces
sufficient to take the field against
the neighboring states. This clause
was copied from the confederation,
in which it was of more importance
than in the plan proposed, because
under this the separate states,
probably, will have but small
revenues.
By Article I., section 8.,
congress shall have power to
establish uniform laws on the
subject of bankruptcies throughout
the United States. It is to be
observed, that the separate states
have ever been in possession of the
power, and in the use of it, of
making bankrupt-laws, militia laws,
and laws in some other cases,
respecting which, the new
constitution, when adopted, will
give the union power to legislate,
etc. But no words are used by the
constitution to exclude the
jurisdiction of the several states,
and whether they will be excluded or
not, or whether they and the union
will have concurrent jurisdiction or
not, must be determined by
inference, and from the nature of
the subject. If the power, for
instance, to make uniform laws on
the subject of bankruptcies, is in
its nature indivisible, or incapable
of being exercised by two
legislatures independently, or by
one in aid of the other, then the
states are excluded, and cannot
legislate at all on the subject,
even though the union should neglect
or find it impracticable to
establish uniform bankrupt laws.
How far the union will find it
practicable to do this, time only
can fully determine. When we
consider the extent of the country,
and the very different ideas of the
different parts in it, respecting
credit, and the mode of making men's
property liable for paying their
debts, we may, I think with some
degree of certainty, conclude that
the union never will be able to
establish such laws. But if
practicable, it does not appear to
me, on further reflection, that the
union ought to have the power. It
does not appear to me to be a power
properly incidental to a federal
head, and, I believe, no one ever
possessed it. It is a power that
will immediately and extensively
interfere with the internal police
of the separate states, especially
with their administering justice
among their own citizens. By giving
this power to the union, we greatly
extend the jurisdiction of the
federal judiciary, as all questions
arising on bankrupt laws, being laws
of the union . . .-[indeed], almost
all civil causes-may be drawn into
those courts. We must be sensible
how cautious we ought to be in
extending unnecessarily the
jurisdiction of those courts for
reasons I need not repeat. This
article of power too, will
considerably increase, in the hands
of the union, an accumulation of
powers, some of a federal and some
of an unfederal nature, [already]
too large without it. The
constitution provides that congress
shall have the sole and exclusive
government of what is called the
federal city, a place not exceeding
ten miles square, and of all places
ceded for forts, dock-yards, etc. I
believe this is a novel kind of
provision in a federal republic; it
is repugnant to the spirit of such a
government, and must be founded in
an apprehension of a hostile
disposition between the federal head
and the state governments. And it
is not improbable that the sudden
retreat of congress from
Philadelphia first gave rise to it.
With this apprehension, we provide,
the government of the union shall
have secluded places, cities, and
castles of defense, which no state
laws whatever shall invade. When we
attentively examine this provision
in all its consequences, it opens to
view scenes almost without bounds.
A federal, or rather a national
city, ten miles square, containing a
hundred square miles, is about four
times as large as London; and for
forts, magazines, arsenals, dock
yards, and other needful buildings,
congress may possess a number of
places or towns in each state. It
is true, congress cannot have them
unless the state legislatures cede
them; but when once ceded, they
never can be recovered. And though
the general temper of the
legislatures may be averse to such
cessions, yet many opportunities and
advantages may be taken of
particular times and circumstances
of complying assemblies, and of
particular parties, to obtain them.
it is not improbable, that some
considerable towns or places, in
some intemperate moments, or
influenced by anti-republican
principles, will petition to be
ceded for the purposes mentioned in
the provision. There are men, and
even towns, in the best republics,
which are often fond of withdrawing
from the government of them,
whenever occasion shall present.
The case is still stronger. If the
provision in question holds out
allurements to attempt to withdraw,
the people of a state must ever be
subject to state as well as federal
taxes; but the federal city and
places will be subject only to the
latter, and to them by no fixed
proportion. Nor of the taxes raised
in them, can the separate states
demand any account of congress.
These doors opened for withdrawing
from the state governments entirely,
may, on other accounts, be very
alluring and pleasing to those anti-
republican men who prefer a place
under the wings of courts.
If a federal town be necessary
for the residence of congress and
the public officers, it ought to be
a small one, and the government of
it fixed on republican and common
law principles, carefully enumerated
and established by the constitution.
it is true, the states, when they
shall cede places, may stipulate
that the laws and government of
congress in them shall always be
formed on such principles. But it
is easy to discern, that the
stipulations of a state, or of the
inhabitants of the place ceded, can
be of but little avail against the
power and gradual encroachments of
the union. The principles ought to
be established by the federal
constitution, to which all states
are parties; but in no event can
there be any need of so large a city
and places for forts, etc., totally
exempted from the laws and
jurisdictions of the state
governments. If I understand the
constitution, the laws of congress,
constitutionally made, will have
complete and supreme jurisdiction to
all federal purposes, on every inch
of ground in the United States, and
exclusive jurisdiction on the high
seas, and this by the highest
authority, the consent of the
people. Suppose ten acres at West-
Point shall be used as a fort of the
union, or a sea port town as a
dockyard: the laws of the union, in
those places, respecting the navy,
forces of the union, and all federal
objects, must prevail, be noticed by
all judges and officers, and
executed accordingly. And I can
discern no one reason for excluding
from these places, the operation of
state laws, as to mere state purpose
for instance, for the collection of
state taxes in them; recovering
debts; deciding questions of
property arising within them on
state laws; punishing, by state
laws, theft, trespasses, and
offenses committed in them by mere
citizens against the state law.
The city, and all the places in
which the union shall have this
exclusive jurisdiction, will be
immediately under one entire
government, that of the federal
head, and be no part of any state,
and consequently no part of the
United States. The inhabitants of
the federal city and places, will be
as much exempt from the laws and
control of the state governments, as
the people of Canada or Nova Scotia
will be. Neither the laws of the
states respecting taxes, the
militia, crimes of property, will
extend to them; nor is there a
single stipulation in the
constitution, that the inhabitants
of this city, and these places,
shall be governed by laws founded on
principles of freedom. All
questions, civil and criminal,
arising on the laws of these places,
which must be the laws of congress,
must be decided in the federal
courts; and also, all questions that
may, by such judicial fictions as
these courts may consider
reasonable, be supposed to arise
within this city, or any of these
places, may be brought into these
courts. By a very common legal
fiction, any personal contract may
be supposed to have been made in any
place. A contract made in Georgia
may be supposed to have been made in
the federal city; the courts will
admit the fiction. . . . Every suit
in which an inhabitant of a federal
district may be a party, of course
may be instituted in the federal
courts; also, every suit in which it
may be alleged and not denied, that
a party in it is an inhabitant of
such a district; also, every suit to
which a foreign state or subject,
the union, a state, citizens of
different states in fact, or by
reasonable legal fictions, may be a
party or parties. And thus, by
means of bankrupt laws, federal
districts, etc., almost all judicial
business, I apprehend may be carried
into the federal courts, without
essentially departing from the usual
course of judicial proceedings. The
courts in Great Britain have
acquired their powers, and extended
very greatly their jurisdictions by
such :fiction and suppositions as I
have mentioned. The constitution,
in these points, certainly involves
in it principles, and almost hidden
cases, which may unfold and in time
exhibit consequences we hardly think
of. The power of naturalization,
when viewed in connection with the
judicial powers and cases, is, in my
mind, of very doubtful extent. By
the constitution itself, the
citizens of each state will be
naturalized citizens of every state,
to the general purposes of
instituting suits, claiming the
benefits of the laws, etc. And in
order to give the federal courts
jurisdiction of an action, between
citizens of the same state, in
common acceptation-may not a court
allow the plaintiff to say, he
is a citizen of one state, and the
defendant a citizen of another
without carrying legal fictions so
far, by any means, as they have been
carried by the courts of King's
Bench and Exchequer, in order to
bring causes within their
cognizance? Further, the federal
city and districts, will be totally
distinct from any state, and a
citizen of a state will not of
course be subject of any of them.
And to avail himself of the
privileges and immunities of them,
must he not be naturalized by
congress in them? And may not
congress make any proportion of the
citizens of the states naturalized
subjects of the federal city and
districts, and thereby entitle them
to sue or defend, in all cases, in
the federal courts? I have my
doubts, and many sensible men, I
find, have their doubts, on these
points. And we ought to observe,
they must be settled in the courts
of law, by their rules,
distinctions, and fictions. To
avoid many of these intricacies and
difficulties, and to avoid the undue
and unnecessary extension of the
federal judicial powers, it appears
to me that no federal districts
ought to be allowed, and no federal
city or town-except perhaps a small
town, in which the government shall
be republican, but in which congress
shall have no jurisdiction over the
inhabitants of the states. Can the
union want, in such a town, any
thing more than a right to the soil
to which it may set its buildings,
and extensive jurisdiction over the
federal buildings, and property, its
own members, officers, and servants
in it? As to all federal objects,
the union will have complete
jurisdiction over them of course any
where, and every where. I still
think that no actions ought to be
allowed to be brought in the federal
courts, between citizens of
different states; at least, unless
the cause be of very considerable
importance. And that no action
against a state government, by any
citizen or foreigner, ought
to be allowed; and no action, in
which a foreign subject is party, at
least, unless it be of very
considerable importance, ought to be
instituted in federal courts. I
confess, I can see no reason
whatever, for a foreigner, or for
citizens of different states,
carrying sixpenny causes into the
federal courts. I think the state
courts will be found by experience,
to be bottomed on better principles,
and to administer justice better
than the federal courts. The
difficulties and dangers I have
supposed will result from so large a
federal city, and federal districts,
from the extension of the federal
judicial powers, etc. are not, I
conceive, merely possible, but
probable. I think pernicious
political consequences will follow
from them, and from the federal city
especially, for very obvious
reasons, a few of which I will
mention.
We must observe that the
citizens of a state will be subject
to state as well as federal taxes,
and the inhabitants of the federal
city and districts only to such
taxes as congress may lay. We are
not to suppose all our people are
attached to free government, and
the principles of the common law,
but that many thousands of them will
prefer a city governed not on
republican principles. This city,
and the government of it, must
indubitably take their tone from the
characters of the men, who from the
nature of its situation and
institution must collect there.
This city will not be established
for productive labor, for
mercantile, or mechanic industry;
but for the residence of government,
its officers and attendants. If
hereafter it should ever become a
place of trade and industry, [yet]
in the early periods of its
existence, when its laws and
government must receive their fixed
tone, it must be a mere court, with
its appendages-the executive,
congress, the law courts, gentlemen
of fortune and pleasure, with all
the officers, attendants, suitors,
expectants and dependents on the
whole. However brilliant and
honorable this collection may be, if
we expect it will have any sincere
attachments to simple and frugal
republicanism, to that liberty and
mild government, which is dear to
the laborious part of a free
people, we must assuredly deceive
ourselves. This early collection
will draw to it men from all parts
of the country, of a like political
description. We see them looking
towards the place already.
Such a city, or town, containing
a hundred square miles, must soon be
the great, the visible, and dazzling
centre, the mistress of fashions,
and the fountain of politics. There
may be a free or shackled press in
this city, and the streams which may
issue from it may over flow the
country, and they will be poisonous
or pure, as the fountain may be
corrupt or not. But not to dwell on
a subject that must give pain to the
virtuous friends of freedom, I will
only add, can a free and enlightened
people create a common head so
extensive, so prone to corruption
and slavery, as this city probably
will be, when they have it in their
power to form one pure and chaste,
frugal and republican?
THE FEDERAL FARMER
Antifederalist No. 44
WHAT CONGRESS CAN DO; WHAT A STATE
CAN NOT
"DELIBERATOR" appeared in The
Freeman's Journal; or, The
North-American Intelligencer,
February 20, 1788.
A writer in the Pennsylvania
Packet, under the signature of A
Freeman, has lately entered the
lists as another champion for the
proposed constitution. Particularly
he has endeavored to show that our
apprehensions of this plan of
government being a consolidation of
the United States into one
government, and not a confederacy of
sovereign independent states, is
entirely groundless; and it must be
acknowledged that he has advocated
this cause with as much show of
reason, perhaps, as the subject will
admit.
The words states, several
states, and united states are, he
observes, frequently mentioned in
the constitution. And this is an
argument that their separate
sovereignty and independence cannot
be endangered! He has enumerated
a variety of matters which, he says,
congress cannot do; and which the
states, in their individual
capacity, must or may do, and thence
infers their sovereignty and
independence. In some of these,
however, I apprehend he is a little
mistaken.
1. "Congress cannot train the
militia." This is not strictly true.
For by the 1st Article they are
empowered "to provide for
organizing, arming, and
disciplining" them; and tho' the
respective states are said to have
the authority of training the
militia, it must be "according to
the discipline prescribed by
Congress." In this business,
therefore, they will be no other
than subalterns under Congress, to
execute their orders; which, if they
shall neglect to do, Congress will
have constitutional powers to
provide for, by any other means they
shall think proper. They shall have
power to declare what description of
persons shall compose the militia;
to appoint the stated times and
places for exercising them; to
compel personal attendance, whether
when called for into actual service,
or on other occasions, under what
penalties they shall think proper,
without regard to scruples of
conscience or any other
consideration. Their executive
officer may march and countermarch
them from one extremity of the state
to the other-and all this without so
much as consulting the legislature
of the particular states to which
they belong! Where then is that
boasted security against the
annihilation of the state
governments, arising from "the
powerful military support" they will
have from their militia?
2. "Congress cannot enact
laws for the inspection of the
produce of the country." Neither is
this strictly true. Their power "to
regulate commerce with foreign
nations and among the several
states, and to make all laws which
shall be necessary and proper for
carrying this power (among others
vested in them by the constitution)
into execution," most certainly
extends to the enacting of
inspection laws. The particular
states may indeed propose such
laws to them; but it is expressly
declared, in the lst article, that
"all such laws shall be subject to
the revision and control of the
Congress."
3. "The several states can
prohibit or impose duties on the
importation of slaves into their own
ports." Nay, not even this can they
do, "without the consent of
Congress," as is expressly declared
in the close of the lst article.
The duty which Congress may, and it
is probable will lay on the
importation of slaves, will form a
branch of their revenue. But this
impost, as well as all others, "must
be uniform throughout the United
States." Congress therefore cannot
consent that one state should impose
an additional duty on this article
of commerce, unless all other states
should do the same; and it is not
very likely that some of the
states will ever ask this favor.
4. "Congress cannot interfere
with the opening of rivers and
canals; the making or regulation of
roads, except post roads; building
bridges; erecting ferries; building
lighthouses, etc." In one case,
which may very frequently happen,
this proposition also fails. For if
the river, canal, road, bridge,
ferry, etc., be common to two
states, or a matter in which they
may be both concerned, and
consequently must both concur, then
the interference and consent of
Congress becomes absolutely
necessary, since it is declared in
the constitution that "no state
shall, without the consent of
Congress, enter into any agreement
or compact with another state."
5. "The elections of the
President, Vice President, senators
and representatives are exclusively
in the hands of the states-even as
to filling vacancies." This, in one
important part, is not true. For,
by the 2d article, "in case of the
removal of the President from
office, or of his death,
resignation, or inability to
discharge the duties of the said
office, the same shall devolve on
the Vice President, and the Congress
may by law provide for the case of
removal, death, etc., both of the
President and Vice President,
declaring what officer shall then
act as president, and such officer
shall act accordingly, until the
disability be removed, or a
president shall be elected." But no
such election is provided for by the
constitution, till the return of the
periodical election at the
expiration of the four years for
which the former president was
chosen. And thus may the great
powers of this supreme magistrate of
the United States be exercised,
for years together, by a man who,
perhaps, never had one vote of the
people for any office of government
in his life.
6. "Congress cannot interfere
with the constitution of any state."
This has been often said, but alas,
with how little truth-since it is
declared in the 6th article that
"this constitution and the laws of
the United States which shall be
made in pursuance thereof, and all
treaties, etc., shall be the supreme
law of the land, and every state
shall be bound thereby, anything in
the constitution or laws of any
state to the contrary
notwithstanding."
But, sir, in order to form a
proper judgment of the probable
effects of this plan of general
government on the sovereignties of
the several states, it is necessary
also to take a view of what Congress
may, constitutionally, do and of
what the states may not do. This
matter, however, the above writer
has thought proper to pass over in
silence. I would therefore beg
leave in some measure, to supply
this omission; and if in anything I
should appear to be mistaken I hope
he will take the same liberty with
me that I have done with him-he will
correct my mistake.
1. Congress may, even in
time of peace, raise an army of
100,000 men, whom they may canton
through the several states, and
billet out on the inhabitants, in
order to serve as necessary
instruments in executing their
decrees.
2. Upon the inhabitants of any
state proving refractory to the will
of Congress, or upon any other
pretense whatsoever, Congress may
can out even all the militia of as
many states as they think proper,
and keep them in actual service,
without pay, as long as they please,
subject to the utmost rigor of
military discipline, corporal
punishment, and death itself not
excepted.
3. Congress may levy and collect
a capitation or poll tax, to what
amount they shall think proper; of
which the poorest taxable in the
state must pay as much as the
richest.
4. Congress may, under the
sanction of that clause in the
constitution which empowers them to
regulate commerce, authorize the
importation of slaves, even into
those states where this iniquitous
trade is or may be prohibited by
their laws or constitutions.
5. Congress may, under the
sanction of that clause which
empowers them to lay and collect
duties (as distinct from imposts and
excises) impose so heavy a stamp
duty on newspapers and other
periodical publications, as shall
effectually prevent all necessary
information to the people through
these useful channels of
intelligence.
6. Congress may, by imposing a
duty on foreigners coming into the
country, check the progress of its
population. And after a few years
they may prohibit altogether, not
only the emigration of foreigners
into our country, but also that of
our own citizens to any other
country.
7. Congress may withhold, as
long as they think proper, all
information respecting their
proceedings from the people.
8. Congress may order the
elections for members of their own
body, in the several states, to be
held at what times, in what places,
and in what manner they shall think
proper. Thus, in Pennsylvania, they
may order the elections to be held
in the middle of winter, at the city
of Philadelphia; by which means the
inhabitants of nine-tenths of the
state will be effectually (tho'
constitutionally) deprived of the
exercise of their right of suffrage.
9. Congress may, in their
courts of judicature, abolish trial
by jury in civil cases altogether;
and even in criminal cases, trial by
a jury of the vicinage is not
secured by the constitution. A
crime committed at Fort Pitt may be
tried by a jury of the citizens of
Philadelphia.
10. Congress may, if they shall
think it for the "general welfare,"
establish an uniformity in religion
throughout the United States. Such
establishments have been thought
necessary, and have accordingly
taken place in almost all the other
countries in the world, and will no
doubt be thought equally necessary
in this.
11. Though I believe it is not
generally so understood, yet certain
it is, that Congress may emit paper
money, and even make it a legal
tender throughout the United States;
and, what is still worse, may, after
it shall have depreciated in the
hands of the people, call it in by
taxes, at any rate of depreciation
(compared with gold and silver)
which they may think proper. For
though no state can emit bills of
credit, or pass any law impairing
the obligation of contracts, yet the
Congress themselves are under no
constitutional restraints on these
points.
12. The number of representatives
which shall compose the principal
branch of Congress is so small as to
occasion general complaint.
Congress, however, have no power to
increase the number of
representatives, but may reduce it
even to one fifth part of the
present arrangement.
13. On the other hand, no state
can call forth its militia even to
suppress any insurrection or
domestic violence which may take
place among its own citizens. This
power is, by the constitution,
vested in Congress.
14. No state can compel one of
its own citizens to pay a debt due
to a citizen of a neighboring state.
Thus a Jersey-man will be unable to
recover the price of a turkey sold
in the Philadelphia market, if the
purchaser shall be inclined to
dispute, without commencing an
action in one of the federal courts.
15. No state can encourage its
own manufactures either by
prohibiting or even laying a duty on
the importation of foreign articles.
16. No state can give relief to
insolvent debtors, however
distressing their situation may be,
since Congress will have the
exclusive right of establishing
uniform laws on the subject of
bankruptcies throughout the United
States; and the particular states
are expressly prohibited from
passing any law impairing the
obligation of contracts.
DELIBERATOR
Antifederalist No. 45
POWERS OF NATIONAL GOVERNMENT
DANGEROUS TO STATE GOVERNMENTS; NEW
YORK AS AN EXAMPLE
Robert Yates, a delegate to the 1787
convention from New York, left on
July 10, 1787. He became an
Antifederalist leader. Under the
nome de plume "Sydney" he wrote in
the New York Daily Patriotic
Register, June 13 and 14, 1788.
TO THE CITIZENS OF THE STATE OF NEW
YORK.
Although a variety of objections
to the proposed new constitution for
the government of the United States
have been laid before the public by
men of the best abilities, I am led
to believe that representing it in a
point of view which has escaped
their observation may be of use,
that is, by comparing it with the
constitution of the State of New
York.
The following contrast is
therefore submitted to the public,
to show in what instances the powers
of the state government will be
either totally or partially
absorbed, and enable us to determine
whether the remaining powers will,
from those kind of pillars, be
capable of supporting the mutilated
fabric of a government which even
the advocates for the new
constitution admit excels "the
boasted models of Greece or Rome,
and those of all other nations, in
having precisely marked out the
power of the government and the
rights of the people."
It may be proper to premise that
the pressure of necessity and
distress (and not corruption) had a
principal tendency to induce the
adoption of the state constitutions
and the existing confederation; that
power was even then vested in the
rulers with the greatest caution;
and that, as from every circumstance
we have reason to infer that the Dew
constitution does not originate from
a pure source, we ought deliberately
to trace the extent and tendency of
the trust we are about to repose,
under the conviction that a
reassumption of that trust will at
least be difficult, if not
impracticable. If we take a
retrospective view of the measures
of Congress. . . . we can scarcely
entertain a doubt but that a plan
has long since been framed to
subvert the confederation; that that
plan has been matured with the
most persevering industry and
unremitted attention; and that the
objects expressed in the preamble to
the constitution, that is "to
promote the general welfare and
secure the blessings of liberty to
ourselves and our posterity," were
merely the ostensible, and not
the real reasons of its framers. . .
The state governments are
considered in . . . [the new
constitution] as mere dependencies,
existing solely by its toleration,
and possessing powers of which they
may be deprived whenever the general
government is disposed so to do. If
then the powers of the state
governments are to be totally
absorbed, in which all agree, and
only differ as to the mode-whether
it will be effected by a rapid
progression, or by as certain, but
slower, operations-what is to limit
the oppression of the general
government? Where are the rights,
which are declared to be incapable
of violation? And what security
have people against the wanton
oppression of unprincipled
governors? No constitutional
redress is pointed out, and no
express declaration is contained in
it, to limit the boundaries of their
rulers. Beside which the mode and
period of their being elected tends
to take away their responsibility to
the people over whom they may, by
the power of the purse and the
sword, domineer at discretion. Nor
is there a power on earth to tell
them, What dost thou? or, Why dost
thou so? I shall now proceed to
compare the constitution of the
state of New York with the proposed
federal government, distinguishing
the paragraphs in the former, which
are rendered nugatory by the latter;
those which are in a great measure
enervated, and such as are in the
discretion of the general government
to permit or not....
1 & 37
The 1st "Ordains, determines,
and declares that no authority shall
on any pretence whatever be
exercised over the people or the
members of this State, but such as
shall be derived from and granted by
them."
The 37th, "That no purchases or
contracts for the sale of lands with
or of the Indians within the limits
of this state, shall be binding on
the Indians, or deemed valid, unless
made under the authority and with
the consent of the legislature of
this state."
. . . What have we reasonably to
expect will be their conduct [i.e.,
the new national government] when
possessed of the powers "to regulate
commerce with foreign nations, and
among the several states, and with
the Indian tribes," when they are
armed with legislative, executive,
and judicial powers, and their laws
the supreme laws of the land. And
when the states are prohibited,
without the consent of Congress, to
lay any "imposts or duties on
imports," and if they do they shall
be for the use of the Treasury of
the United States-and all such laws
subject to the revision and control
of Congress.
It is . . . evident that this
state, by adopting the new
government, will enervate their
legislative rights, and totally
surrender into the hands of Congress
the management and regulation of the
Indian trade to an improper
government, and the traders to be
fleeced by iniquitous impositions,
operating at one and the same time
as a monopoly and a poll-tax. . . .
The 2nd provides "that the
supreme legislative power within
this state shall be vested in two
separate and distinct bodies of men,
the one to be called the assembly,
and the other to be called the
senate of the state of New York, who
together shall form the
legislature."
The 3rd provides against laws
that may be hastily and
inadvertently passed, inconsistent
with the spirit of the
constitution and the public good,
and that "the governor, the
chancellor and judges of the supreme
court, shall revise all bills about
to be passed into laws, by the
legislature."
The 9th provides "that the
assembly shall be the judge of their
own members, and enjoy the same
privileges, and proceed in doing
business in like manner as the
assembly of the colony of New York
of right formerly did."
The 12th provides "that the
senate shall, in like manner, be
judges of their own members," etc.
The 31st describes even the
style of laws-that the style of alt
laws shall be as follows: "Be it
enacted by the people of the state
of New York represented in senate
and assembly," and that all writs
and proceedings shall run in the
name of the people of the state
of New York, and tested in the name
of the chancellor or the chief judge
from whence they shall issue.
The powers vested in the
legislature of this state by these
paragraphs will be weakened, for the
proposed new government declares
that "all legislative powers therein
granted shall be vested in a
congress of the United States, which
shall consist of a senate and a
house of representatives," and it
further prescribes, that "this
constitution and the laws of the
United States, which shall be made
in pursuance thereof; and all
treaties made, or which shalt 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,
anything in the constitution or laws
of any state to the contrary
notwithstanding; and the members of
the several state legislatures, and
all executive and judicial officers,
both of the United States and of the
several states, shall be bound by
oath or affirmation to support this
constitution."
Those who are full of faith,
suppose that the words "in pursuance
thereof" are restrictive, but if
they reflect a moment and take into
consideration the comprehensive
expressions of the instrument, they
will find that their restrictive
construction is unavailing, and this
is evidenced by 1st art., 8th sect.,
where this government has a power
"to lay and collect all taxes,
duties, imposts and excises, to
pay the debts, and provide for the
common defense and general welfare
of the United States," and also "to
make all laws which shall be
necessary and proper for carrying
into execution the foregoing powers
vested by this constitution in the
government of the United States, or
in any department or office
thereof."
. . . . To conclude my
observation on this head, it appears
to me as impossible that these
powers in the state constitution and
those in the general government can
exist and operate together, as it
would be for a man to serve two
masters whose interests clash, and
secure the approbation of both. Can
there at the same time and place be
and operate two supreme
legislatures, executives, and
judicials? Will a "guarantee of a
republican form of government to
every state in the union" be of any
avail, or secure the establishment
and retention of state rights?
If this guarantee had remained,
as it was first reported by the
committee of the whole house, to
wit, "that a republican
constitution, and its existing laws,
ought to be guaranteed to each state
by the United States," it would have
been substantial; but the changing
the word constitution into the word
form bears no favorable appearance.
. . .
13, 35, 41
By the 13th paragraph "no
member of this State shall be
disfranchised, or deprived of any of
the rights or privileges secured to
the subjects of the State by the
constitution, unless by the law of
the land, or judgment of its peers."
The 35th adopts, under certain
exceptions and modifications, the
common law of England, the statute
law of England and Great Britain,
and the acts of the legislature of
the colony, which together formed
the law on the 19th of April, 1775.
The 41st provides "that the
trial by jury remain inviolate
forever; that no acts of attainder
shall be passed by the legislature
of this State for crimes other than
those committed before the
termination of the present war. And
that the legislature shall at no
time hereafter institute any new
courts but such as shall proceed
according to the course of the
common law.
There can be no doubt that if
the new government be adopted in all
its latitude, every one of these
paragraphs will become a dead
letter. Nor will it solve any
difficulties, if the United States
guarantee "to every state in the
union a republican form of
government;" we may be allowed the
form and not the substance, and that
it was so intended will appear from
the changing the word constitution
to the word form and the omission of
the words, and its existing laws.
And I do not even think it
uncharitable to suppose that it was
designedly done; but whether it was
so or not, by leaving out these
words the jurisprudence of each
state is left to the mercy of the
new government....
17, 18, 19, 20, 21, 27, 40
The 17th orders "That the
supreme executive power and
authority of this State shall be
vested in a governor."
By the 18th he is commander-
in-chief of the militia and admiral
of the navy of the State; may grant
pardons to all persons convicted of
crimes; he may suspend the execution
of the sentence in treason or
murder.
By the 19th paragraph he is to
see that the laws and resolutions of
the legislature be faithfully
executed.
The 20th and 21st paragraphs
give the lieutenant-governor, on the
death, resignation, removal from
office, or impeachment of the
governor, all the powers of a
governor.
By the 27th he [the Governor]
is president of the council of
appointment, and has a casting vote
and the commissioning of all
officers.
The 40th paragraph orders that
the militia at all times, both in
peace and war, shall be armed and
disciplined, and kept in readiness;
in what manner the Quakers shall be
excused; and that a magazine of
warlike stores be forever kept
at the expense of the State, and by
act of the legislature, established,
maintained, and continued in every
county in the State.
Whoever considers the following
powers vested in the [national]
government, and compares them with
the above, must readily perceive
they are either all enervated or
annihilated.
By the 1st art., 8th sec.,
15th, 16th and 17th clauses,
Congress will be empowered to call
forth the militia to execute the
laws of the union, suppress
insurrections and repel invasions;
to provide for organizing, arming
and disciplining the militia, for
the governing such part of them as
may be employed in the service of
the United States, and for the
erection of forts, magazines, etc.
And by the 2nd art., 2nd sec.,
"The president shall be commander-
in-chief of the army and navy of the
United States, and of the militia of
the several States when called into
actual service of the United States.
. . . except in cases of
impeachment."
And by the 6th art., "The
members of the several state
legislatures, and all the executive
and judicial officers; both of the
United States, and of the several
states, shall be bound by oath or
affirmation to support the
constitution."
Can this oath be taken by those
who have already taken one under the
constitution of this state? ... From
these powers lodged in Congress and
the powers vested in the states, it
is clear that there must be a
government within a government; two
legislative, executive, and judicial
powers. The power of raising an
army in time of peace, and to
command the militia, will give the
president ample means to enforce the
supreme laws of the land. . . .
42
This paragraph provides "that
it shalt be in the discretion of the
legislature to naturalize all such
persons and in such manner as they
shall think proper."
The 1st art., 8th sec., 4th
clause, give to the new government
power to establish a uniform rule of
naturalization. And by the 4th
art., 2nd sec., "the citizens of
each state shall be entitled to all
the privileges and immunities of
citizens in the several states,"
whereby the clause is rendered
entirely nugatory.
From this contrast it appears
that the general government, when
completely organized, will absorb all
those powers of the state which the
framers of its constitution had
declared should be only exercised by
the representatives of the people of
the state; that the burdens and
expense of supporting a state
establishment will be perpetuated;
but its operations to ensure or
contribute to any essential measures
promotive of the happiness of the
people may be totally prostrated,
the general government arrogating to
itself the right of interfering in
the most minute objects of internal
police, and the most trifling
domestic concerns of every state, by
possessing a power of passing laws
"to provide for the general welfare
of the United States," which may
affect life, liberty and property
in every modification they may think
expedient, unchecked by cautionary
reservations, and unrestrained by a
declaration of any of those rights
which the wisdom and prudence of
America in the year 1776 held ought
to be at all events protected from
violation.
In a word, the new constitution
will prove finally to dissolve all
the power of the several state
legislatures, and destroy the rights
and liberties of the people; for the
power of the first will be all in
all, and of the latter a mere shadow
and form without substance, and if
adopted we may (in imitation of the
Carthagenians) say, Delenda vit
America.
SYDNEY
Antifederalist No. 46
"WHERE THEN IS THE RESTRAINT?"
This essay by "AN OLD WHIG"
(see AFP #'s Nos. 18-20, 49, 50, and
70) appeared in the Maryland Gazette
and Baltimore Advertiser on Nov. 2,
1788.
Let us look to the first
article of the proposed new
constitution, which treats of the
legislative powers of Congress; and
to the eighth section, which
pretends to define those powers. We
find here that the Congress in its
legislative capacity, shall have the
power to lay and collect taxes,
duties, and excises; to borrow
money; to regulate commerce; to fix
the rule for naturalization and the
laws of bankruptcy; to coin money;
to punish counterfeiters; to
establish post offices and post
roads; to secure copy rights to
authors; to constitute tribunals; to
define and punish piracies; to
declare war; to raise and support
armies; to provide and support a
navy; to call forth the militia; to
organize, arm and discipline the
militia; to exercise absolute power
over a district ten miles square,
independent of all the State
legislatures, and to be alike
absolute over all forts, magazines,
arsenals, dock-yards, and other
needful buildings thereunto
belonging. This is a short abstract
of the powers given to Congress.
These powers are very extensive, but
I shall not stay at present to
inquire whether these express powers
were necessary to be given to
Congress? Whether they are too
great or too small?
My object is to consider that
undefined, unbounded and immense
power which is comprised in the
following clause - "And 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 in any
department or offices thereof." Under
such a clause as this, can anything
be said to be reserved and kept back
from Congress? Can it be said that
the Congress have no power but what
is expressed? "To make all laws
which shall be necessary and proper"
- or, in other words, to make all
such laws which the Congress shall
think necessary and proper - for who
shalt judge for the legislature what
is necessary and proper? Who shall
set themselves above the sovereign?
What inferior legislature shall set
itself above the supreme
legislature? To me it appears that
no other power on earth can dictate
to them, or control them, unless by
force; and force, either internal or
external, is one of those calamities
which every good man would wish his
country at all times to be delivered
from. This generation in America
have seen enough of war, and its
usual concomitants, to prevent all
of us from wishing to see any more
of it-all except those who make a
trade of war. But to the question -
without force what can restrain the
Congress from making such laws as
they please? What limits are there
to their authority? I fear none at
all. For surely it cannot be justly
said that they have no power but
what is expressly given to them,
when by the very terms of their
creation they are vested with the
powers of making laws in all cases
-necessary and proper; when from the
nature of their power, they must
necessarily be the judges what laws
are necessary and proper.
The British act of Parliament,
declaring the power of Parliament to
make laws to bind America in all
cases whatsoever, was not more
extensive. For it is as true as a
maxim, that even the British
Parliament neither could nor would
pass any law in any case in which
they did not either deem it
necessary and proper to make such a
law, or pretend to deem it so. And
in such cases it is not of a
farthing consequence whether they
really are of opinion that the law
is necessary and proper, or only
pretend to think so, for who can
overrule their pretensions? No one;
unless we had a Bill of Rights, to
which we might appeal and under
which we might contend against any
assumption of undue power, and
appeal to the judicial branch of the
government to protect us by their
judgments. This reasoning, I fear,
is but too just. And yet, if any
man should doubt the truth of it,
let me ask him one other question:
What is the meaning of the latter
part of the clause which vests the
Congress with the authority of
making all laws which shall be
necessary and proper for carrying
into execution all other powers
(besides the foregoing powers
vested, etc., etc.)? Was it thought
that the foregoing powers might
perhaps admit of some restraint, in
their construction as to what was
necessary and proper to carry them
into execution? Or was it deemed
right to add still further that they
should not be restrained to the
powers already named? Besides the
powers already mentioned, other
powers may be assumed hereafter as
contained by implication in this
constitution. The Congress shall
judge of what is necessary and
proper in all these cases, and in
all other cases-in short, in all
cases whatsoever.
Where then is the restraint?
How are Congress bound down to the
powers expressly given? What is
reserved, or can be reserved? Yet
even this is not all. As if it were
determined that no doubt should
remain, by the sixth article of the
Constitution it is declared 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, shalt be the supreme
law of the land, and the judges in
every state shall be bound thereby,
any thing in the Constitutions or
laws of any State to the contrary
notwithstanding." The Congress are
therefore vested with the supreme
legislative power, without control.
In giving such immense, such
unlimited powers, was there no
necessity of a Bill of Rights, to
secure to the people their
liberties?
Is it not evident that we are
left wholly dependent on the wisdom
and virtue of the men who shall from
time to time be the members of
Congress? And who shall be able to
say seven years hence, the members
of Congress will be wise and good
men, or of the contrary character?
Antifederalist No. 47
"BALANCE" OF DEPARTMENTS NOT
ACHIEVED UNDER NEW CONSTITUTION
This essay is made up of of excerpts
from "CENTINEL's," letters of
October 5 and 24, 1787. Taken from
The Independent Gazetteer,
I am fearful that the principles
of government inculcated in Mr.
[John] Adams' treatise [Defence of
the Constitutions of Government of
the United States of America], and
enforced in the numerous essays and
paragraphs in the newspapers, have
misled some well designing members
of the late Convention. But it
will appear in the sequel, that
the construction of the proposed
plan of government is infinitely
more extravagant.
I have been anxiously expecting
that some enlightened patriot would,
ere this, have taken up the pen to
expose the futility, and counteract
the baneful tendency of such
principles. Mr. Adams' sine qua non
of a good government is three
balancing powers; whose repelling
qualities are to produce an
equilibrium of interests, and
thereby promote the happiness of the
whole community. He asserts that
the administrators of every
government, will ever be actuated by
views of private interest and
ambition, to the prejudice of the
public good; that therefore the only
effectual method to secure the
rights of the people and promote
their welfare, is to create an
opposition of interests between the
members of two distinct bodies, in
the exercise of the powers of
government, and balanced by those of
a third. This hypothesis supposes
human wisdom competent to the task
of instituting three co-equal orders
in government, and a corresponding
weight in the community to enable
them respectively to exercise their
several parts, and whose views and
interests should be so distinct as
to prevent a coalition of any two of
them for the destruction of the
third. Mr. Adams, although he has
traced the constitution of every
form of government that ever
existed, as far as history affords
materials, has not been able to
adduce a single instance of such a
government. He indeed says that the
British constitution is such in
theory, but this is rather a
confirmation that his principles are
chimerical and not to be reduced
to practice. If such an
organization of power were
practicable, how long would it
continue? Not a day-for there is so
great a disparity in the talents,
wisdom and industry of mankind, that
the scale would presently
preponderate to one or the other
body, and with every accession of
power the means of further increase
would be greatly extended. The
state of society in England is much
more favorable to such a scheme of
government than that of America.
There they have a powerful
hereditary nobility, and real
distinctions of rank and interests;
but even there, for want of that
perfect equality of power and
distinction of interests in the
three orders of government, they
exist but in name. The only
operative and efficient check upon
the conduct of administration, is
the sense of the people at large.
Suppose a government could be
formed and supported on such
principles, would it answer the
great purposes of civil society? If
the administrators of every
government are actuated by views of
private interest and ambition, how
is the welfare and happiness of the
community to be the result of such
jarring adverse interests?
Therefore, as different orders
in government will not produce the
good of the whole, we must recur to
other principles. I believe it will
be found that the form of
government, which holds those
entrusted with power in the greatest
responsibility to their
constituents, the best calculated
for freemen. A republican, or free
government, can only exist where the
body of the people are virtuous, and
where property is pretty equally
divided. In such a government the
people are the sovereign and their
sense or opinion is the criterion of
every public measure. For when
this ceases to be the case, the
nature of the government is changed,
and an aristocracy, monarchy or
despotism will rise on its ruin.
The highest responsibility is to be
attained in a simple structure of
government, for the great body of
the people never steadily attend to
the operations of government, and
for want of due information are
liable to be imposed on. If you
complicate the plan by various
orders, the people will be perplexed
and divided in their sentiment
about the source of abuses or
misconduct; some will impute it to
the senate, others to the house of
representatives, and so on, that the
interposition of the people may be
rendered imperfect or perhaps wholly
abortive. But if, imitating
the constitution of Pennsylvania,
you vest all the legislative power
in one body of men (separating the
executive and judicial) elected for
a short period, and necessarily
excluded by rotation from
permanency, and guarded from
precipitancy and surprise by delays
imposed on its proceedings, you will
create the most perfect
responsibility. For then, whenever
the people feel a grievance, they
cannot mistake the authors, and will
apply the remedy with certainty and
effect, discarding them at the next
election. This tie of
responsibility will obviate all the
dangers apprehended from a single
legislature, and will the best
secure the rights of the people.
Having premised this much, I
shall now proceed to the examination
of the proposed plan of government,
and I trust, shall make it appear to
the meanest capacity, that it has
none of the essential requisites of
a free government; that it is
neither founded on those balancing
restraining powers, recommended by
Mr. Adams and attempted in the
British constitution, or possessed
of that responsibility to its
constituents, which, in my opinion,
is the only effectual security
for the liberties and happiness of
the people. But on the contrary,
that it is a most daring attempt to
establish a despotic aristocracy
among freemen, that the world has
ever witnessed....
Thus we see, the house of
representatives are on the part of
the people to balance the senate,
who I suppose will be composed of
the better sort, the well born, etc.
The number of the representatives
(being only one for every 30,000
inhabitants) appears to be too few,
either to communicate the requisite
information of the wants, local
circumstances and sentiments of so
extensive an empire, or to prevent
corruption and undue influence, in
the exercise of such great powers;
the term for which they are to be
chosen, too long to preserve a due
dependence and accountability to
their constituents; and the mode and
places of their election not
sufficiently ascertained, for as
Congress have the control over both,
they may govern the choice, by
ordering the representatives of a
whole State, to be elected in one
place, and that too may be the most
inconvenient.
The senate, the great efficient
body in this plan of government, is
constituted on the most unequal
principles. The smallest State in
the Union has equal weight with the
great States of Virginia,
Massachusetts, or Pennsylvania. The
senate, besides its legislative
functions, has a very considerable
share in the executive; none of the
principal appointments to office can
be made without its advice and
consent. The terin and mode of its
appointment will lead to permanency.
The members are chosen for six
years, the mode is under the control
of Congress, and as there is no
exclusion by rotation, they may be
continued for life, which, from
their extensive means of influence,
would follow of course. The
President, who would be a mere
pageant of State, unless he
coincides with the views of the
senate, would either become the bead
of the aristocratic junto in that
body, or its minion; besides, their
influence being the most
predominant, could the best secure
his re-election to office. And from
his power of granting pardons, he
might screen from punishment the
most treasonable attempts on the
liberties of the people, when
instigated by the senate....
Mr. [James] Wilson asserts that
never was charge made with less
reason, than that which predicts the
institution of a baneful aristocracy
in the federal Senate.' In my first
number, I stated that this body
would be a very unequal
representation of the several
States, that the members being
appointed for the long term of six
years, and there being no exclusion
by rotation, they might be continued
for life, which would follow of
course from their extensive means
of influence, and that possessing a
considerable share in the executive
as well as the legislative, it would
become a permanent aristocracy, and
swallow up the other orders in the
government.
That these fears are not
imaginary, a knowledge of the
history of other nations, where the
powers of government have been
injudiciously placed, will fully
demonstrate. Mr. Wilson says, "the
senate branches into two characters;
the one legislative and the other
executive. In its legislative
character it can effect no purpose,
without the co-operation of the
house of representatives, and in its
executive character it can
accomplish no object without the
concurrence of the president. Thus
fettered, I do not know any act
which the senate can of itself
perform, and such dependence
necessarily precludes every idea of
influence and superiority." This I
confess is very specious, but
experience demonstrates that checks
in government, unless accompanied
with adequate power and
independently placed, prove
merely nominal, and will be
inoperative. Is it probable, that
the President of the United States,
limited as he is in power, and
dependent on the will of the senate,
in appointments to office, will
either have the firmness or
inclination to exercise his
prerogative of a conditional control
upon the proceedings of that body,
however injurious they may be to the
public welfare? It will be his
interest to coincide with the views
of the senate, and thus become the
head of the aristocratic junto. The
king of England is a constituent
part in the legislature, but
although an hereditary monarch, in
possession of the whole executive
power, including the unrestrained
appointment to offices, and an
immense revenue, enjoys but in name
the prerogative of a negative upon
the parliament. Even the king of
England, circumstanced as he is, has
not dared to exercise it for near a
century past. The check of the
house of representatives upon the
senate will likewise be rendered
nugatory for want of due weight in
the democratic branch, and from
their constitution they may become
so independent of the people as to
be indifferent of its interests.
Nay, as Congress would have the
control over the mode and place of
their election, by ordering the
representatives of a whole state to
be elected at one place, and that
too the most inconvenient, the
ruling powers may govern the choice,
and thus the house of
representatives may be composed of
the creatures of the senate. Still
the semblance of checks may remain,
but without operation.
This mixture of the
legislative and executive moreover
highly tends to corruption. The
chief improvement in government, in
modern times, has been the complete
separation of the great distinctions
of power; placing the legislative in
different hands from those which
hold the executive; and again
severing the judicial part from the
ordinary administrative. "When the
legislative and executive powers
(says Montesquieu) are united in the
same person or in the same body of
magistrates, there can be no
liberty."
CENTINEL
Antifederalist No. 48
NO SEPARATION OF DEPARTMENTS RESULTS
IN NO RESPONSIBILITY
"LEONIDAS," from London, obviously
did not understand Article II
Section I of the proposed new
Constitution. But his works were
welcomed in the London Times, and
either The Freeman's Journal, or The
North-American Intelligencer on July
30, 1788.
In the new constitution for the
future government of the thirteen
United States of America, the
President and Senate have all the
executive and two thirds of the
Legislative power.
This is a material deviation
from those principles of the English
constitution, for which they fought
with us; and in all good governments
it should be a fundamental maxim,
that, to give a proper balance to
the political system, the different
branches of the legislature should
be unconnected, and the legislative
and executive powers should be
separate. By the new constitution
of America this union of the
executive and legislative bodies
operates in the most weighty matters
of the state. They jointly make all
treaties; they jointly appoint all
officers civil and military; and,
they jointly try all impeachments,
either of their own members, or the
officers appointed by themselves.
In this formidable combination
of power, there is no
responsibility. And where there is
power without responsibility, how
can there be liberty?
The president of the United
States is elected for four years,
and each of the thirteen states has
one vote at his election; which vote
is not of the people, but of
electors two degrees from the
people.
The senate is a body of six
years duration; and as in the choice
of presidents, the largest state has
but one vote, so it is in the choice
of senators. Now this shows, that
responsibility is as little to be
apprehended from amenability to
constituents, as from the terror of
impeachment; for to the members of
the senate it is clear, that trial
by impeachment is nothing but
parade.
From such an union in
governments, it requires no great
depth of political knowledge to
prophesy, that monarchy or
aristocracy must be generated, and
perhaps of the most grievous kind.
The only check in favor of the
democratic principle is the house of
representatives; but its smallness
of number, and great comparative
disparity of power, render that
house of little effect to promote
good or restrain bad government.
The power given to this ill-
constructed senate is, to judge of
what may be for the general welfare;
and such engagements, when made the
acts of Congress, become the supreme
laws of the land.
This is a power co-extensive
with every possible object of human
legislation. Yet there is no
restraint, no charter of rights, no
residuum of human privileges, not
intended to be given up to society.
The rights of conscience, the
freedom of the press, and trial by
jury, are at the mercy of this
senate. Trial by jury has been
already materially injured. The
trial in criminal cases is not by
twelve men of the vicinage, or of
the county, but of the state; and
the states are from fifty to seven
hundred miles in extent! In
criminal cases this new system says,
the trial shall be by jury. On
civil cases it is silent. There it
is fair to infer, that as in
criminal cases it has been
materially impaired, in civil cases
it may be altogether omitted. But
it is in truth, strongly
discountenanced in civil cases; for
this new system gives the supreme
court in matters of appeal,
jurisdiction both of law and fact.
This being the beginning of
American freedom, it is very clear
the ending will be slavery, for it
cannot be denied that this
constitution is, in its first
principles, highly and dangerously
oligarchical; and it is every where
agreed, that a government
administered by a few, is, of all
governments, the worst.
LEONIDAS
Antifederalist No. 49
ON CONSTITUTIONAL CONVENTIONS
(PART 1)
The following essay is in two
parts: the first is by
"MASSACHUSETTENSIS," and is
reprinted from The Massachusetts
Gazette of January 29, 1788; the
second part was written by "AN OLD
WHIG," and is taken from The
New-York Journal of November 27,
1787.
That the new constitution
cannot make a union of states, but
only of individuals, and purposes
the beginning of one new society,
one new government in all matters,
is evident from these
considerations, viz: It marks no
line of distinction between separate
state matters, and what would of
right come under the control of the
powers ordained in a union of
states. To say that no line could
be drawn, is giving me the argument.
For what can be more absurd than to
say, that states are united where a
general power is established that
extends to all objects of
government, i.e., all that exist
among the people who make the
compact? And is it not clear that
Congress have the right (by the
constitution), to make general laws
for proving all acts, records,
proceedings, and the effect thereof,
in what are now called the states?
Is it possible after this that any
state act can exist, or any public
business be done, without the
direction and sanction of Congress,
or by virtue of some subordinate
authority? If not, how in the
nature of things can there be a
union of states? Does not the
uniting of states, as states,
necessarily imply the existence of
separate state powers?
Again, the constitution makes
no consistent, adequate provision
for amendments to be made to it by
states, as states. Not they who
drew up the amendments (should any
be made), but they who ratify
them, must be considered as making
them. Three fourths of the
legislatures of the several states,
as they are now called, may ratify
amendments-that is, if Congress see
fit, but not without. Where is then
any independent state authority
recognized in the plan? And if
there is no independent state
authority, how can there be a union
of states? But is it not a question
of importance why the states in
their present capacity, cannot
ratify the original? I mean, why
the legislatures of the several
states cannot do this business? I
wish to be informed where to find
the regular exercise and legal
sanction of state power, if the
legislative authority of the state
is set aside. Have the people some
other constitutional means by which
they can give their united voice in
state affairs? This leads me to
observe, that should the new
constitution be received as it
stands, it can never be proved that
it originated from any proper state
authority; because there is no such
authority recognized either in the
form of it, or in the mode fixed
upon for its ratification. It says,
"We the people of the United
States," etc., make this
constitution; but does this phrase,
"We the people of the United
States," prove that the people are
acting in state character, or that
the several states must of necessity
exist with separate governments?
Who that understands the subject
will believe either? ...
The plan does not acknowledge
any constitutional state authority
as necessary in the ratification of
it. This work is to be done by
a mere convention, only in
consequence of mere recommendation;
which does by no means amount to a
proper state act. As no state act
can exist independent of the supreme
authority of the state, and this
authority is out of the question in
the ratification of the new
constitution, it clearly follows
that the ratifying of it, by a mere
convention, is no proper state
business. To conclude, the people
may make the original, but the
people have no right to alter it.
Congress may order this matter just
as they please, and consequently
have whom they please elected for
governors or representatives, not of
the states but of the people; and
not of the people as men but as
property. . . .
MASSACHUSETTENSIS
It appears to me that I was
mistaken in supposing that we could
so very easily make trial of this
constitution, and again change it at
our pleasure. The conventions of
the several states cannot propose
any alterations-they are only
to give their assent and
ratification. And after the
constitution is once ratified, it
must remain fixed until two thirds
of both the houses of Congress shall
deem it necessary to propose
amendments; or the legislatures of
two thirds of the several states
shall make application to Congress
for the calling a convention for
proposing amendments - which
amendments shall not be valid until
they are ratified by the
legislatures of three fourths of the
several states, or by conventions in
three fourths thereof, as one or the
other mode of ratification may be
proposed by Congress. This appears
to me to be only a cunning way of
saying that no alteration shall ever
be made; so that whether it is a
good constitution or a bad
constitution, it will remain forever
unamended. Lycurgus, when he
promulgated his laws to the
Spartans, made them swear that they
would make no alterations in them
until he should return from a
journey which he was then about to
undertake. He chose never to
return, and therefore no alteration
could be made in his laws. The
people were made to believe that
they could make trial of his laws
for a few months or years, during
his absence, and as soon as he
returned they could continue
to observe them or reject at
pleasure. Thus this celebrated
republic was in reality established
by a trick. In like manner the
proposed constitution holds out a
prospect of being subject to be
changed if it be found necessary or
convenient to change it; but the
conditions upon which an alteration
can take place, are such as in all
probability will never exist. The
consequence will be that when the
constitution is once established it
never can be altered or amended
without some violent convulsion or
civil war.
The conditions, I say, upon
which any alterations can take
place, appear to me to be such as
never will exist. Two thirds of
both houses of congress, or the
legislatures of two thirds of the
states, must agree in desiring a
convention to be called. This will
probably never happen. But if it
should happen, then the convention
may agree to the amendments or not,
as they think right; and after all
three fourths of the states must
ratify the amendments. Before
all this labyrinth can be traced to
a conclusion, ages will revolve, and
perhaps the great principles upon
which our late glorious revolution
was founded, will be totally
forgotten. If the principles of
liberty are not firmly fixed and
established in the present
constitution, in vain may we hope
for retrieving them hereafter.
People once possessed of power are
always loathe to part with it; and
we shall never find two thirds of a
Congress voting or proposing
anything which shall derogate from
their own authority and importance,
or agreeing to give back to the
people any part of those privileges
which they have once parted with-so
far from it, that the greater
occasion there may be for a
reformation, the less likelihood
will there be of accomplishing it.
The greater the abuse of power, the
more obstinately is it always
persisted in. As to any expectation
of two thirds of the legislatures
concurring in such a request, it is
if possible still more remote. The
legislatures of the states will be
but forms and shadows, and it will
be the height of arrogance and
presumption in them, to turn their
thoughts to such high subjects.
After this constitution is once
established, it is too evident that
we shall be obliged to fill up the
offices of assemblymen and
councillors, as we do those of
constables, by appointing men to
serve whether they will or not, and
fining them if they refuse. The
members thus appointed, as soon as
they can hurry through a law or two
for repairing highways, or
impounding cattle, will conclude the
business of their sessions as
suddenly as possible, that they may
return to their own business. Their
heads will not be perplexed with the
great affairs of state. We need not
expect two thirds of them ever to
interfere in so momentous a question
as that of calling a continental
convention. The different
legislatures will have no
communication with one another, from
the time of the new constitution
being ratified to the end of the
world. Congress will be the great
focus of power as well as the great
and only medium of communication
from one state to another. The
great and the wise and the mighty
will be in possession of places and
offices; they will oppose all
changes in favor of liberty; they
will steadily pursue the acquisition
of more and more power to themselves
and their adherents....
AN OLD WHIG
Antifederalist No. 50
ON CONSTITUTIONAL CONVENTIONS
(PART 2)
Antifederalists sought a second
constitutional convention
immediately after conclusion of the
first. This essay by "AN OLD WHIG,"
is from either The Freeman's Journal
or The North-American Intelligencer,
of November 28, 1787.
It is true that the Continental
Convention have directed their
proposed constitution to be laid
before a Convention of Delegates to
be chosen in each state "for their
assent and ratification," which
seems to preclude the idea of any
power in the several Conventions of
proposing any alterations; or,
indeed, even of rejecting the plan
proposed if they should disapprove
of it. Still, however, the question
recurs, what authority the late
Convention had to bind the people
of the United States to any
particular form of government, or to
forbid them to adopt such form of
government, as they should think
fit. I know it is a language
frequent in the mouths of some
heaven-born Phaetons among us-who,
like the son of Apollo, think
themselves entitled to guide the
chariot of the sun-that common
people have no right to judge of the
affairs of government; that they are
not fit for it; that they should
leave these matters to their
superiors. This, however, is not
the language of men of real
understanding, even among the
advocates for the proposed
Constitution; but these still
recognize the authority of the
people, and will admit, at least in
words, that the people have a right
to be consulted. Then I ask, if the
people in the different states have
a right to be consulted in the new
form of continental government, what
authority could the late Convention
have to preclude them from proposing
amendments to the plan they should
offer? Had the Convention any right
to bind the people to the form of
government they should propose? Let
us consider this matter.
The late Convention were chosen
by the General Assembly of each
state. They had the sanction of
Congress. For what? To consider
what alterations were necessary to
be made in the articles of
Confederation. What have they
done? They have made a new
Constitution for the United States.
I will not say that in doing so they
have exceeded their authority; but,
on the other hand, I trust that no
man of understanding among them will
pretend to say that anything they
did, or could do, was of the least
avail to lessen the right of the
people to judge for themselves in
the last resort. This right is
perhaps unalienable; but, at all
events, there is no pretense for
saying that this right was ever
meant to be surrendered up into the
hands of the late Continental
Convention. The people have an
undoubted right to judge of every
part of the government which is
offered to them. No power on earth
has a right to preclude them; and
they may exercise this choice either
by themselves or their delegates
legally chosen in the state
Convention. I venture to say that
no man, reasoning upon Revolution
principles, can possibly controvert
this right.
Indeed, very few go so far as
to controvert the right of the
people to propose amendments. But
we are told the thing is
impracticable; that if we begin to
propose amendments there will be no
end to them; that the several states
will never agree in their
amendments; that we shall never
unite in any plan; that if we reject
this, we shall either have a worse
one or none at all; that we ought
therefore to adopt this at once
without alteration or amendment.
Now, these are very kind gentlemen
who insist upon doing so much good
for us, whether we will or not.
Idiots and maniacs ought certainly
to be restrained from doing
themselves mischief, and ought to be
compelled to that which is for their
own good. Whether the people of
America are to be considered in this
light and treated accordingly, is a
question which deserves, perhaps,
more consideration than it has yet
received. A contest between the
patients and their doctors, which
are mad or which are fools, might
possibly be a very unhappy one. I
hope at least that we shall be able
to settle this important business
without so preposterous a dispute.
What then would you have us do, it
may be asked? Would you have us
adopt the proposed constitution or
reject it? The method I would
propose is this:
1. Let the conventions of
each state, as they meet, after
considering the proposed
constitution, state their objections
and propose their amendments. So
far from these objections and
amendments clashing with each other
in irreconcilable discord, as it
has too often been suggested they
would do, that from what has been
hitherto published in the different
states in opposition to the proposed
constitution we have a right to
expect that they will harmonize in a
very great degree. The reason I say
so is that about the same time, in
very different parts of the
continent, the very same objections
have been made, and the very same
alterations proposed by different
writers, who I verily believe know
nothing at all of each other and
were very far from acting by a
premeditated concert; and that
others who have not appeared as
writers in the newspapers in the
different states, have appeared to
act and speak in perfect unison with
those objections and amendments,
particularly in the article of a
bill of rights; that in short, the
very same sentiments seem to have
been echoed from the different parts
of the continent by the opposers of
the proposed constitution. And
these sentiments have been very
little contradicted by its friends,
otherwise than by suggesting their
fears that by opposing the
constitution at present proposed, we
might be disappointed of any federal
government, or receive a worse one
than the present. It would be a
most delightful surprise to find
ourselves all of one opinion at
last. And I cannot forbear hoping
that when we come fairly to compare
our sentiments, we shalt find
ourselves much more nearly agreed,
than in the hurry and surprise in
which we have been involved on this
subject, we ever suffered ourselves
to imagine.
2. When the conventions have
stated these objections and
amendments, let them transmit them
to congress, and adjourn, praying
that congress will direct another
convention to be called from the
different states, to consider
of these objections and amendments,
and pledging themselves to abide by
whatever decision shall be made by
such future convention on the
subject whether it be to amend the
proposed constitution or to reject
any alterations, and ratify it as it
stands.
3. If a new convention of the
United States should meet, and
revise the proposed constitution,
let us agree to abide by their
decision. It is past a doubt that
every good citizen of America pants
for an efficient federal government.
T have no doubt we shall concur at
last in some plan of continental
government, even if many people
could imagine exceptions to it. But
if the exceptions which are made at
present shall be maturely
considered, and even be pronounced
by our future representatives as of
no importance (which I trust they
will not), even in that case I have
no doubt that almost every man will
give up his own private opinion and
concur in that decision.
4. If, by any means, another
continental convention should fail
to meet, then let the conventions of
the several states again assemble
and at last decide the great solemn
question, whether we shall adopt the
constitution now proposed or reject
it. And whenever it becomes
necessary to decide upon this point
one, at least, who from the
beginning has been invariably
anxious for the liberty and
independence of this country, will
concur in adopting and supporting
this constitution, rather than none;
though, I confess, I could easily
imagine some other form of
confederation which I should think
better entitled to my hearty
approbation, and indeed I am not
afraid of a worse.
AN OLD WHIG