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Mobius Strip Press: Extracts From Different States Ratification Debates of the Constitution

Mobius-Strip: A continuum of a relative surface

MobiusStripPress: A continuum of relative narratives

Constitutional Orthodoxy:

Constitutional Orthodoxy is adhering to the codified processes that were established within the Constitution as defined by the States (founders) during the ratification process.  Consequently, the founders dictated and enumerated the limitations and scope of the general government as a delegated entity within the Hybrid Constitutional Republic.  Returning to Constitutional Orthodoxy is the only course that will preserve the Constitution, Individual Liberty, and the Republic.


The purpose of this page is for providing key extracts from different States Ratification Debates as they were debating the Constitution. All of these support the premise of a limited and defined general government; that the general governments’ jurisdiction is strictly limited to the enumerated power within the Constitution. That the States are the sole and final arbiters over all powers not delegated to the general government in the Constitution. More importantly, that the Constitution is a compact written for and by the States and inherent to the stakeholders of the compact the States have the authority and power to place the general government back into the framework of the Constitution.


Extracts from the Massachusetts Ratification Debates

One can find the entire Massachusetts Debates here: Ratification of the Constitution by the State of Massachusetts

Gen. BROOKS (of Lincoln)
It was, therefore, he said, impossible that the state governments should be annihilated by the general government, and it was, he said, strongly implied, from that part of the section under debate which gave Congress power to exercise exclusive jurisdiction over the federal town, that they shall have it over no other place.  Gen. BROOKS (of Lincoln)

The powers that are granted to Congress by this instrument are great and extensive; but, sir, they are defined and limited, and, in my judgment, sufficiently checked; which I shall prove before I sit down. These powers have been the subject of long and ingenious debate. But the arguments that have been made use of against delegating these powers to the general government prove too much, being applicable to all delegated power; I mean the possible abuse of it. The very term government implies a supreme controlling power somewhere; a power to coerce, whenever coercion shall be necessary; of which necessity government must be the judge. This is admitted; if so, the power may be abused. Every gentleman must confess that we cannot give a power to do good, but it may be abused to do evil. If a merchant commits the care of a ship and cargo to the master, he may dispose of both, and appropriate the money to his own use. If we raise a body of men, and put arms into their hands for our defence, they may turn them against us and destroy us. All these things prove, however, that, in order to guard as much as possible against the abuse of those powers we delegate to government, there ought to be sufficient checks on them; every precaution should be used to secure the liberties of the people on the one hand, and not render government inefficient on the other. I believe, sir, such security is provided in this Constitution: if not, no consideration shall induce me to give my voice in its favor. But the people are secured by the following circumstances: —

1st. All the offices in Congress are elective, not hereditary. The President and senators are to be chosen by the interposition of the legislatures of the several states, who are the representatives and guardians of the people, whose honor and interest will lead them, in all human probability, to have good men placed in the general government.

2d. The representatives in Congress are to be chosen, every second year, by the people of the several states. Consequently, it lies with the people themselves to say who shall represent them. It will, then, be their own fault if they do not choose the best men in the commonwealth.
Who are Congress, then? They are ourselves; the men of our own choice, in whom we can confide; whose interest is inseparably connected with our own. Why is it, then, that gentlemen speak of Congress as some foreign body, as a set of men who will seek every opportunity to enslave us? Such insinuations are repugnant to the spirit of the Constitution.
But a worthy gentleman from Middleborough has told us, that, though they may be good men when chosen, they may become corrupt. They may so; nor is it in the power of angels or men to prevent it; but should this be the case, the Constitution has made provisions for such an event. When it happens, we shall know what method to adopt, in order to bring them to punishment. In all governments where offices are elective, there ever has been, and there ever will be, a competition of interests. They who are in office wish to keep in, and they who are out, to get in; the probable consequences of which will be, that they who are already in place will be attentive to the rights of the people, because they know that they are dependent on them for a future election, which can be secured by good behavior only. Besides, they who are out of office will watch them who are in, with a most critical eye, in order to discover and expose their malconduct, if guilty of any, that so they may step into their places. Every gentleman knows the influence that a desire to obtain a place, or the fear of losing it, hath on mankind. Mr. Borgh tells us, that, towards the close of the seven years for which the representatives are chosen in the British Parliament, they become exceedingly polite to the people. Why? Because they know there is an approaching election depending. This competition of interest, therefore, between those persons who are in and those who are out of office, will ever form one important check to the abuse of power in our representatives.

3d. Every two years there will be a revolution in the general government in favor of the people. At the expiration of the first two years, there will be a new choice of representatives; at the expiration of the second two years, there will be a new choice of President and representatives; and at the expiration of the third term, making six years from the commencement of the Congress, there will be a new choice of senators and representatives. We all know, sir, that power thus frequently reverting to the people will prove a security to their liberties, and a most important check to the power of the general government.

4th. Congress can make no laws that will oppress the people, which will not equally involve themselves in the oppression.
What possible motive, then, can Congress have to abuse their power? Can any man suppose that they will be so lost to their own interest as to abuse their power, knowing, at the same time, that they equally involve themselves in the difficulty? It is a most improbable supposition. This would be like a man's cutting off his nose to spite his face. I place this, sir, among the securities of the liberties of my fellow-citizens, and rejoice in it.

5th. Congress guaranty to every state in the Union a republican form of government, and engage to protect them against all foreign and domestic enemies; that is, as it hath been justly observed by the honorable gentleman [Mr. Adams] near me, of known and tried abilities as a politician, each state shall choose such republican form of government as they please, and Congress solemnly engage themselves to protect it from every kind of violence, whether of faction at home or enemies abroad. This is an admirable security of the people at large, as well as of the several governments of the states; consequently the general government cannot swallow up the local governments, as some gentlemen have suggested. Their existence is dependent on each other, and must stand or fall together. Should Congress ever attempt the destruction of the particular legislatures, they would be in the same predicament with Samson, who overthrew the house in which the Philistines were making sport at his expense; them he killed, indeed, but he buried himself in the ruins.

6th. Another check in favor of the people is this — that the Constitution provides for the impeachment, trial, and punishment of every officer in Congress, who shall be guilty of malconduct. With such a prospect, who will dare to abuse the powers vested in him by the people?

7th. Having thus considered several of the checks to the powers of Congress, which are interwoven with the Constitution, we will now suppose the worst that can take place in consequence of its adoption: I mean, that it shall be found in some of its parts oppressive to the people; still we have this dernier ressort — it may be amended. It is not, like the laws of the Medes and Persians, immutable. The fifth article provides for amendments.

It has been said, it will be difficult, after its ratification, to procure any alterations. By no means, sir, for this weighty reason — it is a general government, and, as such, will have a general influence; all states in the Union will feel the difficulty, and, feeling it, will readily concur in adopting the method provided by the Constitution. And having once made the trial, experience will teach us what amendments are necessary.

Viewing the Constitution in this light, I stand ready to give my vote for it, without any amendments at all. Yet, if the amendments proposed by your excellency will tend to conciliation, I readily admit them, not as a condition of acceptance, but as a matter of recommendation only; knowing that blessed are the peace-makers. I am ready, sir, to submit my life, my liberty, my family, my property, and, as far as my vote will go, the interest of my constituents, to this general government.
After all, if this Constitution was as perfect as the sacred volume is, it would not secure the liberties of the people, unless they watch their own liberties. Nothing written on paper will do this. It is therefore necessary that the people should keep a watchful, not an over-jealous, eye on their rulers; and that they should give all due encouragement to our colleges, schools of learning, &c., so that knowledge may be diffused through every part of our country. Ignorance and slavery, knowledge and freedom, are inseparably connected. While Americans remain in their present enlightened condition, and warmly attached to the cause of liberty, they cannot be enslaved. Should the general government become so lost to all sense of honor and the freedom of the people, as to attempt to enslave them, they who are the descendants of a race of men who have dethroned kings, would make an American Congress tremble, strip them of their public honors, and reduce them to the lowest state of degradation. Rev. Mr. STILLMAN


John Hancock
When the Convention met in the afternoon, his excellency, the PRESIDENT, observed, that a motion had been made and seconded, that this Convention do assent to and ratify the Constitution which had been under consideration; and that he had, in the former part of the day, intimated his intention of submitting a proposition to the Convention. My motive, says he, arises from my earnest desire to this Convention, my fellow-citizens, and the public at large, that this Convention may adopt such a form of government as may extend its good influence to every part of the United States, and advance the prosperity of the whole world. His situation, his excellency said, had not permitted him to enter into the debates of this Convention: it, however, appeared to him necessary, from what had been advanced in them, to adopt the form of government proposed; but, observing a diversity of sentiment in the gentlemen of the Convention, he had frequently had conversation with them on the subject, and from this conversation he was induced to propose to them, whether the introduction of some general amendments would not be attended with the happiest consequences. For that purpose, he should, with the leave of the honorable Convention, submit to their consideration a proposition, in order to remove the doubts and quiet the apprehensions of gentlemen; and if, in any degree, the object should be acquired, he should feel himself perfectly satisfied. He should therefore submit them; for he was, he said, unable to go more largely into the subject, if his abilities would permit him; relying on the candor of the Convention to bear him witness that his wishes for a good constitution were sincere. [His excellency then read his proposition.] — This, gentlemen, concluded his excellency, is the proposition which I had to make; and I submit it to your consideration, with the sincere wish that it may have a tendency to promote a spirit of union.  John Hancock

Samuel Adams
Your excellency's first proposition is, "that it be explicitly declared, that all powers not expressly delegated to Congress are reserved to the several states, to be by them exercised." This appears, to my mind, to be a summary of a bill of rights, which gentlemen are anxious to obtain. It removes a doubt which many have entertained respecting the matter, and gives assurance that, if any law made by the federal government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the constitution of this state, it will be an error, and adjudged by the courts of law to be void. It is consonant with the second article in the present Confederation, that each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not, by this Confederation, expressly delegated to the United States in Congress assembled. I have long considered the watchfulness of the people over the conduct of their rulers the strongest guard against the encroachments of power; and I hope the people of this country will always be thus watchful. Samuel Adams

With respect to the first of these considerations, I trust there is no man in his senses, but what will own, that the whole country hath largely felt the want of energy in the general government. While we were at war with Britain, common danger produced a common union; but, the cause being removed, the effect ceased also. Nay, I do not know but we may safely add, that that union, produced by uniform danger, was still inadequate to general and national purposes. This commonwealth, with a generous, disinterested regard to the good of the whole, appeared foremost in the day of danger. At the conclusion of the late war, two thirds of the Continental army were from Massachusetts; their provision and their clothing proceeded, also, in a great measure, from our extraordinary exertions. The people did this in the fullest confidence, that, when peace and tranquillity were restored, from the honor and justice of our sister states our supernumerary expenses would be abundantly repaid. But, alas! how much hath our expectation been blasted! The Congress, though willing, yet had no power to do us justice. The small district of Rhode Island put a negative upon the collected wisdom of the continent. This was done, not by those who are the patrons of their present infamous system of paper currency, but by that part of them who now call themselves honest men. We have made exertions to stop the importation of foreign luxuries. Our brethren in the neighboring states, from the view of local advantages, have taken occasion to distress us upon the same account. They have encouraged where we have prohibited; and by those iniquitous measures have made our virtue and public spirit an additional cause of our calamity. Nor have our calamities been local; they have reached to all parts of the United States, and have produced dissipation and indigence at home, and contempt in foreign countries. On the one hand, the haughty Spaniard has deprived us of the navigation of the River Mississippi; on the other, the British nation are, by extravagant duties, ruining our fishery. Our sailors are enslaved by the pirates of Algiers. Our credit is reduced to so low an ebb, that American faith is a proverbial expression for perfidy, as Punic faith was among the Romans. Thus have we suffered every species of infamy abroad, and poverty at home. Such, in fact, have been our calamities, as are enough to convince the most skeptical among us of the want of a general government, in which energy and vigor should be established, and at the same time, the rights and liberties of the people preserved.

A Constitution hath been presented to us, which was composed and planned by men, who, in the council and field, have, in the most conspicuous offices, served their country in the late war. It comes authenticated by a man who, without any pecuniary reward, commanded our army, and who retired to a private station with more pleasure than he left it. I do not say, Mr. President, that this proves the form of government to be perfect, or that it is an unanswerable argument that we should adopt it; but it is a reason why we should examine it with care and caution, and that we ought not rashly and precipitately to reject it.

It will be objected, "There are more powers granted than are necessary, and that it tends to destroy the local governments of the particular states, and that it will eventually end either in aristocracy or despotism." To answer the objection, two considerations should be taken into view — the situation of the continent when a Constitution was formed, and the impossibility of preserving a perfect sovereignty in the states, after necessary powers were ceded to a supreme council of the whole. As to the first, let us candidly examine the state of these republics from New Hampshire to Georgia, and see how far vigor and energy were required. During the session of the late Convention, Massachusetts was on the point of civil war. In Vermont and New Hampshire, a great disaffection to their several governments prevailed among the people. New York absolutely refused complying with the requisitions of Congress. In Virginia, armed men endeavored to stop the courts of justice. In South Carolina, creditors, by law, were obliged to receive barren and useless land for contracts made in silver and gold. I pass over the instance of Rhode Island: their conduct was notorious. In some states, laws were made directly against the treaty of peace; in others, statutes were enacted which clashed directly against any federal union — new lands sufficient to discharge a great part of the Continental debt intruded upon by needy adventurers — our frontier settlements exposed to the ravages of the Indians — while the several states were unable or unwilling to relieve their distress. Lay all those circumstances together, and you will find some apology for those gentlemen who framed this Constitution. I trust you may charitably assign other motives for their conduct, than a design to enslave their country, and to parcel out for themselves its honors and emoluments.

The second consideration deserves its weight. Can these local governments be sufficient to protect us from foreign enemies, or from disaffection at home? Thirteen states are formed already. The same number are probably to be formed from the lands not yet cultivated.
Of the former, yet smaller divisions may be made. The province of Maine hath desired a separation; in time, a separation may take place. Who knows but what the same may happen with respect to the old colony of Plymouth. Now, conceive the number of states increased, their boundaries lessened, their interests clashing; how easy a prey to a foreign power! how liable to war among themselves!

Let these arguments be weighed, and I dare say, sir, there is no man but what would conceive that a coercive power over the whole, searching through all parts of the system, is necessary to the preservation and happiness of the whole people.

But I readily grant all these reasons are not sufficient to surrender up the essential liberties of the people. But do we surrender them? This Constitution hath been compared, both by its defenders and opponents, to the British government. In my view of it, there is a great difference. ln Britain, the government is said to consist of three forms — monarchy, aristocracy, and democracy; but, in fact, is but a few removes from absolute despotism. In the crown is vested the power of adding at pleasure to the second branch; of nominating to all the places of honor and emolument; of purchasing, by its immense revenues, the suffrages of the House of Commons. The voice of the people is but the echo of the king; and their boasted privileges lie entirely at his mercy. In this proposed form, each branch of power is derived, either mediately or directly, from the people. The lower house are elected directly by those persons who are qualified to vote for the representatives of the state; and, at the expiration of two years, become private men, unless their past conduct entitles them to a future election. The Senate are elected by the legislatures of the different states, and represent their sovereignty.

These powers are a check on each other, and can never be made either dependent on one another, or independent of the people. The President is chosen by the electors, who are appointed by the people. The high courts of justice arise from the President and Senate; but yet the ministers of them can be removed only upon bad behavior. The independence of judges is one of the most favorable circumstances to public liberty; for when they become the slaves of a venal, corrupt court, and the hirelings of tyranny, all property is precarious, and personal security at an end; a man may be stripped of all his possessions, and murdered, without the forms of law. Thus it appears that all parts of this system arise ultimately from the people, and are still independent of each other. There are other restraints, which, though not directly named in this Constitution, yet are evidently discerned by every man of common observation. These are, the government of the several states, and the spirit of liberty in the people. Are we wronged or injured, our immediate representatives are those to whom we ought to apply. Their power and influence will still be great. But should any servants of the people, however eminent their stations, attempt to enslave them, from this spirit of liberty such opposition would arise as would bring them to the scaffold. But, admitting that there are dangers in accepting this general government; yet are there not greater hazards in rejecting it? Such is, Mr. President, the state of our affairs, that it is not in our power to carve for ourselves. To avoid the greatest and choose the least of these two evils, is all that we can do. What, then, will be the probable effects if this Constitution be rejected? Have we not reason to fear new commotions in this commonwealth? If they arise, can we be always certain that we shall be furnished with a citizen, who, though possessed of extensive influence and the greatest abilities, will make no other use of them than to quiet the tumult of the people, to prevent civil war, and to restore the usual course of law and justice? Are we not in danger from other states, when their interests or prejudices are opposite to ours? And in such scenes of hostile contention, will not some Sylla drench the land in blood, or some Cromwell or Caesar lay our liberties prostrate at his feet? Will not foreign nations attack us in our weak, divided condition, and once more render us provinces to some potentate of Europe? Or will those powers to whom we are indebted lie quiet? They certainly will not. They are now waiting for our decision; but when they once see that our union is broken, and that we are determined to neglect them, they will issue out letters of marque and reprisal, and entirely destroy our commerce.

If this system is broken up, will thirteen, or even nine states, ever agree to another? And will Providence smile on a people who despise the privileges put into their hands, and who neglect the plainest principles of justice and honesty? After all, I by no means pretend that there is complete perfection in this proposed Constitution. Like all other human productions, it hath its faults. Provision is made for an amendment, whenever, from practice, it is found oppressive. I would add, the proposals which his excellency hath condescended to lay before this honorable Convention, respecting future alterations, are real improvements for the better; and we have no reason to doubt but they will be equally attended to by other states, as they lead to common security and preservation.

Some of the gentlemen in the opposition have quoted ancient history, and applied it to the question now under debate. They have shown us the danger which arises from vesting magistrates with too much power. I wish they had gone on to tell the whole truth. They might have shown how nearly licentiousness and tyranny are allied; that they who will not be governed by reason must submit to force: that demagogues, in all free governments, have at first held out an idea of extreme liberty, and have seized on the rights of the people under the mask of patriotism. They might have shown us a republic in which wisdom, virtue, and order, were qualities for which a man was liable to banishment; and, on the other hand, boasting, sedition, and falsehood, the sure road to honor and promotion.

I am sorry that it hath been hinted by some gentlemen in this house, as if there were a combination of the rich, the learned, and those of liberal professions, to establish and support an arbitrary form of government. Far be it from me to retort so uncharitable and unchristian a suggestion. I doubt not but the gentlemen who are of different sentiments from myself, are actuated by the purest motives. Some of them I have the pleasure to be particularly acquainted with, and can safely pronounce them to be men of virtue and honor. They have, no doubt, a laudable concern for the liberties of their country; but I would beg them to remember that extreme jealousy and suspicion may be as fatal to freedom as security and negligence.

With respect to myself, I am conscious of no motive which guides me in this great and solemn question, but what I could justify to my own heart, both on the bed of death, and before the tribunal of omnipotence. I am a poor man; I have the feelings of a poor man. If there are honors and emoluments in this proposed Constitution, I shall, by my profession and circumstances in life, be forever excluded from them. It is my wish and prayer, that, in the solemn verdict we are very soon to pronounce, we may be directed to that measure which will be for the glory, freedom, and felicity of my country.

I shall trouble this house no further than by joining sincerely in the wish of the honorable gentleman from Tops-ham, that the people, in their day, may know the things which belong to their peace.  Rev. Mr. THACHER


Extracts from the New York Ratification Debates

One can find the entire New York Debates here: Ratification of the Constitution by the State of New York


This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits, by a certain rivalship, which will ever subsist between them. I am persuaded that a firm union is as necessary to perpetuate our liberties as it is to make us respectable; and experience will probably prove that the national government will be as natural a guardian of our freedom as the state legislature themselves. - Mr. HAMILTON


It must appear evident that there will be a constant jarring of claims and interests. Now, will the states, in this contest, stand any chance of success? If they will, there is less necessity for our amendment. But consider the superior advantages of the general government. Consider their extensive, exclusive revenues, the vast sums of money they can command, and the means they thereby possess of supporting a powerful standing force. The states, on the contrary, will not have the command of a shilling or a soldier. The two governments will be like two men contending for a certain property. The one has no interest but that which is the subject of the controversy, while the other has money enough to carry on the lawsuit for twenty years. By this clause unlimited powers in taxation are given. Another clause declares that Congress shall have power to make all laws necessary to carry the Constitution into effect. Nothing, therefore, is left to construction; but the powers are most express. How far the state legislatures will be able to command a revenue, every man, on viewing the subject, can determine. If he contemplates the ordinary operation of causes, he will be convinced that the powers of the confederacy will swallow up those of the members. I do not suppose that this effect will be brought about suddenly. As long as the people feel universally and strongly attached to the state governments, Congress will not be able to accomplish it. If they act prudently, their powers will operate and be increased by degrees. The tendency of taxation, though it be moderate, is to lessen the attachment of the citizens. If it becomes oppressive, it will certainly destroy their confidence. While the general taxes are sufficiently heavy, every attempt of the states to enhance them will be considered as a tyrannical act, and the people will lose their respect and affection for a government which cannot support itself without the most grievous impositions upon them. If the Constitution is accepted as it stands, I am convinced that in seven years as much will be said against the state governments as is now said in favor of the proposed system.
Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical. The investigation is difficult, because we have no examples to serve as guides. The world has never seen such a government over such a country. If we consult authorities in this matter, they will declare the impracticability of governing a free people on such an extensive plan. In a country where a portion of the people live more than twelve hundred miles from the centre, I think that one body cannot possibly legislate for the whole. Can the legislature frame a system of taxation that will operate with uniform advantages? Can they carry any system into execution? Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government. - Mr. SMITH


But the point on which gentlemen appear to dwell with most attention and concern, is the jurisdiction of the united and individual states, in taxation. They say a concurrent jurisdiction cannot exist, and that the two powers will clash, and one or the other must be overpowered. Their arguments are considerably plausible; but if we investigate this matter properly, we shall see that the dangers they apprehend are merely ideal. Their fears originate in a supposed corruption of Congress; for, if the state governments are valuable and necessary to the system, it cannot be imagined that the representatives of the people, while they have a single principle of honesty, will consent to abolish them. If I proceeded here to prove the improbability of corruption, I should only repeat arguments which the committee have already heard most clearly and copiously detailed. The fact is, that, in our present state of society, and under the operation of this Constitution, interest and integrity will be connected by the closest ties. Interest will form a check which nothing can overcome. On interest, sir, we rest our principal hopes of safety. Your state government has the unlimited power over the purse and the sword: why do you not fear that your rulers will raise armies, to oppress and enslave the citizens? Clearly, because you feel a confidence in the men you elect; and that confidence is founded on the conviction you have that tyranny is totally inconsistent with their interest. You will give up to your state legislatures every thing dear and valuable; but you will give no power to Congress, because it may be abused; you will give them no revenue, because the public treasures may be squandered. But do you not see here a capital check? Congress are to publish, from time to time, an account of their receipts and expenditures. These may be compared together; and if the former, year after year, exceed the latter, the corruption will be detected, and the people may use the constitutional mode of redress. The gentleman admits that corruption will not take place immediately: its operations can only be conducted by a long series and a steady system of measures. These measures will be easily defeated, even if the people are unapprized of them They will be defeated by that continual change of members, which naturally takes place in free governments, arising from the disaffection and inconstancy of the people. A changeable assembly will be entirely incapable of conducting a system of mischief; they will meet with obstacles and embarrassments on every side.  - Chancellor LIVINGSTON


When these are obtained, all our apprehensions of the extent of power are unjust and imaginary. What, then, is the structure of this Constitution? One branch of the legislature is to be elected by the people — by the same people who choose your state representatives. Its members are to hold their offices two years, and then return to their constituents. Here, sir, the people govern; here they act by their immediate representatives. You have also a Senate, constituted by your state legislatures, by men in whom you place the highest confidence, and forming another representative branch. Then, again, you have an executive magistrate, created by a form of election which merits universal admiration. In the form of this government, and in the mode of legislation, you find all the checks which the greatest politicians and the best writers have ever conceived. What more can reasonable men desire? Is there any one branch in which the whole legislative and executive powers are lodged? No. The legislative authority is lodged in three distinct branches, properly balanced; the executive is divided between two branches; and the judicial is still reserved for an independent body, who hold their office during good behavior. This organization is so complex, so skilfully contrived, that it is next to impossible that an impolitic or wicked measure should pass the scrutiny with success. Now, what do gentlemen mean by coming forward and declaiming against this government? Why do they say we ought to limit its power, to disable it, and to destroy its capacity of blessing the people? Has philosophy suggested, has experience taught, that such a government ought not to be trusted with every thing necessary for the good of society? Sir, when you have divided and nicely balanced the departments of government; when you have strongly connected the virtue of your rulers with their interest; when, in short, you have rendered your system as perfect as human forms can be, — you must place confidence; you must give power. - Mr. HAMILTON


I shall proceed now more particularly to the proposition before the committee. This clearly admits that the unlimited power of taxation, which I have been contending for, is proper. It declares that, after the states have refused to comply with the requisitions, the general government may enforce its demands. While the gentlemen's proposition and principle admit this, in its fullest latitude, the whole course of the states is against it. The mode they point out would involve many inconveniences against which they would wish to guard. Suppose the gentleman's scheme should be adopted; would not all the resources of the country be equally in the power of Congress? The states can have but one opportunity of refusal. After having passed through the empty ceremony of a requisition, the general government can enforce all its demands, without limitation or resistance. The states will either comply, or they will not. If they comply, they are bound to collect the whole of the tax from the citizens. The people must pay it. What, then, will be the disadvantage of its being levied and collected by Congress, in the first instance? It has been proved, as far as probabilities can go, that the federal government will, in general, take the laws of the several states as its rule, and pursue those measures to which the people are most accustomed. But if the states do not comply, what is the consequence? If the power of a compulsion be a misfortune to the state, they must now suffer it without opposition or complaint. I shall show, too, that they must feel it in an aggravated degree. It may frequently happen that, though the states formally comply with the requisitions, the avails will not be fully realized by Congress: the states may be dilatory in the collection and payment, and may form excuses for not paying the whole. There may also be partial compliances, which will subject the Union to inconveniences. Congress, therefore, in laying the tax, will calculate for these losses and inconveniences. They will make allowances for the delays and delinquencies of the states, and apportion their burdens accordingly. They will be induced to demand more than their actual wants. - Mr. HAMILTON


He considered it as an object, of all others the most important, to have it fixed on its true principle; yet he was convinced that it was impracticable to have such a representation in a consolidated government. However, said he, we may approach a great way towards perfection by increasing the representation and limiting the powers of Congress. He considered that the great interests and liberties of the people could only be secured by the state governments. - Mr. SMITH


Will any man, who entertains a wish for the safety of his country, trust the sword and the purse with a single assembly organized on principles so defective — so rotten? Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces, would be to establish a despotism; the definition of which is, a government in which all power is concentred in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people. These considerations show clearly that a government totally different must be instituted. They had weight in the Convention who formed the new system. It was seen that the necessary powers were too great to be trusted to a single body; they therefore formed two branches, and divided the powers, that each might be a check upon the other. This was the result of their wisdom; and I presume that every reasonable man will agree to it. The more this subject is explained, the more clear and convincing it will appear to every member of this body. The fundamental principle of the old Confederation is defective; we must totally eradicate and discard this principle before we can expect an efficient government.  - Mr. HAMILTON



The honorable member had assured the committee that the states would be checks upon the general government, and had pledged himself to point out and demonstrate the operation of these checks. For his own part, he could see no possibility of checking a government of independent powers, which extended to all objects and resources without limitation. What he lamented was, that no constitutional checks were provided — such checks as would not leave the exercise of government to the operation of causes which, in their nature, are variable and uncertain. - MELANCTON SMITH



Congress have the power of making war and peace, of levying money and raising men; they may involve us in a war at their pleasure; they may negotiate loans to any extent, and make unlimited demands upon the states. Here the gentleman comes forward, and says that the states are to carry these powers into execution; and they have the power of non-compliance. But is not every state bound to comply? What power have they to control Congress in the exercise of those rights which they have pledged themselves to support? It is true they have broken, in numerous instances, the compact by which they were obligated; and they may do it again; but will the gentleman draw an argument of security from the facility of violating their faith? Suppose there should be a majority of creditor states, under the present government; might they not combine, and compel us to observe the covenant by which we had bound ourselves? - Chancellor LIVINGSTON



The states, having no constitutional control, would soon be found unnecessary and useless, and would be gradually extinguished. When this took place, the people would lose their liberties, and be reduced from the condition of citizens to that of subjects. It had been remarked, that there were more than two thousand state representatives throughout the Union, and that the number of civil and military officers on the state establishments would far exceed those of the United States; and these circumstances, it has been said, would create such an attachment and dependence on the state governments, as would give them a superiority over the general government. But, said he, were the states arrayed in all the powers of sovereignty? Could they maintain armies? Had they the unlimited power of taxation? There was no comparison, he said, between the powers of the two governments. The circumstances the gentleman had enumerated, which seemed to be in favor of the states, only proved that the/people would be under some advantages to discern the encroachments of Congress, and to take the alarm; but what would this signify? The gentleman did not mean that his principles should encourage rebellion; what other resource had they? None, but to wait patiently till the long terms of their senators were expired, and then elect other men. All the boasted advantages enjoyed by the states were finally reduced to this. The gentleman had spoken of an enmity which would subsist between the general and state governments: what, then, would be the situation of both? His wish, he said, was to prevent any enmity, by giving the states a constitutional and peaceable mode of checking maladministration, by recalling their senators, and not driving them into hostilities, in order to obtain redress. - Mr. LANSING



It has been remarked, that there is an inconsistency in our admitting that the equal vote in the Senate was given to secure the rights of the states, and at the same time holding up the idea that their interests should be sacrificed to those of the Union. But the committee certainly perceive the distinction between the rights of a state and its interests. The rights of a state are defined by the Constitution, and cannot be invaded without a violation of it; but the interests of a state have no connection with the Constitution, and may be, in a thousand instances, constitutionally sacrificed. A uniform tax is perfectly constitutional; and yet it may operate oppressively upon certain members of the Union. The gentlemen are afraid that the state governments will be abolished. But, sir, their existence does not depend upon the laws of the United States. Congress can no more abolish the state governments, than they can dissolve the Union. The whole Constitution is repugnant to it, and yet the gentlemen would introduce an additional useless provision against it. It is proper that the influence of the states should prevail to a certain extent. But shall the individual states be the judges how far? Shall an unlimited power be left them to determine in their own favor? The gentlemen go into the extreme: instead of a wise government, they would form a fantastical Utopia. But, sir, while they give it a plausible, popular shape, they would render it impracticable. Much has been said about factions. As far as my observation has extended, factions in Congress have arisen from attachment to state prejudices. We are attempting, by this Constitution, to abolish factions, and to unite all parties for the general welfare. That a man should have the power, in private life, of recalling his agent, is proper; because, in the business in which he is engaged, he has no other object but to gain the approbation of his principal. Is this the case with the senator? Is he simply the agent of the state? No. He is an agent for the Union, and he is bound to perform services necessary to the good of the whole, though his state should condemn them. - Mr. HAMILTON



Sir, has any country which has suffered distresses like ours exhibited, within a few years, more striking marks of improvement and prosperity? How its population has grown! How its agriculture, commerce, and manufactures have been extended and improved! How many forests have been cut down! How many wastes have been cleared and cultivated! How many additions have been made to the extent and beauty of our towns and cities! I think our advancement has been rapid. In a few years, it is to be hoped that we shall be relieved from our embarrassments, and, unless new calamities come upon us, shall be flourishing and happy. Some difficulties will ever occur in the collection of taxes by any mode whatever. Some states will pay more, some less. If New York lays a tax, will not one county or district furnish more, another less, than its proportion? The same will happen to the United States as happens in New York, and in every other country. Let them impose a duty equal and uniform, those districts where there is plenty of money will pay punctually. Those in which money is scarce will be in some measure delinquent. The idea that Congress ought to have unlimited powers is entirely novel. I never heard it till the meeting of this Convention. The general government once called on the states to invest them with the command of funds adequate to the exigencies of the Union; but they did not ask to command all the resources of the states. They did not wish to have a control over all the property of the people. If we now give them this control, we may as well give up the state governments with it. I have no notion of setting the two powers at variance; nor would I give a farthing for a government which could not command a farthing. On the whole, it appears to me probable, that, unless some certain specific source of revenue is reserved to the states, their governments, with their independency, will be totally annihilated.  - Mr. SMITH



Let any one compare the expense of supporting the civil list in a state with the expense of providing for the defence of the Union. The difference is almost beyond calculation. The experience of Great Britain will throw some light on this subject. In that kingdom, the ordinary expenses of peace to those of war are as one to fourteen. But there they have a monarch, with his splendid court, and an enormous civil establishment, with which we have nothing in this country to compare. If, in Great Britain, the expenses of war and peace are so disproportioned, how wide will be their disparity in the United States! How infinitely wider between the general government and each individual state! Now, sir, where ought the great resources to be lodged? Every rational man will give an immediate answer. To what extent shall these resources be possessed? Reason says, As far as possible exigencies can require; that is, without limitation. A constitution cannot set bounds to a nation's wants; it ought not, therefore, to set bounds to its resources. Unexpected invasions, long and ruinous wars, may demand all the possible abilities of the country. Shall not your government have power to call these abilities into action? The contingencies of society are not reducible to calculations. They cannot be fixed or bounded, even in imagination. Will you limit the means of your defence, when you cannot ascertain the force or extent of the invasion? Even in ordinary wars, a government is frequently obliged to call for supplies, to the temporary oppression of the people.
Sir, if we adopt the idea of exclusive revenues, we shall be obliged to fix some distinguished line, which neither government shall overpass. The inconvenience of this measure must appear evident on the slightest examination. The resources appropriated to one may diminish or fail, while those of the other may increase beyond the wants of government. One may be destitute of revenues, while the other shall possess an unnecessary abundance; and the Constitution will be an eternal barrier to a mutual intercourse and relief. In this case, will the individual state stand on so good a ground as if the objects of taxation were left free and open to the embrace of both the governments? Possibly, in the advancement of commerce, the imposts may increase to such a degree as to render direct taxes unnecessary. These resources, then, as the Constitution stands, may be occasionally relinquished to the states; but on the gentleman's idea of prescribing exclusive limits, and precluding all reciprocal communication, this would be entirely improper. The laws of the states must not touch the appropriated resources of the United States, whatever may be their wants. Would it not be of much more advantage to the states to have a concurrent jurisdiction, extending to all the sources of revenue, than to be confined to such a small resource, as, on calculation of the objects of the two governments, should appear to be their due proportion? Certainly you cannot hesitate on this question. The gentleman's plan would have a further ill effect; it would tend to dissolve the connection and correspondence of the two governments, to estrange them from each other, and to destroy that mutual dependence which forms the essence of union.
Sir, a number of arguments have been advanced by an honorable member from New York, which to every unclouded mind must carry conviction. He has stated that, in certain emergencies, it may be necessary to borrow; and that it is impossible to borrow, unless you have funds to pledge for the payment of your debts. Limiting the powers of government to certain resources, is rendering the fund precarious; and obliging the government to ask, instead of empowering them to command, is to destroy all confidence and credit. If the power of taxing is restricted, the consequence is, that, on the breaking out of a war, you must divert the funds, appropriated to the payment of debts, to answer immediate exigencies. Thus you violate your engagements, at the very time you increase the burden of them. Besides, sound policy condemns the practice of accumulating debts. A government, to act with energy, should have the possession of all its revenues to answer present purposes. The principle for which I contend is recognized in all its extent by our old constitution. Congress is authorized to raise troops, to call for supplies without limitation, and to borrow money to any amount. It is true they must use the form of recommendations and requisitions; but the states are bound by the solemn ties of honor, of justice, of religion, to comply without reserve.
Mr. Chairman, it has been advanced as a principle, that no government but a despotism can exist in a very extensive country. This is a melancholy consideration indeed. If it were founded on truth, we ought to dismiss the idea of a republican government, even for the state of New York. This idea has been taken from a celebrated writer, who, by being misunderstood, has been the occasion of frequent fallacies in our reasoning on political subjects. But the position has been misapprehended; and its application is entirely false and unwarrantable: it relates only to democracies, where the whole body of the people meet to transact business, and where representation is unknown. Such were a number of ancient and some modern independent cities. Men who read without attention have taken these maxims respecting the extent of country, and, contrary to their meaning, have applied them to republics in general. This application is wrong in respect to all representative governments. but especially in relation to a confederacy of states, in which the supreme legislature has only general powers, and the civil and domestic concerns of the people are regulated by the laws of the several slates. This distinction being kept in view, all the difficulty will vanish, and we may easily conceive that the people of a large country may be represented as truly as those of a small one. An assembly constituted for general purposes may be fully competent to every federal regulation, without being too numerous for deliberate conduct. If the state governments Were to be abolished, the question would wear a different face; but this idea is inadmissible. They are absolutely necessary to the system. Their existence must form a leading principle in the most perfect constitution we could form.
I insist that it never can be the interest or desire of the national legislature to destroy the state governments. It can derive no advantage from such an event; but, on the contrary, would lose an indispensable support, a necessary aid in executing the laws, and conveying the influence of government to the doors of the people. The Union is dependent on the will of the state governments for its chief magistrate, and for its Senate. The blow aimed at the members must give a fatal wound to the head; and the destruction of the states must be at once a political suicide. Can the national government be guilty of this madness? What inducements, what temptations, can they have? Will they attach new honors to their station? Will they increase the national strength? Will they multiply the national resources? Will they make themselves more respectable in the view of foreign nations, or of their fellow-citizens, by robbing the states of their constitutional privileges? But imagine, for a moment, that a political frenzy should seize the government; suppose they should make the attempt. Certainly, sir, it would be forever impracticable. This has been sufficiently demonstrated by reason and experience. It has been proved that the members of republics have been, and ever will be, stronger than the head. Let us attend to one general historical example: in the ancient feudal governments of Europe, there were, in the first place, a monarch; subordinate to him, a body of nobles; and subject to these, the vassals, or the whole body of the people. The authority of the kings was limited, and that of the barons considerably independent. A great part of the early wars in Europe were contests between the king and his nobility. In these contests, the latter possessed many advantages derived from their influence, and the immediate command they had over the people; and they generally prevailed. The history of the feudal wars exhibits little more than a series of successful encroachments on the prerogatives of monarchy. Here, sir, is one great proof of the superiority which the members in limited governments possess over their head. As long as the barons enjoyed the confidence and attachment of the people, they had the strength of the country on their side, and were irresistible. I may be told that, in some instances, the barons were overcome; but how did this happen? Sir, they took advantage of the depression of the royal authority, and the establishment of their own power, to oppress and tyrannize over the vassals. As commerce enlarged, and as wealth and civilization increased, the people began to feel their own weight and consequence: they grew tired of their oppressions, united their strength with that of the prince, and threw off the yoke of aristocracy. These very instances prove what I contend for. They prove that in whatever direction the popular weight leans, the current of power will flow; wherever the popular attachments lie, there will rest the political superiority. Sir, can it be supposed that the state will become the oppressors of the people? Will they forfeit their affections? Will they combine to destroy the liberties and happiness of their fellow-citizens, for the sole purpose of involving themselves in ruin? God forbid! The idea, sir, is shocking. It outrages every feeling of humanity, and every dictate of common sense. - Mr. HAMILTON



The gentleman says that the operation of the taxes will exclude the states on this ground — that the demands of the community are always equal to its resources; that Congress will find a use for all the money the people can pay. This observation, if designed as a general rule, is, in every view, unjust. Does he suppose the general government will want all the money the people can furnish, and also that the state governments will want all the money the people can furnish? What contradiction is this! But if this maxim be true, how does the wealth of the country ever increase? How are the people enabled to accumulate fortunes? Do the burdens regularly augment as its inhabitants grow prosperous and happy? But if, indeed, all the resources are required for the protection of the people, it follows that the protecting power should have access to them. The only difficulty lies in the want of resources. If they are adequate, the operation will be easy; if they are not, taxation must be restrained. Will this be the fate of the state taxes alone? Certainly not. The people will say, No. What will be the conduct of the national rulers? The consideration will not be, that our imposing the tax will destroy the states, for this cannot be effected; but that it will distress the people, whom we represent, and whose protectors we are. It is unjust to suppose they will be altogether destitute of virtue and prudence: it is unfair to presume that the representatives of the people will be disposed to tyrannize in one government more than in another. If we are convinced that the national legislature will pursue a system of measures unfavorable to the interests of the people, we ought to have no general government at all. But if we unite, it will be for the accomplishment of great purposes: these demand great resources and great powers. There are certain extensive and uniform objects of revenue which the United States will improve, and to which, if possible, they will confine themselves. Those objects which are more limited, and in respect to which the circumstances of the states differ, will be reserved for their use: a great variety of articles will be in this last class of objects, to which only the state laws will properly apply. To ascertain this division of objects is the proper business of legislation: it would be absurd to fix it in the Constitution, both because it would be too extensive and intricate, and because alteration of circumstances must render a change of the division indispensable. Constitutions should consist only of general provisions: the reason is, that they must necessarily be permanent, and that they cannot calculate for the possible change of things. I know that the states must have their resources; but I contend that it would be improper to point them out particularly in the Constitution.
Sir, it has been said that a poll tax is a tyrannical tax; but the legislature of this state can lay it, whenever they please. Does, then, our Constitution authorize tyranny? I am as much opposed to capitation as any man. Yet who can deny that there may exist certain circumstances which will render this tax necessary? In the course of a war, it may be necessary to lay hold of every resource; and for a certain period, the people may submit to it. But on removal of the danger, or the return of peace, the general sense of the community would abolish it. The United Netherlands were obliged, on an emergency, to give up one twentieth of their property to the government. It has been said that it will be impossible to exercise this power of taxation: if it cannot be exercised, why be alarmed? But the gentlemen say that the difficulty of executing it with moderation will necessarily drive the government into despotic measures. Here, again, they are in the old track of jealousy and conjecture. Whenever the people feel the hand of despotism, they will not regard forms and parchments. But the gentlemen's premises are as false as their conclusion. No one reason can be offered why the exercise of the power should be impracticable. No one difficulty can be pointed out which will not apply to our state governments. Congress will have every means of knowledge that any legislature can have. From general observation, and from the revenue systems of the several states, they will derive information as to the most eligible modes of taxation. If a land tax is the object, cannot Congress procure as perfect a valuation as any other assembly? Can they not have all the necessary officers for assessment and collections? Where is the difficulty? Where is the evil? They never can oppress a particular state by an unequal imposition; because the Constitution has provided a fixed ratio, a uniform rule, by which this must be regulated. The system will be founded upon the most easy and equal principles — to draw as much as possible from direct taxation; to lay the principal burdens on the wealthy, &c. Even ambitious and unprincipled men will form their system so as to draw forth the resources of the country in the most favorable and gentle methods, because such will be ever the most productive. They never can hope for success by adopting those arbitrary modes which have been used in some of the states. - Mr. HAMILTON



This clause, Mr. Chairman, is, by every one, considered as one of the most important in the Constitution. The subject has been treated in a very diffusive manner. Among all the ingenious remarks that have been made, some are little more than repetitions; others are not very applicable or interesting. I shall beg leave to pass a few strictures on the paragraph; and, in my reply, shall confine myself to the arguments which have been advanced. The committee have been informed that it embraces a great variety of objects, and that it gives the general government a power to lay all kinds of taxes; that it confers a right of laying excises on all articles of American manufacture, of exacting an impost, in which the state governments cannot interfere, and of laying direct taxes without restriction. These powers reach every possible source of revenue. They will involve a variety of litigations, which can come only under the cognizance of the judiciary of the United States. Hence it must appear that these powers will affect, in an unlimited manner, the property of the citizens; that they will subject them, in a great degree, to the laws of the Union, and give an extensive jurisdiction to the federal courts. The objects of the amendment are, to prevent excises from being laid on the manufactures of the United States, and to provide that direct taxes shall not be imposed till requisitions have been made and proved fruitless. - Mr. LANSING



In the course of this debate, Mr. SMITH made the following remarks, in answer to Mr. Hamilton; that, though the gentleman's maxim was true, that the means should be adequate to the end, yet it did not, by any means, apply to a complex system like ours, in which all the objects of government were not to be answered by the national head, and which, therefore, ought not to possess all the means. In another view, he said, the rule would not apply. It was not true that the power which was charged with the common defence should have all the revenues. In the government of Great Britain, the power to whom the common defence was committed did not possess the means of providing for it. The king had the whole power of war: but the Parliament only could furnish the money for conducting it. Still the government, taken all together, possessed all the powers and all the means. He thought it ought to be on such a footing here. The general government was one part of the system, the state governments another. Now, it was true, he said, that the system, taking all its parts together, ought to have unlimited powers. It was not the design of the amendment to prevent this: it was only to divide the powers between the parts, in proportion to their several objects.
TUESDAY, July 1, 1788. — Mr. SMITH observed, that he supposed the states would have a right to lay taxes, if there was no power in the general government to control them. He acknowledged that the counties in this state had a right to collect taxes; but it was only a legislative, not a constitutional right. It was dependent and controllable. This example, he said, was a true one; and the comparison the gentleman had made was just; but it certainly operated against him. Whether, then, the general government would have a right to control the states in taxation, was a question which depended upon the construction of the Constitution. Men eminent in law had given different opinions on this point. The difference of opinion furnished, to his mind, a reason why the matter should be constitutionally explained. No such important point should be left to doubt and construction. The clause should be so formed as to render the business of legislation as simple and plain as possible. It was not to be expected that the members of the federal legislature would generally be versed in those subtilties which distinguish the profession of the law. They would not be disposed to make nice distinctions with respect to jurisdiction. He said that, from general reasoning, it must be inferred that, if the objects of the general government were without limitation, there could be no bounds set to their powers; that they had a right to seek those objects by all necessary laws, and by controlling every subordinate power. The means should be adequate to the end: the less should give way to the greater. General principles, therefore. clearly led to the conclusion, that the general government must have the most complete control over every power which could create the least obstacle to its operations.
Mr. Smith then went into an examination of the particular provisions of the Constitution, and compared them together, to prove that his remarks were not conclusions from general principles alone, but warranted by the language of the Constitution. He conceived, therefore, that the national government would have powers, on this plan, not only to lay all species of taxes, but to control and set aside every thing which should impede the collection of them. They would have power to abrogate the laws of the states, and to prevent the operation of their taxes; and all courts, before whom any disputes on these points should come, whether federal or not, would be bound by oath to give judgment according to the laws of the Union. An honorable gentleman from New York, he said, had dwelt with great attention on the idea that the state governments were necessary and useful to the general system, and that this would secure their existence. Granting that they would be very convenient in the system, yet, if the gentleman's position were true, that the two governments would be rivals, we had no need to go any further than the common feelings and passions of human nature, to prove that they must be hostile, and that one or the other must be finally subverted. If they were mutually necessary to each other, how could they be rivals? For, in this case, lessening the power of the states would be only diminishing the advantages of the general government. Another source, from which the gentleman would derive security to the states, was the superior number of the state representatives. Mr. Smith apprehended, however, that this very circumstance would be an argument for abolishing them The people would be very apt to compare their small importance and powers with the great expense of their support He then went into an examination of another source of security which the gentleman had pointed out, — that is, the great number of officers dependent on the states, — and compared them with those of the United States, and concluded with observing, that he (Mr. Smith) was one who had opposed the impost: he was also opposed to the Constitution in its present form. He said, he had opposed the impost, because it gave too much power to a single body, organized as the old Congress was; and he objected to this Constitution, because it gave too much power to the general government, however it might be organized. In both, he said, he stood on the same ground, and his conduct had been uniform and consistent.


The Hon. Mr. JAY

The Hon. Mr. JAY rose, and said he would confine himself to a few remarks, as the question had been pretty fully debated. He began with a description of the general characteristics of a government proper for the United States. It had, he said, been justly laid down, that a government which was to accomplish national purposes should command the national resources. Here a question had been raised. Would it be proper that the state governments should limit the powers of the general government, relative to its supplies? Would it be right or politic that the sovereign power of a nation should depend for support on the mere will of the several members of that nation? that the interest of a part should take place of that of the whole, or that the partial views of one of the members should interfere with and defeat the views of all? He said that, after the most mature reflection, he could see no possible impropriety in the general government having access to all the resources of the country. With respect to direct taxes, it appeared to him that the proposed amendment would involve great difficulties. Suppose a state should refuse to comply; would not the same motives, the same reasons, which produced the non-compliance, induce such state to resist the imposing and collecting of the tax? Would not a number of states, in similar circumstances, be. apt to unite to give their resistance weight? They could not all be forced. These ideas of the impracticability and the danger of the measure, he said, had been already fully illustrated, and they had made a deep impression on his mind. He apprehended that ambitious men might be found, in such emergencies, ready to take advantage of turbulent times, and put themselves at the head of such an association. After dwelling some time on this point, he proceeded to take notice of the objection relative to the want of that particular information in members of Congress, which, it had been said, would alone render them capable of imposing taxes with prudence and justice. The objection had some weight; but it ought to be considered that direct taxes were of two kinds, general and specific. With respect to the latter, the objection could not apply. The national government would, without doubt, usually embrace those objects which were uniform throughout the states; such as all specific articles of luxury. No particular minute knowledge could be necessary for this. For example, what difficulty or partiality would there be in the operation of a tax of twenty shillings on all coaches? The objection, then, could only apply to the laying of general taxes upon all property. But the difficulty on this score, he said, might be easily remedied. The legislatures of the several states would furnish their delegates with the systems of revenue, and give them the most particular information with regard to the modes of taxation most agreeable to the people. From the comparison of these, Congress would be able to form a general system, as perfect as the nature of things would admit. He appealed to the good sense and candor of the gentlemen, if this would not, in all probability, take place. After some considerations on the subject of concurrent jurisdiction, he said, he was convinced that it was sufficiently secured and established in the Constitution. But as gentlemen were of a different opinion on this point, it would be very easy, he said, to insert in the adoption of the system an explanation of this clause. Mr. Jay concluded by suggesting a difficulty on the subject of excise, which has not been attended to. He asked by what rule we should know an article of American from one of foreign manufacture: how could American nails, American porter, and hundreds of other articles, be distinguished from those of foreign production? He thought the proposed measure would create embarrassments, and the various abuses that would follow might be easily conceived.



I shall now confine myself to a few cursory and general observations on the reasonings of our opponents. I do not think it my duty to attempt to reconcile the gentlemen with each other. They advance opposite principles, and they argue differently. As they do not appear to have any fixed maxims in their politics, it is not to be wondered at that they talk at random, and run into inconsistencies. The gentleman from Duchess went into a defence of the state governments: he painted their good qualities in very warm colors; described their stability, their wisdom, their justice, their affection for the people. This was undoubtedly proper; for it was necessary to his argument. On the contrary, another gentleman took up the matter in a different point of view. He said the government of New York, which had been acknowledged one of the best, was quite imperfect. But this was all right, for it answered his purpose. A gentleman from New York had remarked a great resemblance between the government of this state and the new Constitution. To condemn the former, therefore, was giving a death-blow at the proposed system. But, sir, though we may pardon the gentlemen for differing from each other, yet it is difficult to excuse their differing from themselves. As these inconsistencies are too delicate to dwell on, I shall mention but a few. Their amendment declares that Congress shall lay direct taxes, and the whole drift of their argument is against it. In their reasoning, direct taxes are odious and useless things; in their amendment, they are necessary and proper. Thus their arguments and their motion are at variance. But this is not the only contradiction. The gentlemen say that Congress will be avaricious, and will want every farthing of the people's property. One from Washington tells you that taxation will shut out the light of heaven, and will pick your pockets. With these melancholy ideas no wonder he mourns for the fair damsel of American liberty, harassed with oppressive laws, shut up in a dismal dungeon, robbed of the light of heaven, and, by a beautiful anti-climax, robbed of the money in her pocket. Yet, says the gentleman, though Congress will do all this. they cannot do it. You are told that the collection of the tax is impracticable. Is, then, this great mischief to arise from an impracticable thing? It is the reasoning among all reasoners, that from nothing nothing comes; and yet this nothing is to destroy the state governments, and swallow up the state revenue: the tax which cannot realize a farthing is to rob the citizens of all their property. This is fine reasoning. To what shall I compare it? Shall I liken it to children in the market-place, or shall I liken it to children making bubbles with a pipe? Shall I not rather compare it to two boys upon a balanced board? One goes up, the other down; and so they go up and down, down and up, till the sport is over, and the board is left exactly on the balance in which they found it. But let us see if we cannot, from all this rubbish, pick out something which may look like reasoning. I confess I am embarrassed by their mode of arguing. They tell us that the state governments will be destroyed, because they will have no powers left them. This is new. Is the power over property nothing? Is the power over life and death no power? Let me ask what powers this Constitution would take from the states. Have the state governments the power of war and peace, of raising troops, and making treaties? The power of regulating commerce we possess; but the gentlemen admit that we improperly possess it. What, then, is taken away? Have not the states the right of raising money, and regulating the militia? And yet these objects could never have employed your legislatures four or five months in the year. What, then, have they been about? — making laws to regulate the height of fences and the repairing of roads? If this be true, take the power out of their hands. They have been unworthy servants; they have not deserved your confidence. Admit that the power of raising money should be taken from them; does it follow that the people will lose all confidence in their representatives? There are but two objects for which money must be raised — the support of the general government and those of the states; and they have an equal right to levy and collect their taxes. But if, as the amendment proposes, they should be obliged to grant all that Congress should call for, — if they are to be compelled to comply with the requisitions without limitation, — they would be, on the gentleman's principles, in a pitiable situation indeed! The mode alone would be in their discretion. Is this the mighty matter about which we differ? Contend about modes! I am sorry to say, sir, that a rigid adherence to modes, in this state, has been the cause of great injustice to individuals, and has hurt the confidence of the people. It has led this state, on one occasion, to raise the expectations of public creditors, and to sink them again, by an unwarrantable breach of faith. Sir, if the power of regulating the militia, of raising money, of making and executing all the civil and criminal laws, — laws which affect the life, liberty, and property of individuals, — can insure or deserve the confidence and respect of the people, I think the gentleman's argument falls to the ground. - Chancellor LIVINGSTON



The gentleman who first opened this debate did (with an emphasis which I believe convinced every one present of the propriety of the advice) urge the necessity of proceeding, in our deliberations on this important subject, coolly and dispassionately. With how much candor this advice was given, appears from the subsequent parts of a long speech, and from several subsequent speeches almost totally addressed to our fears. The people of New Jersey and Connecticut are so exceedingly exasperated against us, that, totally regardless of their own preservation, they will take the two rivers of Connecticut and Delaware by their extremities, and, by dragging them over our country, will, by a sweeping deluge, wash us all into the Hudson, leaving neither house nor inhabitant behind them. But if this event should not happen, doubtless the Vermontese, with the British and tories our natural enemies, would, by bringing down upon us the great Lake Ontario, sweep hills and mountains, houses and inhabitants, in one deluge, into the Atlantic. These, indeed, would be terrible calamities; but terrible as they are, they are not to be compared with the horrors and desolation of tyranny. The arbitrary courts of Philip in the Netherlands, in which life and property were daily confiscated without a jury, occasioned as much misery and a more rapid depopulation of the province, before the people took up arms in their own defence, than all the armies of that haughty monarch were able to effect afterwards; and it is doubtful, in my mind, whether governments, by abusing their powers, have not occasioned as much misery and distress, and nearly as great devastations of the human species, as all the wars which have happened since Milton's battle of the angels to the present day. The end or design of government is, or ought to be, the safety, peace, and welfare of the governed. Unwise, therefore, and absurd in the highest degree, would be the conduct of that people, who, in forming a government, should give to their rulers power to destroy them and their property, and thereby defeat the very purpose of their institutions; or, in other words, should give unlimited power to their rulers, and not retain in their own hands the means of their own preservation. The first governments in the world were parental, the powers of which were restrained by the laws of nature; and doubtless the early succeeding governments were formed on the same plan, which, we may suppose, answered tolerably well in the first ages of the world, while the moral sense was strong, and the laws of nature well understood, there being then no lawyers to explain them away. But in after times, when kings became great, and courts crowded, it was discovered that governments should have a right to tyrannize, and a power to oppress; and at the present day, when the juris periti are become so skilful in their profession, and quibbling is reduced to a science, it is become extremely difficult to form a constitution which will secure liberty and happiness to the people, or laws under which property is safe. Hence, in modern times, the design of the people, in forming an original constitution of government, is not so much to give powers to their rulers, as to guard against the abuse of them; but, in a federal one, it is different.
Sir, I introduce these observations to combat certain principles which have been daily and confidently advanced by the favorers of the present Constitution, and which appear to me totally indefensible. The first and grand leading, or rather misleading, principle in this debate, and on which the advocates for this system of unrestricted powers must chiefly depend for its support, is that, in forming a constitution, whatever powers are not expressly granted or given the government, are reserved to the people, or that rulers cannot exercise any powers but those expressly given to them by the Constitution. Let me ask the gentlemen who advanced this principle, whether the commission of a Roman dictator, which was in these few words — to take care that the state received no harm — does not come up fully to their ideas of an energetic government; or whether an invitation from the people to one or more to come and rule over them, would not clothe the rulers with sufficient powers. If so, the principle they advance is a false one. Besides, the absurdity of this principle will evidently appear, when we consider the great variety of objects to which the powers of the government must necessarily extend, and that an express enumeration of them all would probably fill as many volumes as Pool's Synopsis of the Critics. But we may reason with sufficient certainty on the subject, from the sense of all the public bodies in the United States, who had occasion to form new constitutions. They have uniformly acted upon a direct and contrary principle, not only in forming the state constitutions and the old Confederation, but also in forming this very Constitution, for we do not find in every state constitution express resolutions made in favor of the people; and it is clear that the late Convention at Philadelphia, whatever might have been the sentiments of some of its members, did not adopt the principle, for they have made certain reservations and restrictions, which, upon that principle, would have been totally useless and unnecessary; and can it be supposed that that wise body, whose only apology for the great ambiguity of many parts of that performance, and the total omission of some things which many esteem essential to the security of liberty, was a great desire of brevity, should so far sacrifice that great and important object, as to insert a number of provisions which they esteemed totally useless? Why is it said that the privilege of the writ of habeas corpus shall not be suspended, unless, in cases of rebellion or invasion, the public safety may require it? What clause in the Constitution, except this very clause itself, gives the general government a power to deprive us of that great privilege, so sacredly secured to us by our state constitutions? Why is it provided that no bill of attainder shall be passed, or that no title of nobility shall be granted? Are there any clauses in the Constitution extending the powers of the general government to these objects? Some gentlemen say that these, though not necessary, were inserted for greater caution. I could have wished, sir, that a greater caution had been used to secure to us the freedom of election, a sufficient and responsible representation, the freedom of the press, and the trial by jury both in civil and criminal cases. - Mr. TREDWELL



This brings me to the third and last weighty matter mentioned in the text — to wit, faith. The word faith may, with great propriety, be applied to the articles of our political creed, which, it is absolutely necessary, should be kept pure and uncorrupted, if we mean to preserve the liberties of our country and the inestimable blessings of a free government. And, sir, I cannot but be seriously alarmed on this head, as has frequently been the case during the present discussion, — gentlemen of the first rank and abilities openly opposing some of the most essential principles of freedom, and endeavoring, by the most ingenious sophistry, and the still more powerful weapons of ridicule, to shake or corrupt oar faith therein. Have we not been told that, if government is but properly organized, and the powers were suitably distributed among the several members, it is unnecessary to provide any other security against the abuse of its power? that power thus distributed needs no restriction? Is this a whig principle? Does not every constitution on the continent contradict this position? Why are we told that all restrictions of power are found to be inconvenient? that we ought to put unlimited confidence in our rulers. that it is not our duty to be jealous of men in power. Have we not had an idea thrown out of establishing an aristocracy in our own country, — a government than which none is more dreadful and oppressive?
What the design of the preacher on this occasion is, I will not attempt to determine; far be it from me to judge men's hearts: but thus much I can say, from the best authority, they are deceitful above all things, and desperately wicked. But whatever be the design of the preachers, the tendency of their doctrines is clear; they tend to corrupt our political faith, to take us off our guard, and lull to sleep that jealousy which, we are told by all writers, — and it is proved by all experience, — is essentially necessary for the preservation of freedom. But notwithstanding the strongest assertions that there are no wolves in our country, if we see their footsteps in every public path, we should be very credulous and unwise to trust our flocks abroad, and to believe that those who advised us to do it were very anxious for their preservation.
In this Constitution, sir, we have departed widely from the principles and political faith of '76, when the spirit of liberty ran high, and danger put a curb on ambition. Here we find no security for the rights of individuals, no security for the existence of our state governments; here is no bill of rights, no proper restriction of power; our lives, our property, and our consciences, are left wholly at the mercy of the legislature, and the powers of the judiciary may be extended to any degree short of almighty. Sir, in this Constitution we have not only neglected, — we have done worse, — we have openly violated, our faith, — that is, our public faith.
The seventh article, which is in these words, "The ratifications of the Conventions of nine states shall be sufficient for the establishment of this Constitution between the states so ratifying the same," is so flagrant a violation of the public faith of these states, so solemnly pledged to each other in the Confederation, as makes me tremble to reflect upon; for, however lightly some may think of paper and parchment constitutions, they are recorded, sir, in that high court of appeals, the Judge of which will do right, and I am confident that no such violation of public faith ever did, or ever will, go unpunished. - Mr. TREDWELL



He considered it as an object, of all others the most important, to have it fixed on its true principle; yet he was convinced that it was impracticable to have such a representation in a consolidated government. However, said he, we may approach a great way towards perfection by increasing the representation and limiting the powers of Congress. He considered that the great interests and liberties of the people could only be secured by the state governments. He admitted that, if the new government was only confined to great national objects, it would be less exceptionable; but it extended to every thing dear to human nature. That this was the case, would be proved without any long chain of reasoning; for that power which had both the purse and the sword had the government of the whole country, and might extend its powers to any and to every object. He had already observed that, by the true doctrine of representation, this principle was established — that the representative must be chosen by the free will of the majority of his constituents. It therefore followed that the representative should be chosen from small districts. This being admitted, he would ask, Could 65 men for 3,000,000, or 1 for 30,000, be chosen in this manner? Would they be possessed of the requisite information to make happy the great number of souls that were spread over this extensive country? There was another objection to the clause: if great affairs of government were trusted to few men, they would be more liable to corruption. Corruption, he knew, was unfashionable amongst us, but he supposed that Americans were like other men; and though they had hitherto displayed great virtues, still they were men; and therefore such steps should be taken as to prevent the possibility of corruption. We were now in that stage of society in which we could deliberate with freedom; how long it might continue, God only knew! Twenty years hence, perhaps, these maxims might become unfashionable. We already hear, said he, in all parts of the country, gentlemen ridiculing that spirit of patriotism, and love of liberty, which carried us through all our difficulties in times of danger. When patriotism was already nearly hooted out of society, ought we not to take some precautions against the progress of corruption? - Mr. SMITH



Will any man, who entertains a wish for the safety of his country, trust the sword and the purse with a single assembly organized on principles so defective — so rotten? Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces, would be to establish a despotism; the definition of which is, a government in which all power is concentred in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people. These considerations show clearly that a government totally different must be instituted. They had weight in the Convention who formed the new system. It was seen that the necessary powers were too great to be trusted to a single body; they therefore formed two branches, and divided the powers, that each might be a check upon the other. This was the result of their wisdom; and I presume that every reasonable man will agree to it. The more this subject is explained, the more clear and convincing it will appear to every member of this body. The fundamental principle of the old Confederation is defective; we must totally eradicate and discard this principle before we can expect an efficient government. The gentlemen who have spoken to-day have taken up the subject of the ancient confederacies; hut their view of them has been extremely partial and erroneous. The fact is, the same false and impracticable principle ran through the ancient governments. The first of these governments that we read of, was the Amphictyonic confederacy. The council which managed the affairs of this league possessed powers of a similar complexion to those of our present Congress. The same feeble mode of legislation in the head, and the same power of resistance in the members, prevailed. When a requisition was made, it rarely met a compliance; and a civil war was the consequence. Those that were attacked called in foreign aid to protect them; and the ambitious Philip, under the mask of an ally to one, invaded the liberties of each, and finally subverted the whole. – Mr HAMILTON



The gentleman has attempted to give an unjust and unnatural coloring to my observations. I am really at a loss to determine whence he draws his inference. I declare that the dissolution of the Union is, of all events, the remotest from my wishes. That gentleman may wish for a consolidated, I wish for a federal republic. The object of both of us is a firm, energetic government; and we may both have the good of our country in view, though we disagree as to the means of procuring it. It is not fair reasoning to infer that a man wants no government at all, because he attempts to qualify it so as to make it safe and easy.


I only rise to observe that the gentleman has misunderstood me. What I meant to express was this — that if we argued from possibilities only, — if we reasoned from chances, or an ungovernable propensity to evil, instead of taking into view the control which the nature of things, or the form of the Constitution, provided, — the argument would lead us to withdraw all confidence from our fellow-citizens, and discard the chimerical idea of government. This is a true deduction from such reasoning.


Extracts from the North Carolina Ratification Debates

One can find the entire North Carolina Debates here: Ratification of the Constitution by the State of North Carolina


The gentleman has wandered out of his way to tell us — what has so often been said out of doors — that there is no declaration of rights; that consequently all our rights are taken away. It would be very extraordinary to have a bill of rights, because the powers of Congress are expressly defined; and the very definition of them is as valid and efficacious a check as a bill of rights could be, without the dangerous implication of a bill of rights. The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those rights which we have not given away to the general government. The gentleman is a professional man. If a gentleman had made his last will and testament, and devised or bequeathed to a particular person the sixth part of his property, or any particular specific legacy, could it be said that that person should have the whole estate? If they can assume powers not enumerated, there was no occasion for enumerating any powers. The gentleman is learned. Without recurring to his learning, he may only appeal to his common sense; it will inform him that, if we had all power before, and give away but a part, we still retain the rest. It is as plain a thing as possibly can be, that Congress can have no power but what we expressly give them. There is an express clause which, however disingenuously it has been perverted from its true meaning, clearly demonstrates that they are confined to those powers which are given them. This clause enables them to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or any department or officers thereof." This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws. I hope this will satisfy gentlemen.  Mr. MACLAINE.


Mr. Chairman, the learned member from Anson says that the federal courts have exclusive jurisdiction of all cases in law and equity arising under the Constitution and laws of the United States. The opinion which t have always entertained is, that they will, in these cases, as well as in several others, have concurrent jurisdiction with the state courts, and not exclusive jurisdiction. I see nothing in this Constitution which hinders a man from bringing suit wherever he thinks he can have justice done him. The jurisdiction of these courts is established for some purposes with which the state courts have nothing to do, and the Constitution takes no power from the state courts which they now have. They will have the same business which they have now, and if so, they will have enough to employ their time. We know that the gentlemen who preside in our superior courts have more business than they can determine. Their complicated jurisdiction, and the great extent of country, occasions them a vast deal of business. The addition of the business of the United States would be no manner of advantage to them. It is obvious to every one that there ought to be one Supreme Court for national purposes. But the gentleman says that a bill of rights was necessary. It appears to me, sir, that it would have been the highest absurdity to undertake to define what rights the people of the United States were entitled to; for that would be as much as to say they were entitled to nothing else. A bill of rights may be necessary in a monarchical government, whose powers are undefined. Were we in the situation of a monarchical country? No, sir. Every right could not be enumerated, and the omitted rights would be sacrificed, if security arose from an enumeration. The Congress cannot assume any other powers than those expressly given them, without a palpable violation of the Constitution. Such objections as this, I hope, will have no effect on the minds of any members in this house. When gentlemen object, generally, that it tends to consolidate the states and destroy their state judiciaries, they ought to be explicit, and explain their meaning. They make use of contradictory arguments. The Senate represents the states, and can alone prevent this dreaded consolidation; yet the powers of the Senate are objected to. The rights of the people, in my opinion, cannot be affected by the federal courts. I do not know how inferior courts will be regulated. Some suppose the state courts will have this business. Others have imagined that the continent would be divided into a number of districts, where courts would be held so as to suit the convenience of the people. Whether this or some other mode will be appointed by Congress, I know not; but this I am sure of, that the state judiciaries are not divested of their present judicial cognizance, and that we have every security that our ease and convenience will be consulted. Unless Congress had this power, their laws could not be carried into execution.  Gov. JOHNSTON


Did any man ever hear, before, that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell? — or could he, without absurdity, say, "'Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other." A bill of rights, as I conceive, would not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, "We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them." Thus a bill of rights might operate as a snare rather than a protection. If we had formed a general legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American constitutions, where the powers of legislation are general. But where they are powers of a particular nature, and expressly defined, as in the case of the Constitution before us, I think, for the reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous.  Mr. IREDELL.


The instrument ought to contain such a definition of authority as would leave no doubt; and if there be any ambiguity, it ought not to be admitted. He says this construction is not agreeable to the people, though he acknowledges it is a right one. In my opinion, there is no man, of any reason at all, but must be satisfied with so clear and plain a definition. If the Congress should claim any power not given them, it would he as bare a usurpation as making a king in America. If this Constitution be adopted, it must be presumed the instrument will be in the hands of every man in America, to see whether authority be usurped; and any person by inspecting it may see if the power claimed be enumerated. If it be not, he will know it to be a usurpation.  Mr. IREDELL.




expressed great astonishment that the people were alarmed on the subject of religion. This, he said, must have arisen from the great pains which had been taken to prejudice men's minds against the Constitution. He begged leave to add the following few observations to what had been so ably said by the gentleman last up.
I read the Constitution over and over, but could not see one cause of apprehension or jealousy on this subject. When I heard there were apprehensions that the pope of Rome could be the President of the United States, I was greatly astonished. It might as well be said that the king of England or France, or the Grand Turk, could be chosen to that office. It would have been as good an argument. It appears to me that it would have been dangerous, if Congress could intermeddle with the subject of religion. True religion is derived from a much higher source than human laws, When any attempt is made, by any government, to restrain men's consciences, no good consequence can possibly follow. It is apprehended that Jews, Mahometans, pagans, &c., may be elected to high offices under the government of the United States Those who are Mahometans, or any others who are not professors of the Christian religion, can never be elected to the office of President, or other high office, but in one of two cases. First, if the {199} people of America lay aside the Christian religion altogether, it may happen. Should this unfortunately take place, the people will choose such men as think as they do themselves. Another case is, if any persons of such descriptions should, notwithstanding their religion, acquire the confidence and esteem of the people of America by their good conduct and practice of virtue, they may be chosen. I leave it to gentlemen's candor to judge what probability there is of the people's choosing men of different sentiments from themselves.



further explained the clause. That the limitation of this trade to the term of twenty years was a compromise between the Eastern States and the Southern States. South Carolina and Georgia wished to extend the term. The Eastern States insisted on the entire abolition of the trade. That the state of North Carolina had not thought proper to pass any law prohibiting the importation of slaves, and therefore its delegation in the Convention did not think themselves authorized to contend for an immediate prohibition of it.



begged leave to explain the reason of this clause. In some of the Northern States they have emancipated all their slaves. If any of our slaves, said he, go there, and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the Southern States; and to prevent it, this clause is inserted in the Constitution. Though the word slave is not mentioned, this is the meaning of it. The northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.



Mr. Chairman, the gentleman insinuates that differences existed in the Federal Convention respecting the clauses which he objects to. Whoever told him so was wrong; for I declare that, in that Convention, the unanimous desire of all was to keep separate and distinct the objects of the jurisdiction of the federal from that of the state judiciary. They wished to separate them as judiciously as possible, and to consult the ease and convenience of the people. The gentleman objects to the cognizance of all cases in law and equity arising under the Constitution and the laws of the United States. This objection is very astonishing. When any government is established, it ought to have power to enforce its laws, or else it might as well have no power. What but that is the use of a judiciary? The gentleman, from his profession, must know that no government can exist without a judiciary to enforce its laws, by distinguishing the disobedient from the rest of the people, and imposing sanctions for securing the execution of the laws. As to the inconvenience of distant attendance, Congress has power of establishing inferior tribunals in each state, so as to accommodate every citizen. As Congress have it in their power, will they not do it? Are we to elect men who will wantonly and unnecessarily betray us?



Mr. Chairman, the worthy gentleman up last has given me information on the subject which I had never heard before. Hearing so many opinions, I did not know which was right. The honorable gentleman has said that the state courts and the courts of the United States would have concurrent jurisdiction. I beg the committee to reflect what would be the consequence of such measures. It has ever been considered that the trial by jury was one of the greatest rights of the people. I ask whether, if such causes go into the federal court, the trial by jury is not cut off, and whether there is any security that we shall have justice done us. I ask if there be any security that we shall have juries in civil causes. In criminal cases there are to be juries, but there is no provision made for having civil causes tried by jury. This concurrent jurisdiction is inconsistent with the security of that great right. If it be not, I would wish to hear how it is secured. I have listened with attention to what the learned gentlemen have said, and have endeavored to see whether their arguments had any weight; but I found none in them. Many words have been spoken, and long time taken up; but with me they have gone in at one ear, and out at the other. It would give me much pleasure to hear that the trial by jury was secured.



If I understand the gentleman right, his objection was not to the defined jurisdiction, but to the general jurisdiction, which is expressed thus: "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;" and also the appellate jurisdiction in some instances. Every member who has read the Constitution with attention must observe that there are certain fundamental principles in it, both of a positive and negative nature, which, being intended for the general advantage of the community, ought not to be violated by any future legislation of the particular states. Every member will agree that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to disregarded or violated. Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened. There are certain prohibitory provisions in this Constitution, the wisdom and propriety of which must strike every reflecting mind, and certainly meet with the warmest approbation of every citizen of this state. It provides, "that no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; that no preference shall be given, by any regulation of commerce or revenue, to the ports of one state over those of another; and that no state shall emit bills of credit, make any thing but gold and silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." These restrictions ought to supersede the laws of particular states. With respect to the prohibitory provision — that no duty or impost shall be laid by any {157} particular state — which is so highly in favor of us and the other non-importing states, the importing states might make laws laying duties notwithstanding, and the Constitution might be violated with impunity, if there were no power in the general government to correct and counteract such laws.


Extracts from the Pennsylvania Ratification Debates

One can find the entire Pennsylvania Debates here: Ratification of the Constitution by the State of Pennsylvania


Sir, I think there is another subject with regard to which this Constitution deserves approbation. I mean the accuracy with which the line is drawn between the powers of the general government and those of the particular state governments. We have heard some general observations, on this subject, from the gentlemen who conduct the opposition. They have asserted that these powers are unlimited and undefined. These words are as easily pronounced as limited and defined. They have already been answered by my honorable colleague, (Mr. M'Kean;) therefore I shall not enter into an explanation. But it is not pretended that the line is drawn with mathematical precision; the inaccuracy of language must, to a certain degree, prevent the accomplishment of such a desire. Whoever views the matter in a true light, will see that the powers are as minutely enumerated and defined as was possible, and will also discover that the general clause, against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted.  Mr. WILSON



A very important difficulty arose from comparing the extent of the country to be governed with the kind of government which it would be proper to establish in it. It has been an opinion, countenanced by high authority, "that the natural property of small states is to be governed as a republic; of middling ones, to be subject to a monarchy; and of large empires, to be swayed by a despotic prince; — and that the consequence is, that, in order to preserve the principles of the established government, the state must be supported in the extent it has acquired; and that the spirit of the state will alter in proportion as it extends or contracts its limits." (Montesquieu, b. 8, c. 20.) This opinion seems to be supported, rather than contradicted, by the history of the governments in the old world. Here, then, the difficulty appeared in full view. On one hand, the United States contain an immense extent of territory; and, according to the foregoing opinion, a despotic government is best adapted to that extent. On the other hand, it was well known, that, however the citizens of the United States might with pleasure submit to the legitimate restraints of a republican constitution, they would reject with indignation the fetters of despotism. What, then, was to be done? The idea of a confederate republic presented itself. This kind of constitution has been thought to have "all the internal advantages of a republican together with the external force of a monarchical government."  Mr. WILSON



There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable. Where does this power reside? To this question writers on different governments will give different answers. Sir William Blackstone will tell you, that in Britain the power is lodged in the British Parliament; that the Parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are, at least, no traces of practice conformable to such a principle. The British constitution is just what the British Parliament pleases. When the Parliament transferred legislative authority to Henry VIII., the act transferring could not, in the strict acceptation of the term, be called unconstitutional.
To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states.
Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed, the superiority, in this last instance, is much greater; for the people possess over our constitutions control in act, as well as right.  Mr. WILSON

In this Constitution, all authority is derived from the people.    Mr. WILSON



The secret is now disclosed, and it is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power. Before I go into the examination of this point, let me ask one important question. Upon what principle is it contended that the sovereign power resides in the state governments? The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now, if there cannot, my position is, that the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare. This Constitution stands upon this broad principle. I know very well, sir, that the people have hitherto been shut out of the federal government; but it is not meant that they should any longer be dispossessed of their rights. In order to recognize this leading principle, the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone. We have heard much about a consolidated government. I wish the honorable gentleman would condescend to give us a definition of what he meant by it. I think this the more necessary, because I apprehend that the term, in the numerous times it has been used, has not always been used in the same sense. It may be said, and I believe it has been said, that a consolidated government is such as will absorb and destroy the governments of the several states. If it is taken in this view, the plan before us is not a consolidated government, as I showed on a former day, and may, if necessary, show further on some future occasion. On the other hand, if it is meant that the general government will take from the state governments their power in some particulars, it is confessed, and evident, that this will be its operation and effect.  Mr. WILSON



When I made the observation that some politicians would say the supreme power was lodged in our state constitutions, I did not suspect that the honorable gentleman from Westmoreland (Mr. Findley) was included in that description;
but I find myself disappointed; for I imagined his opposition would arise from another consideration. His position is, that the supreme power resides in the states, as governments; and mine is, that it resides in the people, as the fountain of government; that the people have not — that the people meant not — and that the people ought not — to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject.
I consider the people of the United States as forming one great community; and I consider the people of the different states as forming communities, again, on a lesser scale. From this great division of the people into distinct communities, it will be found necessary that different proportions of legislative powers should be given to the governments, according to the nature, number, and magnitude of their objects.
Unless the people are considered in these two views, we shall never be able to understand the principle on which this system was constructed. I view the states as made for the people, as well as by them, and not the people as made for the states; the people, therefore, have a right, whilst enjoying (the undeniable powers of society, to form either a general government, or state governments, in what manner they please, or to accommodate them to one another, and by this means preserve them all. This, I say, is the inherent and unalienable right of the people; and as an illustration of it, I beg to read a few words from the Declaration of Independence, made by the representatives of the United States, and recognized by the whole Union.  Mr. WILSON



State sovereignty, as it is called, is far from being able to support its weight. Nothing less than the authority of the people could either support it or give it efficacy. I cannot pass over this subject without noticing the different conduct pursued by the late federal Convention, and that observed by the Convention which framed the Constitution of Pennsylvania. On that occasion you find an attempt made to deprive the people of this right, so lately and so expressly asserted in the Declaration of Independence. We are told, in the preamble to the declaration of rights, and frame of government, that we "do, by virtue of the authority vested in us, ordain, declare, and establish, the following declaration of rights and frame of government, to be the Constitution of this commonwealth, and to remain in force therein mattered, except in such articles as shall hereafter, on experience, be found to require improvement, and which shall, by the same authority of the people, fairly delegated as this frame of government directs." — An honorable gentleman (Mr. Chambers) was well warranted in saying that all that could be done was done, to cut off the people from the right of amending; for it cannot be amended by any other mode than that which it directs; then, any number more than one third may control any number less than two thirds.
But I return to my general reasoning. My position is, sir, that, in this country, the supreme, absolute, and uncontrollable power resides in the people at large; that they have vested certain proportions of this power in the state governments; but that the fee-simple continues, resides, and remains, with the body of the people. Under the practical influence of this great truth, we are now sitting and deliberating, and under its operation, we can sit as calmly and deliberate as coolly, in order to change a constitution, as a legislature can sit and deliberate under the power of a constitution, in order to alter or amend a law. It is true, the exercise of this power will not probably be so frequent, nor resorted to on so many occasions, in one case as in the other; but the recognition of the principle cannot fail to establish it more firmly. But, because this recognition is made in the proposed Constitution, an exception is taken to the whole of it; for we are told it is a violation of the present Confederation — a Confederation of sovereign states. I shall not enter into an investigation of the present Confederation, but shall just remark that its principle is not the principle of free governments. The people of the United States are not, as such, represented in the present Congress; and, considered even as the component parts of the several states, they are not represented in proportion to their numbers and importance.  Mr. WILSON



It is urged, as a general objection to this system, that "the powers of Congress are unlimited and undefined, and that they will be the judges, in all cases, of what is necessary and proper for them to do." To bring this subject to your view, I need do no more than point to the words in the Constitution, beginning at the 8th sect. art. 1st. "The Congress (it says) shall have power," &c. I need not read over the words, but I leave it to every gentleman to say whether the powers are not as accurately and minutely defined, as can be well done on the same subject, in the same language. The old Constitution is as strongly marked on this subject; and even the concluding clause, with which so much fault has been found, gives no more or other powers; nor does it, in any degree, go beyond the particular enumeration; for, when it is said that Congress shall have power to make all laws which shall be necessary and proper, those words are limited and denned by the following, "for carrying into execution the foregoing powers." It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.  Mr. WILSON



There are two kinds of government — that where general power is intended to be given to the legislature, and that where the powers are particularly enumerated. In the last case, the implied result is, that nothing more is intended to be given than what is so enumerated, unless it results from the nature of the government itself. On the other hand, when general legislative powers are given, then the people part with their authority, and, on the gentleman's principle of government, retain nothing. But in a government like the proposed one, there can be no necessity for a bill of rights, for, on my principle, the people never part with their power. Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing. I believe the honorable speakers in opposition on this floor were members of the assembly which appointed delegates to that Convention; if it had been thought proper to have sent them into that body, how luminous would the dark conclave have been!  Mr. Wilson



Even in a single government, if the powers of the people rest on the same establishment as is expressed in this Constitution, a bill of rights is by no means a necessary measure. In a government possessed of enumerated powers, such a measure would be not only unnecessary, but preposterous and dangerous. Whence comes this notion, that in the United States there is no security without a bill of rights? Have the citizens of South Carolina no security for their liberties? They have no bill of rights. Are the citizens on the eastern side of the Delaware less free, or less secured in their liberties, than those on the western side? The state of New Jersey has no bill of rights. The state of New York has no bill of rights. The states of Connecticut and Rhode Island have no bill of rights. I know not whether I have exactly enumerated the states who have not thought it necessary to add a bill of rights to their constitutions; but this enumeration, sir, will serve to show by experience, as well as principle, that, even in single governments, a bill of rights is not an essential or necessary measure. But in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete. On the other hand, an imperfect enumeration of the powers of government reserves all implied power to the people; and by that means the constitution becomes incomplete. But of the two, it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous nor important as an omission in the enumeration of the rights of the people.  Mr. Wilson



And, in declaring "that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land," this has at last been conceded, that, though it is explicit enough, yet it gives to Congress no further powers than those already enumerated. Those that first said it gave to Congress the power of superseding the state governments, cannot persist in it; for no person can, with a tolerable face, read the clauses over, and infer that such may be the consequence.  Mr. M'KEAN



There are two kinds of government — that where general power is intended to be given to the legislature, and that where the powers are particularly enumerated. In the last case, the implied result is, that nothing more is intended to be given than what is so enumerated, unless it results from the nature of the government itself. On the other hand, when general legislative powers are given, then the people part with their authority, and, on the gentleman's principle of government, retain nothing. But in a government like the proposed one, there can be no necessity for a bill of rights, for, on my principle, the people never part with their power. Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing. I believe the honorable speakers in opposition on this floor were members of the assembly which appointed delegates to that Convention; if it had been thought proper to have sent them into that body, how luminous would the dark conclave have been!  Mr. Wilson



In the second place, we are told that there is no check upon the government but the people. It is unfortunate, sir, if their superintending authority is allowed as a check; but I apprehend that, in the very construction of this government, there are numerous checks. Besides those expressly enumerated, the two branches of the legislature are mutual checks upon each other. But this subject will be more properly discussed when we come to consider the form of the government itself;… The very manner of introducing this Constitution, by the recognition of the authority of the people, is said to change the principle of the present Confederation, and to introduce a consolidating and absorbing government.
In this confederated republic, the sovereignty of the states, it is said, is not preserved. We are told that there cannot be two sovereign powers, and that a subordinate sovereignty is no sovereignty.
It will be worth while, Mr. President, to consider this objection at large. When I had the honor of speaking formerly on this subject, I stated, in as concise a manner as possible, the leading ideas that occurred to me, to ascertain where the supreme and sovereign power resides. It has not been, nor, I presume, will it be denied, that somewhere there is, and of necessity must be, a supreme, absolute, and uncontrollable authority. This, I believe, may justly be termed the sovereign power; for, from that gentleman's (Mr. Findley) account of the matter, it cannot be sovereign unless it is supreme; for, says he, a subordinate sovereignty is no sovereignty at all. I had the honor of observing, that, if the question was asked, where the supreme power resided…   I stated, further, that, if the question was asked of some politician, who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, he would answer, that it was vested in the state constitutions. This opinion approaches near the truth, but does not reach it; for the truth is, that the supreme, absolute, and uncontrollable authority remains with the people. I mentioned, also, that the practical recognition of this truth was reserved for the honor of this country. I recollect no constitution founded on this principle; but we have witnessed the improvement, and enjoy the happiness of seeing it carried into practice. The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth.
When I made the observation that some politicians would say the supreme power was lodged in our state constitutions, I did not suspect that the honorable gentleman from Westmoreland (Mr. Findley) was included in that description;
but I find myself disappointed; for I imagined his opposition would arise from another consideration. His position is, that the supreme power resides in the states, as governments; and mine is, that it resides in the people, as the fountain of government; that the people have not — that the people meant not — and that the people ought not — to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject.  Mr. Wilson



But it is not pretended that the line is drawn with mathematical precision; the inaccuracy of language must, to a certain degree, prevent the accomplishment of such a desire. Whoever views the matter in a true light, will see that the powers are as minutely enumerated and defined as was possible, and will also discover that the general clause, against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted.  Mr. Wilson



I hope, sir, they will not be the enemies of each other, or resemble comets in conflicting orbits, mutually operating destruction; but that their motion will be better represented by that of the planetary system, where each part moves harmoniously within its proper sphere, and no injury arises by interference or opposition. Every part, I trust, will be considered as a part of the United States. Can any cause of distrust arise here? Is there any increase of risk? Or, rather, are not the enumerated powers as well denned here, as in the present Articles of Confederation?  Mr. Wilson



The framers of this Constitution wisely divided the legislative department between the two houses, subject to the qualified negative of the President of the United States, though this government embraces only enumerated powers. In a single state, annual elections may be proper; the more so, when the legislative powers extend to all cases; but in such an extent of country as the United States, and when the powers are circumscribed, there is not that necessity, nor are the objects of the general government of that nature as to be acquired immediately by every capacity.  Mr. M'KEAN



That, in all cases enumerated, except where the Supreme Court has original jurisdiction, "they shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make." From this it is inferred that the trial by jury is not secured; and an objection is set up to the system, because they have jurisdiction between citizens of different states. Regulations under this head, are necessary; but the Convention could form no one that would have suited each of the United States. It has been a subject of amazement to me to hear gentlemen contend that the verdict of a jury shall be without revision in all cases. Juries are not infallible because they are twelve in number. When the law is so blended with the fact as to be almost inseparable, may not the decision of a jury be erroneous? Yet, notwithstanding this, trial by jury is the best mode that is known.  Mr. M'KEAN



Again, because it is unnecessary; for the powers of Congress, being derived from the people in the mode pointed out by this Constitution, and being therein enumerated and positively granted, can be no other than what this positive grant conveys. (Locke on Civil Government, vol. ii, b. 2, chap. 2, sect. 140, and in the 13th chap., sect. 152.)  Mr. M'KEAN


Extracts from the Virginia Ratification Debates:

One can find the entire Virginia Debates here: Ratification of the Constitution by the State of Virginia

Mr. Madison

“the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”  James Madison - Page 59

Mr. LEE, (of Westmoreland)

“I say that this new system shows, in stronger terms than words could declare, that the liberties of the people are secure. It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated in that paper. When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed: Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional. Candor must confess that it is infinitely more attentive to the liberties of the people than any state government.”  Mr. LEE, (of Westmoreland) page 114

Mr. LEE, (of Westmoreland)

“the powers reserved to the people were but an inconsiderable exception from what were given to their rulers; but that, in the federal government, the rulers of the people were vested with certain defined powers, and that what were not delegated to those rulers were retained by the people. The consequence of this, he said, was, that the limited powers were only an exception to those which rested in the people, and that they knew what they had given up, and could be in no danger. He exemplified the proposition in a familiar manner. He observed, that, if a man delegated certain powers to an agent, it would be an insult upon common sense to suppose that the agent could legally transact any business for his principal which was not contained in the commission whereby the powers were delegated; but that, if a man empowered his representative or agent to transact all his business except certain enumerated parts, the clear result was, that the agent could lawfully transact every possible part of his principal's business except the enumerated parts; and added, that these plain propositions were sufficient to demonstrate the inutility and folly (were he permitted to use the expression) of bills of rights.” Mr. LEE, (of Westmoreland) Page 114 & 115


“This dreaded clause runs in the following words: "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 officer thereof." The committee will perceive that the Constitution had enumerated all the powers which the general government should have, but did not say how they were to be exercised. it therefore, in this clause, tells how they shall be exercised. Does this give any new power? I say not. Suppose it had been inserted, at the end of every power, that they should have power to make laws to carry that power into execution; would this have increased their powers? If, therefore, it could not have increased their powers, if placed at the end of each power, it cannot increase them at the end of all. This clause only enables them to carry into execution the powers given to them, but gives them no additional power.”  Mr. GEORGE NICHOLAS  Page 152


“But it is objected to for want of a bill of rights. It is a principle universally agreed upon, that all powers not given are retained. Where, by the Constitution, the general government has general powers for any purpose, its powers are absolute. Where it has powers with some exceptions, they are absolute only as to those exceptions. In either case, the people retain what is not conferred on the general government, as it is by their positive grant that it has any of its powers. In England, in all disputes between the king and people, recurrence is had to the enumerated rights of the people, to determine. Are the rights in dispute secured? Are they included in Magna Charta, Bill of Rights, &c.? If not, they are, generally speaking, within the king's prerogative, In disputes between Congress and the people, the reverse of the proposition holds. Is the disputed right enumerated? If not, Congress cannot meddle with it.”  Mr. GEORGE NICHOLAS  Page 153


“But, sir, this Constitution is defective because the common law is not declared to be in force! What would have been the consequence if it had? It would be immutable. But now it can be changed or modified as the legislative body may find necessary for the community. But the common law is not excluded. There is nothing in that paper to warrant the assertion. As to the exclusion of a jury from the vicinage, he has mistaken the fact. The legislature may direct a jury to come from the vicinage. But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. Treason against the United States is defined in the Constitution, and the forfeiture limited to the life of the person attainted. Congress have power to define and punish piracies and felonies committed on the high seas, and offences against the laws of nations; but they cannot define or prescribe the punishment of any other crime whatever, without violating the Constitution. If we had no security against torture but our declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded. A bill of rights is only an acknowledgment of the preëxisting claim to rights in the people. They belong to us as much as if they had been inserted in the Constitution. But it is said that, if it be doubtful, the possibility of dispute ought to be precluded. Admitting it was proper for the Convention to have inserted a bill of rights, it is not proper here to propose it as the condition of our accession to the Union. Would you reject this government for its omission, dissolve the Union, and bring miseries on yourselves and posterity? I hope the gentleman does not oppose it on this ground solely. Is there another reason? He said that it is not only the general wish of this state, but all the states, to have a bill of rights. If it be so, where is the difficulty of having this done by way of subsequent amendment? We shall find the other states willing to accord with their own favorite wish. The gentleman last up says that the power of legislation includes every thing. A general power of legislation does. But this is a special power of legislation. Therefore, it does not contain that plenitude of power which he imagines. They cannot legislate in any case but those particularly enumerated. No gentleman, who is a friend to the government, ought to withhold his assent from it for this reason.”  Page 277 & 278 Mr. GEORGE NICHOLAS



“Mr. Chairman, this clause does not give Congress power to impede the operation of any part of the Constitution, or to make any regulation that may affect the interests of the citizens of the Union at large. But it gives them power over the local police of the place, so as to be secured from any interruption in their proceedings. Notwithstanding the violent attack upon it, I believe, sir, this is the fair construction of the clause. It gives them power of exclusive legislation in any case within that district. What is the meaning of this? What is it opposed to? Is it opposed to the general powers of the federal legislature, or to those of the state legislatures? I understand it as opposed to the legislative power of that state where it shall be. What, then, is the power? It is, that Congress shall exclusively legislate there, in order to preserve serve the police of the place and their own personal independence, that they may not be overawed or insulted, and of course to preserve them in opposition to any attempt by the state where it shall be. This is the fair construction. Can we suppose that, in order to effect these salutary ends, Congress will make it an asylum for villains and the vilest characters from all parts of the world? Will it not degrade their own dignity to make it a sanctuary for villains? I hope that no man that will ever compose that Congress will associate with the most profligate characters.  Page 271



Mr. Chairman, gentlemen say there is no new power given by this clause. Is there anything in this Constitution which secures to the states the powers which are said to be retained? Will powers remain to the states which are not expressly guarded and reserved? I will suppose a case. Gentlemen may call it an impossible case, and suppose that Congress will act with wisdom and integrity. Among the enumerated powers, Congress are to lay and collect taxes, duties, imposts, and excises, and to pay the debts, and to provide for the general welfare and common defence; and by that clause (so often called the sweeping clause) they are to make all laws necessary to execute those laws. Now, suppose oppressions should arise under this government, and any writer should dare to stand forth, and expose to the community at large the abuses of those powers; could not Congress, under the idea of providing for the general welfare, and under their own construction, say that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this, lay a dangerous restriction On the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it? Might they not thus destroy the trial by jury? Would they not extend their implication? It appears to me that they may and will. And shall the support of our rights depend on the bounty of men whose interest it may be to oppress us? That Congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise, the power of providing for the general welfare may be perverted to its destruction.  Page 272



In reply to the gentlemen opposed to the clause under debate, went over the same grounds, and developed the same principles, which Mr. Pendleton and Mr. Madison had done. The opposers of the clause, which gave the power of providing for the general welfare, supposed its dangers to result from its connection with, and extension of, the powers granted in the other clauses. He endeavored to show the committee that it only empowered Congress to make such laws as would be necessary to enable them to pay the public debts and provide for the common defence; that this general welfare was united, not to the general power of legislation, but to the particular power of laying and collecting taxes, imposts, and excises, for the purpose of paying the debts and providing for the common defence, — that is, that they could raise as much money as would pay the debts and provide for the common defence, in consequence of this power. The clause which was affectedly called the sweeping clause contained no new grant of power. To illustrate this position, he observed that, if it had been added at the end of every one of the enumerated powers, instead of being inserted at the end of all, it would be obvious to any one that it was no augmentation of power. If, for instance, at the end of the clause granting power to lay and collect taxes, it had been added that they should have power to make necessary and proper laws to lay and collect taxes, who could suspect it to be an addition of power? As it would grant no new power if inserted at the end of each clause, it could not when subjoined to the whole.  Page 273



In answer to the two gentlemen last up, observed that, though there was a declaration of rights in the government of Virginia, it was no conclusive reason that there should be one in this Constitution; for, if it was unnecessary in the former, its omission in the latter could be no defect. They ought, therefore, to prove that it was essentially necessary to be inserted in the Constitution of Virginia. There were five or six states in the Union which had no bill of rights, separately and distinctly as such; but they annexed the substance of a bill of rights to their respective constitutions. These states, he further observed, were as free as this state, and their liberties as secure as ours. If so, gentlemen's arguments from the precedent were not good. In Virginia, all powers were given to the government without any exception. It was different in the general government, to which certain special powers were delegated for certain purposes. He asked which was the more safe. Was it safer to grant general powers than certain limited powers? This much as to the theory, continued he. What is the practice of this invaluable government? Have your citizens been bound by it? They have not, sir. You have violated that maxim, "that no man shall be condemned without a fair trial." That man who was killed, not secundum artem, was deprived of his life without the benefit of law, and in express violation of this declaration of rights, which they confide in so much. But, sir, this bill of rights was no security. It is but a paper check. It has been violated in many other instances. Therefore, from theory and practice, it may be concluded that this government, with special powers, without any express exceptions, is better than a government with general powers and special exceptions. But the practice of England is against us. The rights there reserved to the people are to limit and check the king's prerogative. It is easier to enumerate the exceptions to his prerogative, than to mention all the cases to which it extends. Besides, these reservations, being only formed in acts of the legislature, may be altered by the representatives of the people when they think proper. No comparison can be made of this with the other governments he mentioned. There is no stipulation between the king and people. The former is possessed of absolute, unlimited authority.



Was surprised that any gentleman should return to the clauses which had already been discussed. He begged the gentleman to read the clauses which gave the power of exclusive legislation, and he might see that nothing could be done without the consent of the states. With respect to the supposed operation of what was denominated the sweeping clause, the gentleman, he said, was mistaken; for it only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause. As to the restriction in the clause under consideration, it was a restraint on the exercise of a power expressly delegated to Congress; namely, that of regulating commerce with foreign nations.Mr. HENRY insisted that the insertion of these restrictions on Congress was a plain demonstration that Congress could exercise powers by implication. The gentleman had admitted that Congress could have interdicted the African trade, were it not for this restriction. If so, the power, not having been expressly delegated, must be obtained by implication. He demanded where, then, was their doctrine of reserved rights. He wished for negative clauses to prevent them from assuming any powers but those expressly given. He asked why it was omitted to secure us that property in slaves which we held now. He feared its omission was done with design. They might lay such heavy taxes on slaves as would amount to emancipation; and then: the Southern States would be the only sufferers. His opinion was confirmed by the mode of levying money. Congress, he {456} observed, had power to lay and collect taxes, imposts, and excises. Imposts (or duties)and excises were to be uniform; but this uniformity did not extend to taxes. This might compel the Southern States to liberate their negroes. He wished this property, therefore, to be guarded. He considered the clause, which had been adduced by the gentleman as a security for this property, as no security at all. It was no more than this — that a runaway negro could be taken up in Maryland or New York. This could not prevent Congress from interfering with that property by laying a grievous and enormous tax on it, so as to compel owners to emancipate their slaves rather than pay the tax. He apprehended it would be productive of much stock-jobbing, and that they would play into one another's hands in such a manner as that this property would be lost to the country.


Wondered that gentlemen who were against slavery should be opposed to this clause; as, after that period, the slave trade would be done away. He asked if gentlemen did not see the inconsistency of their arguments. They object, says he, to the Constitution, because the slave trade is laid open for twenty odd years; and yet they tell you that, by some latent operation of it, the slaves who are so now will be manumitted. At the same moment it is opposed for being promotive and destructive of slavery. He contended that it was advantageous to Virginia that it should be in the power of Congress to prevent the importation of slaves after twenty years, as it would then put a period to the evil complained of.  Page 280



Let me say that, in my opinion, the adversaries of the Constitution wander equally from the true meaning. If it would not fatigue the house too far, I would go back to the question of reserved rights. The gentleman supposes that complete and unlimited legislation is vested in the Congress of the United States. This supposition is founded on false reasoning. What is the present situation of this state? She has possession of all rights of sovereignty, except those given to the Confederation. She must delegate powers to the confederate government. It is necessary for her public happiness. Her weakness compels her to confederate with the twelve other governments. She trusts certain powers to the general government, in order to support, protect, and defend the Union. Now, is there not a demonstrable difference between the principle of the state government and of the general government? There is not a word said, in the state government, of the powers given to it, because they are general. But in the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it? — for if its powers were to be general, an enumeration would be needless  Mr. GEORGE NICHOLAS


But it is represented to be a consolidated government, annihilating that of the states — a consolidated government, which so extensive a territory as the United States cannot {40} admit of, without terminating in despotism. If this be such a government, I will confess, with my worthy friend, that it is inadmissible over such a territory as this country. Let us consider whether it be such a government or not. I should understand a consolidated government to be that which should have the sole and exclusive power, legislative, executive, and judicial, without any limitation. Is this such a government? Or can it be changed to such a one? It only extends to the general purposes of the Union. It does not intermeddle with the local, particular affairs of the states. Can Congress legislate for the state of Virginia? Can they make a law altering the form of transferring property, or the rule of descents, in Virginia? In one word, can they make a single law for the individual, exclusive purpose of any one state? It is the interest of the federal to preserve the state governments; upon the latter the existence of the former depends: the Senate derives its existence immediately from the state legislatures; and the representatives and President are elected under their direction and control; they also preserve order among the citizens of their respective states, and without order and peace no society can possibly exist. Unless, therefore, there be state legislatures to continue the existence of Congress, and preserve order and peace among the inhabitants, this general government, which gentlemen suppose will annihilate the state governments, must itself be destroyed. When, therefore, the federal government is, in so many respects, so absolutely dependent on the state governments, I wonder how any gentleman, reflecting on the subject, could have conceived an idea of a possibility of the former destroying the latter. But the power of laying direct taxes is objected to. Government must be supported; this cannot be done without a revenue: if a sufficient revenue be not otherwise raised, recurrence must be had to direct taxation; gentleman admit this, but insist on the propriety of first applying to the state legislatures.  Mr. PENDLETON.  Page 26


Mr. Chairman, if the resolution taken by the house of going regularly through the system, clause by clause, had been followed, I should confine myself to one particular paragraph; but as, to my surprise, the debates have taken a different turn, I shall endeavor to go through the principal parts of the argument made use of by the gentlemen in opposition to the proposed plan of government. The worthy gentleman entertained us very largely on the impropriety and dangers of the powers given by this plan to the general government; but his argument appears to me inconclusive and inaccurate; it amounts to this — that the powers given to any government ought to be small. I believe this, sir, is a new idea in politics: — powers, being given for some certain purpose, ought to be proportionate to that purpose, or else the end for which they are delegated will not be answered. It is necessary to give powers, to a certain extent, to any government. If a due medium be not observed in the delegation of such powers, one of two things must happen: if they be too small, the government must moulder and decay away; if too extensive, the people must be oppressed. As there can be no liberty without government, it must be as dangerous to make powers too limited as too great. He tells us that the Constitution annihilates the Confederation. Did he not prove that every people had a right to change their government when it should be deemed inadequate to their happiness? The Confederation being found utterly defective, will he deny our right to alter or abolish it? But he objects to the expression, "We, the people," and demands the reason why they had not said, "We, the United States of America." In my opinion, the expression is highly proper: it is submitted to the people, because on them it is to operate: till adopted, it is but a dead letter, and not binding on any one; when adopted, it becomes binding on the people who adopt it. It is proper on another account. We are under great obligations to the federal Convention, for recurring to the people, the source of all power. The gentleman's argument militates against himself: he says that persons in power never relinquish their powers willingly. If, then, the state legislatures would not relinquish part of the powers they now possess, to enable a general government to support the Union, reference to the people is necessary.  Mr. NICHOLAS.  Page 62


But it is complained that they may suspend our laws. The suspension of the writ of habeas corpus is only to take place in cases of rebellion or invasion. This is necessary in those cases; in every other case, Congress is restrained from suspending it. In no other case can they suspend our laws: and this is a most estimable security. But the influence of New England and the other Northern States is dreaded; there are apprehensions of their combining against us. Not to advert to the improbability and illiberality of this idea, it must be supposed that our population will, in a short period, exceed theirs, as their country is well settled, and we have very extensive uncultivated tracts. We shall soon outnumber them in as great a degree as they do us at this time: therefore this government, which, I trust, will last to the remotest ages, will be very shortly in our favor. Treason consists in levying war against the United States, or in adhering to their enemies, giving them aid and comfort. {103} The punishment of this well-defined crime is to be declared by Congress; no oppression, therefore, can arise on this ground. This security does away the objection that the most grievous oppressions might happen under color of punishing crimes against the general government. The limitation of the forfeiture to the life of the criminal is also an additional privilege.  Mr. NICHOLAS.  Page 64


Another argument against this disingenuous, construction is drawn from that clause which regulates representation, which is conclusive from the words themselves: "Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers." Each state will know, from its population, its proportion of any general tax. As it was justly observed by the gentleman over the way, (Mr. Randolph,) they cannot possibly exceed that proportion: they are limited and restrained expressly to it. The state legislatures have no check of this kind. Their power is uncontrolled. This excludes the danger of interference. Each collects its own taxes, and bears its own deficiencies; and officers are accountable to each government for the different collections.  Mr. NICHOLAS.  Page 151

Mr. Pendlleton

But we are told that there will be a war between the two bodies equally our representatives, and that the state government will be destroyed, and consolidated into the general government. I stated before, that this could not be so. The two governments act in different manners, and for different purposes — the general government in great national concerns, in which we are interested in common with other members of the Union; the state legislature in out mere local concerns. Is it true, or merely imaginary, that the state legislatures will be confined to the care of bridges and roads? I think that they are still possessed of the highest powers. Our dearest rights, — life, liberty, and property, — as Virginians, are still in the hands of our state legislature. If they prove too feeble to protect us, we resort to the aid of the general government for security. The true distinction is, that the two governments are established for different purposes, and act on different objects; so that, notwithstanding what the worthy gentleman said, I believe I am still correct, and insist that, if each power is confined within its proper bounds, and to its proper objects, an interference can never happen. Being for two different purposes, as long as they are limited to the different objects, they can no more clash than two parallel lines can meet. Both lay taxes, but for different purposes. The same officers may be used by both governments, which will prevent a number of inconveniences. If an invasion, or insurrection, or other misfortune, should make it necessary for the general government to interpose, this will be for the general purposes of the Union, and for the manifest interest of the states.  Mr. Pendleton   Page 187

Mr. Mason

Mr. Chairman, unless there be some restrictions on the power of calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, we may very easily see that it will produce dreadful oppressions. It is extremely unsafe, without some alterations. It would be to use the militia to a very bad purpose, if any disturbance happened in New Hampshire, to call them from Georgia. This would harass the people so much that they would agree to abolish the use of the militia, and establish a standing army. I conceive the general government ought to have power over the militia, but it ought to have some bounds. If gentlemen say that the militia of a neighboring state is not sufficient, the government ought to have power to call forth those of other states, the most convenient and contiguous. But in this case, the consent of the state legislatures ought to be had. On real emergencies, this consent will never be denied, each state being concerned in the safety of the rest. This power may be restricted without any danger. I wish such an amendment as this — that the militia of any state should not be marched beyond the limits of the adjoining state; and if it be necessary to draw them from one end of the continent to {379} the other, I wish such a check, as the consent of the state legislature, to be provided. Gentlemen may say that this would impede the government, and that the state legislatures would counteract it by refusing their consent. This argument may be applied to all objections whatsoever.  Mr. GEORGE MASON  Page 237

Mr. Madison

The honorable member is under another mistake. He wishes martial law to be exercised only in time of war, under an idea that Congress can establish it in time of peace. The states are to have the authority of training the militia according to the congressional discipline; and of governing them at all times when not in the service of the Union. Congress is to govern such part of them as may be employed in the actual service of the United States; and such part only can be subject to martial law. The gentlemen in opposition have drawn a most tremendous picture of the Constitution in this respect. Without considering that the power was absolutely indispensable, they have alarmed us with the possible abuse of it, but have shown no inducement or motive to tempt them to such abuse. Would the legislature of the state drag the militia of the eastern shore to the western frontiers, or those of the western frontiers to the eastern shore, if the local militia were sufficient to effect the intended purpose? There is something so preposterous, and so full of mischief, in the idea of dragging the militia unnecessarily from one end of the continent to the others that I think there can be no ground of apprehension, If you limit their power over the militia, you give them a pretext for substituting a standing army. If you put it in the power of the state governments to refuse the militia, by requiring their consent, you destroy the general government, and sacrifice particular states. The same principles and motives which produce disobedience to requisitions, will produce refusal in this case.  James MADISON Page 240


But, says he, the creature destroys the creator. How has he proved it? By his bare assertion. By ascribing infinitude to powers clearly limited and defined, for certain designated purposes. I shall not repeat the arguments which have fully refuted this idea of the honorable gentleman.  Mr LEE of WESTMORELAND  Page 255

Mr. Madison

The honorable member asks, Why ask for this power, and if the subsequent clause be not fully competent for the same purpose. If so, what new terrors can arise from this particular clause? It is only a superfluity. If that latitude of construction which he contends for were to take place with respect to the sweeping clause, there would be room for those horrors. But it gives no supplementary power. It only enables them to execute the delegated powers. If the delegation of their powers be safe, no possible inconvenience can arise from this clause. It is at most but explanatory. For when any power is given, its delegation necessarily involves authority to make laws to execute it. Were it possible to delineate on paper all those particular cases and circumstances in which legislation by the general legislature would be necessary, and leave to the states all the other powers, I imagine no gentleman would object to it. But this is not within the limits of human capacity. The particular powers which are found necessary to be given are therefore delegated generally, and particular and minute specification is left to the legislature.  James MADISON  Page 277


The honorable gentleman says that, if you place treaties on the same footing here as they are in England, he will consent to the power, because the king is restrained in making treaties. Will not the President and Senate be restrained? Being creatures of that Constitution, can they destroy it? Can any particular body, instituted for a particular purpose, destroy the existence of the society for whose benefit it is created? It is said there is no limitation of treaties. I defy the wisdom of that gentleman to show how they ought to be limited. When the Constitution marks out the powers to be exercised by particular departments, I say no innovation can take place. An honorable gentleman says that this is the Great Charter of America. If so, will not the last clause of the 4th article of the Constitution secure against dismemberment? It provides that "nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." And if this did not constitute security, it follows, from the nature of civil association, that no particular part shall sacrifice the whole.  Mr. NICHOLAS.  Page 322

Mr. Pendleton

The next clause settles the original jurisdiction of the Supreme Court, confining it to two cases — that of ambassadors, ministers, and consuls, and those in which a state shall be a party. It excludes its original jurisdiction in all other cases. But it appears to me that it will not restrain Congress from regulating even these, so as to permit foreign ambassadors to sue in the inferior courts, or even to compel them to do so, where their causes may be trivial, or they have no reason to expect a partial trial. Notwithstanding this jurisdiction is given to the Supreme Court, yet Congress may go further by their laws, so as to exclude its original jurisdiction, by limiting the cases wherein it shall be exercised. They may require some satisfactory evidence that the party could not expect a fair trial in the inferior court. I am struck with this view, from considering that the legislature is not excluded, by the general jurisdiction in the Constitution, from regulating it, to accommodate the convenience of the people. Yet the legislature cannot extend its original jurisdiction, which is limited to these cases only.  Mr. PENDLETON  Page 331

Mr. Madison

I have observed that gentlemen suppose that the general legislature will do every thing mischievous they possibly can, and that they will omit to do every thing good which they are authorized to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude that they will as readily do their duty as deviate from it; nor do I go on the grounds mentioned by gentlemen on the other side — that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched {537} situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.  James MADISON  Page  343

Mr. Madison

He told us that this Constitution ought to be rejected because it endangered the public liberty, in his opinion, in many instances. Give me leave to make one answer to that observation: Let the dangers which this system is supposed to be replete with be clearly pointed out: if any dangerous and unnecessary powers be given to the general legislature, let them be plainly demonstrated; and let us not rest satisfied with general assertions of danger, without examination. If powers be necessary, apparent danger is not a sufficient reason against conceding them. He has suggested that licentiousness has seldom produced the loss of liberty; but that the tyranny of rulers has almost always effected it. Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations; but, on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes. If we consider the peculiar situation of the United States, and what are the sources of that diversity of sentiment which pervades its inhabitants, we shall find great danger to fear that the same causes may terminate here in the same fatal effects which they produced in those republics. This danger ought to be wisely guarded against. Perhaps, in the progress of this discussion, it will appear that the only possible remedy for those evils, and {88} means of preserving and protecting the principles of republicanism, will be found in that very system which is now exclaimed against as the parent of oppression.  James MADISON  Page 55

Mr. Monroe

What is the object of the division of power in America? Why is the government divided into different branches? For a more faithful and regular administration. Where is there a check? We have more to apprehend from the union of these branches than from the subversion of any; and this union will destroy the rights of the people. There is nothing to prevent this coalition; but the contest which will probably subsist between the general government and the individual governments will tend to produce it. There is a division of sovereignty between the national and state governments. How far, then, will they coalesce together? Is it not to be supposed that there will be a conflict between them? If so, will not the members of the former combine together? Where, then, will be the check to prevent encroachments on the rights of the people? There is not a third essentially distinct branch, to preserve a just equilibrium, or to prevent such encroachments. In developing this plan of government, we ought to attend to the necessity of having checks. I can see no real checks in it.  JAMES MONROE  Page 136



Mr. Chairman, I conceive that the object of the discussion now before us is, whether democracy or despotism be most eligible, I am sure that those who framed the system submitted to our investigations, and those who now support it, intend the establishment and security of the former. The supporters of the Constitution claim the fide of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy, because we are convinced that it has a greater tendency to secure our liberty and promote our happiness. We admire it, because we think it a well-regulated democracy. It is recommended to the good people of this country: they are, through us, to declare whether it be such a plan of government as will establish and secure their freedom…
He then told you that your Continental governments will call forth the virtue and talents of America. This being the case, will they encroach on the power of the state governments? Will our most virtuous and able citizens wantonly attempt to destroy the liberty of the people? Will the most virtuous act the most wickedly? I differ in opinion from the worthy gentleman. I think the virtue and talents of the members of the general government will tend to the security, instead of the destruction, of our liberty. I think that the power of direct taxation is essential to the existence of the general government, and that it is safe to grant it. If this power be not necessary, and as safe from abuse as any delegated power can possibly be, then I say that the plan before you is unnecessary; for it imports not what system we have, unless it have the power of protecting us in time of peace and war.  JOHN MARSHALL Page 146

Mr. Madison

I shall take a view of certain subjects, which will lead to some reflections to quiet the minds of those gentlemen who think that the individual governments will be swallowed up by the general government. In order to effect this, it is proper to compare the state governments with the general government, with respect to reciprocal dependence, and with respect to the means they have of supporting themselves, or of encroaching on one another. At the first comparison, we must be struck with these remarkable facts. The general government has not the appointment of a single branch of the individual governments, or of any officers within the states, to execute their laws. Are not the states integral parts of the general government? Is not the President chosen under the influence of the state legislatures? May we not suppose that he will be complaisant to those from whom he has his appointment, and from whom he must have his reappointment? The senators are appointed altogether by the legislatures.  James MADISON  Page 160

Mr. Madison 

Mr. Chairman, let me ask those who oppose this part of the system, whether any alteration would not make it equally, or more liable to objections. Would it be better to fix their compensations. Would not this produce inconveniences? What authorizes us to conclude that the value of coins will continue always the same? Would it be prudent to make them dependent on the state governments for their salaries — on those who watch them with jealous eyes, and who consider them as encroaching, not on the people, but on themselves? But the worthy member supposes that Congress will fix their wages so low, that only the rich can fill the offices of senators and representatives. Who are to appoint them? The rich? No, sir; the people are to choose them. If the members of the general government were to reduce their compensations to a trifle, before the evil suggested could happen, the people could elect other members in their stead, who would alter that regulation. The people do not choose them for their wealth. If the state legislatures choose such men as senators, it does not influence the people at large in their election of representatives. They can choose those who have the most merit and least wealth. If Congress reduce their wages to a trifle, what shall prevent the states from giving a man of merit so much as will be an adequate compensation? I think the evil very remote; and if it were now to happen, the remedy is in our own hands, and may by ourselves be applied.  James MADISON  Page 233


But the insertion of the negative restrictions has given cause of triumph, it seems, to gentlemen. They suppose that it demonstrates that Congress are to have powers by implication. I will meet them on that ground. I persuade myself that every exception here mentioned is an exception, not from general powers, but from the particular powers therein vested:

To what power in the general government is the exception made respecting the importation of negroes? Not from a general power, but from a particular power expressly enumerated. This is an exception from the power given them of regulating commerce.

He asks, Where is the power to which the prohibition of suspending the habeas corpus is an exception? I contend that, by virtue of the power given to Congress to regulate courts, they could suspend the writ of habeas corpus. This is therefore an exception to that power.

The 3d restriction is, that no bill of attainder, or ex post facto law, shall be passed. This is a manifest exception to another power. We know well that attainders and ex post facto laws have always been the engines of criminal jurisprudence. This is, therefore, an exception to the criminal jurisdiction vested in that body.

The 4th restriction is, that no capitation, or other direct tax, shall be laid, unless in proportion to the census before directed to be taken. Our debates show from what power this is an exception.
The restrictions in the 5th clause are an exception to the power of regulating commerce.
The restriction in the 6th clause, that no money should be drawn from the treasury but in consequence of appropriations made by law, is an exception to the power of paying the debts of the United States; for the power of drawing money from the treasury is consequential of that of paying the public debts.

The next restriction is, that no titles of nobility shall be granted by the United States. If we cast our eyes to the manner in which titles of nobility first originated, we shall find this restriction founded on the same principles. These sprang from military and civil offices. Both are put in the hands of the United States, and therefore I presume it to be an exception to that power.

The last restriction restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state. It must have been observed before, that, though the Confederation had restricted Congress from exercising any powers not given them, yet they inserted it, not from any apprehension of usurpation, but for greater security. This restriction is provided to prevent corruption. All men have a natural inherent right of receiving emoluments from any one, unless they be restrained by the regulations of the community. An accident which actually happened operated in producing the restriction. A box was presented to our ambassador by the king of our allies. It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states, I believe that if, at that moment, when we were in harmony with the king of France, we had supposed that he was corrupting our ambassador, it might have disturbed that {466} confidence, and diminished that mutual friendship, which contributed to carry us through the war.  Page 286  } Gov. RANDOLPH

On the subject of a bill of rights, the want of which has been complained of, I will observe that it has been sanctified by such reverend authority, that I feel some difficulty in going against It. I shall not, however, be deterred from giving my opinion on this occasion, let the consequence be what it may. At the beginning of the war, we had no certain bill of rights; for our charter cannot be considered as a bill of rights; it is nothing more than an investiture, in the hands of the Virginia citizens, of those rights which belonged to British subjects. When the British thought, proper to infringe our rights, was it not necessary to mention, in our Constitution, those rights which ought to be paramount to the power of the legislature? Why is the bill of rights distinct from the Constitution? I consider bills of rights in this view — that the government should use them, when there is a departure from its fundamental principles, in order to restore them.


This is the true sense of a bill of rights. If it be consistent with the Constitution, or contain additional rights, why not put it in the Constitution? If it be repugnant to the Constitution, here will be a perpetual scene of warfare between them. The honorable gentleman has praised the bill of rights of Virginia, and called it his guardian angel, and vilified this Constitution for not having it. Give me leave to make a distinction between the representatives of the people of a particular country, who are appointed as the ordinary legislature, having no limitation to their powers, and another body arising from a compact, and with certain delineated powers. Were a bill of rights necessary in the former, it would not be in the latter; for the best security that can be in the latter is the express enumeration of its powers. But let me ask the gentleman where his favorite rights are violated. They are not violated by the 10th section, which contains restrictions on the states. Are they violated by the enumerated powers? [Here his excellency read from the 8th to the 12th article of the bill of rights.] Is there not provision made, in this Constitution, for the trial by jury in criminal cases? Does not the 3d article provide that the trial of all crimes shall be by jury, and held where the said crimes shall have been committed? Does it not follow that the cause and nature of the accusation must be produced? — because, otherwise, they cannot proceed on the cause. Every one knows that the witnesses must be brought before the jury, or else the prisoner will be discharged. Calling of evidence in his favor is coincident to his trial. There is no suspicion that less than twelve jurors will be thought sufficient. The only defect is, that there is no speedy trial. Consider how this could have been amended. We have heard complaints against it because it is supposed the jury is to come from the state at large. It will be in their power to have juries from the vicinage. And would not the complaints have been louder if they had appointed a federal court to be had in every county in the state? Criminals are brought, in this state, from every part of the country to the general court, and jurors from the vicinage are summoned to the trials. There can be no reason to prevent the general government from adopting a similar regulation.

As to the exclusion of excessive bail and fines, and cruel and unusual punishments, this would follow of itself, without a bill of rights. Observations have been made about watchfulness over those in power which deserve our attention. There must be a combination; we must presume corruption in the House of Representatives, Senate, and President, before we can suppose that excessive fines can be imposed or cruel punishments inflicted. Their number is the highest security. Numbers are the highest security in our own Constitution, which has attracted so many eulogiums from the gentlemen. Here we have launched into a sea of suspicions. How shall we cheek power? By their numbers. Before these cruel punishments can be inflicted, laws must be passed, and judges must judge contrary to justice. This would excite universal discontent and detestation of the members of the government. They might involve their friends in the calamities resulting from it, and could be removed from office. I never desire a greater security than this, which I believe to be absolutely sufficient.  Page 288  Gov. RANDOLPH


Mr. Madison

The second question which I proposed to consider, was, whether such organization be made as would be safe and convenient for the states, and the people at large. Let us suppose that the subjects of its jurisdiction are only enumerated, and power given to the general legislature to establish such courts as might be judged necessary and expedient; do not think that, in that case, any rational objection could be made to it, any more than would be made to a general power of legislation in certain enumerated cases. If that would be safe, this appears to me better and more restrictive, so far as it may be abused by extension of power. The most material part is the discrimination of superior and inferior jurisdiction, and the arrangement of its powers; as, where it shall have original, and where appellate cognizance. Where it speaks of appellate jurisdiction, it expressly provides that such regulations will be made as will accommodate every citizen, so far as practicable in any government. The principal criticism which has been made, was against the appellate cognizance as well of fact as law. I am happy that the honorable member who presides, and who is familiarly acquainted with the subject, does not think it involves any thing unnecessarily dangerous. I think that the distinction of fact, as well as law, may be satisfied by the discrimination of the civil and common law. But if gentlemen should contend that appeals, as to fact, can be extended to jury cases, I contend that, by the word regulations, it is in the power of Congress to prevent it, or prescribe such a mode as will secure the privilege of jury trial. They may make a regulation to prevent such appeals entirely; or they may remand the fact, or send it to an inferior contiguous court, to be tried; or otherwise preserve that ancient and important trial.  James Madison Page 329



Mr. Chairman, this part of the plan before us is a great improvement on that system from which we are now departing. Here are tribunals appointed for the decision of controversies which were before either not at all, or improperly, provided for. That many benefits will result from this to the members of the collective society, every one confesses. Unless its organization be defective, and so constructed as to injure, instead of accommodating, the convenience of the people, it merits our approbation. After such a candid and fair discussion by those gentlemen who support it, — after the very able manner in which they have investigated and examined it, — I conceived it would be no longer considered as so very defective, and that those who opposed it would be convinced of the impropriety of some of their objections. But I perceive they still continue the same opposition. Gentlemen have gone on an idea that the federal courts will not determine the causes which may come before them with the same fairness and impartiality with which other courts decide. What are the reasons of this supposition? Do they draw them from the manner in which the judges are chosen, or the tenure of their office? What is it that makes us trust our judges? Their independence in office, and manner of appointment. Are not the judges of the federal court chosen with as much wisdom as the judges of the state governments? Are they not equally, if not more independent? If so, shall we not conclude that they will decide with equal impartiality and candor? If there be as much wisdom and knowledge in the United States as in a particular state, shall we conclude that the wisdom and knowledge will not be equally exercised in the selection of judges?
The principle on which they object to the federal jurisdiction seems, to me, to be founded on a belief that there will not be a fair trial had in those courts. If this committee will consider it fully, they will find it has no foundation, and that we are as secure there as any where else. What mischief results from some causes being tried there? Is there not the utmost reason to conclude that judges, wisely appointed, and independent in their office, will never countenance any unfair trial? What are the subjects of its jurisdiction? Let us examine them with an expectation that causes will be as candidly tried there as elsewhere, and then determine. The objection which was made by the honorable member who was first up yesterday (Mr. Mason) has been so fully refuted that it is not worth while to notice it. He objected to Congress having power to create a number of inferior courts, according to the necessity of public circumstances. I had an apprehension that those gentlemen who placed no confidence in Congress would object that there might be no inferior courts. I own that I thought those gentlemen would think there would be no inferior courts, as it depended on the will of Congress, but that we should be dragged to the centre of the Union. But I did not conceive that the power of increasing the number of courts could be objected to by any gentleman, as it would remove the inconvenience of being dragged to the centre of the United States. I own that the power of creating a number of courts is, in my estimation, so far from being a defect, that it seems necessary to the perfection of this system. After having objected to the number and mode, he objected to the subject matter of their cognizance. [Here Mr. Marshall read the 2d section.]



“Mr. Chairman These, sir, are the points of federal jurisdiction to which he objects, with a few exceptions. Let us examine each of them with a supposition that the same impartiality will be observed there as in other courts, and then see if any mischief will result from them. With respect to its cognizance in all cases arising under the Constitution and the laws of the United States, he says that, the laws of the United States being paramount to the laws of the particular states, there is no case but what this will extend to. Has the government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.” Friday June 20th Page 353

Then there is no danger that particular subjects, small in proportion, being taken out of the jurisdiction of the state judiciaries, will render them useless and of no effect. Does the gentleman think that the state courts will have no cognizance of cases not mentioned here? Are there any words in this Constitution which exclude the courts of the states from those cases which they now possess? Does the gentleman imagine this to be the case? Will any gentleman believe it? Are not controversies respecting lands claimed under the grants of different states the only controversies between citizens of the same state which the federal judiciary can take cognizance of? The case is so clear, that to prove it would be a useless waste of time. The state courts will not lose the jurisdiction of the causes they now decide. They have a concurrence of jurisdiction with the federal courts in those cases in which the latter have cognizance.

How disgraceful is it that the state courts cannot be trusted! says the honorable gentleman. What is the language of the Constitution? Does it take away their jurisdiction? Is it not necessary that the federal courts should have cognizance of cases arising under the Constitution, and the laws, of the United States? What is the service or purpose of a judiciary, but to execute the laws in a peaceable, orderly manner, without shedding blood, or creating a contest, or availing yourselves of force? If this be the case, where an its jurisdiction be more necessary than here?  Page 341



After observing that the proposal of ratification was premature, and that the importance of the subject required the most mature deliberation, proceeded thus: —
The honorable member must forgive me for declaring my dissent from it; because, if I understand it rightly, it admits that the new system is defective, and most capitally; for, immediately after the proposed ratification, there comes a declaration that the paper before you is not intended to violate any of these three great rights — the liberty of religion, liberty of the press, and the trial by jury. What is the inference {588} when you enumerate the rights which you are to enjoy? That those not enumerated are relinquished. There are only three things to be retained — religion, freedom of the press, and jury trial. Will not the ratification carry every thing, without excepting these three things? Will not all the world pronounce that we intended to give up all the rest? Every thing it speaks of, by way of rights, is comprised in these things. Your subsequent amendments only go to these three amendments.

I feel myself distressed, because the necessity of securing our personal rights seems not to have pervaded the minds of men; for many other valuable things are omitted: — for instance, general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person without evidence of his crime, ought to be prohibited. As these are admitted, any man may be seized, any property may be taken, in the most arbitrary manner, without any evidence or reason. Every thing the most sacred may be searched and ransacked by the strong hand of power. We have infinitely more reason to dread general warrants here than they have in England, because there, if a person be confined, liberty may be quickly obtained by the writ of habeas corpus. But here a man living many hundred miles from the judges may get in prison before he can get that writ.  Page 364



But we are told that we need not be afraid of Great Britain. Will that great, that warlike, that vindictive nation lose the desire of revenging her losses and disgraces? Will she passively overlook flagrant violations of the treaty? Will she lose the desire of retrieving those laurels which are buried in America? Should I transfuse into the breast of a Briton that amor patriæ which so strongly predominates in my own, he would say, While I have a guinea, I shall give it to recover lost America!
But, says another gentleman, the maritime powers of Europe look with anxious and jealous eyes on you. While you are helpless, they will let you alone; but if you attempt to become respectable, they will crush you! Is this the language or consolation of an American? Must we acquiesce to continue in this situation? We should, by this way of reasoning, sacrifice our own honor and interests, to please those supercilious nations, and promote their interests; and, with every means of acquiring a powerful fleet, would never have a ship of the line. To promote their glory, we should become wretched and contemptible. Our national glory, our honor, our interests, forbid this disgraceful conduct. It may be said that the ancients, who deserved and acquired glory, have lost their liberty. Call to mind the many nations of Indians and cannibals that have lost it likewise. {635} And who would not rather be a Roman, than one of those who hardly deserve to be enumerated among the human species?  Page 391 Mr. INNES

Gov Randolph

I am afraid I have tired the patience of this house; but I trust you will pardon me, as I was urged by the importunity of the gentleman in calling for the reasons of laying the groundwork of this plan. It is objected by the honorable gentleman over the way (Mr. George Mason) that a republican government is impracticable in an extensive territory, and the extent of the United States is urged as a reason for the rejection of this Constitution. Let us consider the definition of a republican government, as laid down by a man who is highly esteemed. Montesquieu, so celebrated among politicians, says, that "a republican government is that in which the body, or only a part, of the people is possessed of the supreme power; a monarchical, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person, without law and without rule, directs everything by his own will and caprice." This author has not distinguished a republican government from a monarchy by the extent of its boundaries, but by the nature of its principles. He, in another place, contradistinguishes it as a government of laws, in opposition to others which he denominates a government of men.  Page 53


Mr. Chairman, this part of the plan before us is a great improvement on that system from which we are now departing. Here are tribunals appointed for the decision of controversies which were before either not at all, or improperly, provided for. That many benefits will result from this to the members of the collective society, every one confesses. Unless its organization be defective, and so constructed as to injure, instead of accommodating, the convenience of the people, it merits our approbation. After such a candid and fair discussion by those gentlemen who support it, — after the very able manner in which they have investigated and examined it, — I conceived it would be no longer considered as so very defective, and that those who opposed it would be convinced of the impropriety of some of their objections. But I perceive they still continue the same opposition. Gentlemen have gone on an idea that the federal courts will not determine the causes which may come before them with the same fairness and impartiality with which other courts decide. What are the reasons of this supposition? Do they draw them from the manner in which the judges are chosen, or the tenure of their office? What is it that makes us trust our judges? Their independence in office, and manner of appointment. Are not the judges of the federal court chosen with as much wisdom as the judges of the state governments? Are they not equally, if not more independent? If so, shall we not conclude that they will decide with equal impartiality and candor? If there be as much wisdom and knowledge in the United States as in a particular state, shall we conclude that the wisdom and knowledge will not be equally exercised in the selection of judges?

The principle on which they object to the federal jurisdiction seems, to me, to be founded on a belief that there will not be a fair trial had in those courts. If this committee will consider it fully, they will find it has no foundation, and that we are as secure there as any where else. What mischief results from some causes being tried there? Is there not the utmost reason to conclude that judges, wisely appointed, and independent in their office, will never countenance any unfair trial? What are the subjects of its jurisdiction? Let us examine them with an expectation that causes will be as candidly tried there as elsewhere, and then determine. The objection which was made by the honorable member who was first up yesterday (Mr. Mason) has been so fully refuted that it is not worth while to notice it. He objected to Congress having power to create a number of inferior courts, according to the necessity of public circumstances. I had an apprehension that those gentlemen who placed no confidence in Congress would object that there might be no inferior courts. I own that I thought those gentlemen would think there would be no inferior courts, as it depended on the will of Congress, but that we should be dragged to the centre of the Union. But I did not conceive that the power of increasing the number of courts could be objected to by any gentleman, as it would remove the inconvenience of being dragged to the centre of the United States. I own that the power of creating a number of courts is, in my estimation, so far from being a defect, that it seems necessary to the perfection of this system. After having objected to the number and mode, he objected to the subject matter of their cognizance. [Here Mr. Marshall read the 2d section.]


Mr Madison

But the honorable member sees great danger in the provision concerning the militia. This I conceive to be an additional security to our liberty, without diminishing the power of the states in any considerable degree. It appears to me so highly expedient that I should imagine it would have found advocates even in the warmest friends of the present system. The authority of training the militia, and appointing the officers, is reserved to the states. Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repel invasions: these are the only cases wherein they can interfere with the militia; and the obvious necessity of their having power over them in these cases must convince any reflecting mind. Without uniformity of discipline, military bodies would be incapable of action: without a general controlling power to call forth the strength of the Union to repel invasions, the country might be overrun and conquered by foreign enemies: without such a power to suppress insurrections, our liberties might be destroyed by domestic faction, and domestic tyranny be established.
But, sir, on whom does this general government depend? It derives its authority from these governments, and from the same sources from which their authority is derived. The members of the federal government are taken from the same men from whom those of the state legislatures are taken. If we consider the mode in which the federal representatives will be chosen, we shall be convinced that the general will never destroy the individual governments; and this conviction must be strengthened by an attention to the construction of the Senate. The representatives will be chosen probably under the influence of the members of the state legislatures; but there is not the least probability that the election of the latter will be influenced by the former. One hundred and sixty members represent this commonwealth in one branch of the legislature, are drawn from the people at large, and must ever possess more influence than the few men who will be elected to the general legislature.
Those who wish to become federal representatives must depend on their credit with that class of men who will be the most popular in their counties; who generally represent the people in the state governments; they can, therefore, never succeed in any measure contrary to the wishes of those on whom they depend. It is almost certain, therefore, that the deliberations of the members of the federal House of Representatives will be directed to the interest of the people of America. As to the other branch, the senators will be appointed by the legislatures; and, though elected for six years, I do not conceive they will so soon forget the source from whence they derive their political existence.


Mr. Madison

I appeal to our past experience, whether they will attend to the interests of their constituent states. Have not those gentlemen, who have been honored with seats in Congress, often signalized themselves by their attachment to their seats? I wish this government may answer the expectation of its friends, and foil the apprehension of its enemies. I hope the patriotism of the people will continue, and be a sufficient guard to their liberties. I believe its tendency will be, that the state governments will counteract the general interest, and ultimately prevail. The number of the representatives is yet sufficient for our safety, and will gradually increase; and, if we consider their different sources of information, the number will not appear too small.
By the new system, a majority of the states cannot introduce amendments; nor are all the states required for that purpose; three fourths of them must concur in alterations; in this there is a departure from the federal idea. The members to the national House of Representatives are to be chosen by the people at large, in proportion to the numbers in the respective districts. When we come to the Senate, its members are elected by the states in their equal and political capacity. But had the government been completely consolidated, the Senate would have been chosen by the people in their individual capacity, in the same manner as the members of the other house. Thus it is of a complicated nature; and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.


Mr. Mason

Let us advert to the 6th article. It expressly declares, that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which Shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby; any thing in the Constitution or laws of any state to the contrary notwithstanding." Now, sir, if the laws and Constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government? The bill of rights is a part of our own Constitution. The judges are obliged to take notice of the laws of the general government; consequently, the rights secured by our bill of rights are given up. If they are not given up, where are they secured? By implication! Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power. Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government? These rights are given up in that paper; but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity. If a check be necessary in our own state government, it is much more so in a government where our representatives are to be at the distance of a thousand miles from us, without any responsibility.



I suppose the general government, as being paramount, would prevail. How are two legislatures to coincide, with powers transcendent, supreme, and omnipotent? for such is the definition of a legislature. There must be an external interference, not only in the collection of taxes, but in the judiciary. Was there ever such a thing in any country before? Great Britain never went so far in the stamp act. Poyning's law — the abhorrence of the Irish — never went so far. I never heard of two supreme coördinate powers in one and the same country before. I cannot conceive how it can happen. It surpasses every thing that I have read of concerning other governments, or that I can conceive by the utmost exertion of my faculties Mr. GRAYSON. Page 175




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