"Reviving the American tradition of liberty"
New Views
OF THE
Constitution
OF THE
United StatesJOHN TAYLOR
of Caroline
DISTRICT OF COLUMBIA, to wit:
BE IT REMEMBERED, That on the nineteenth day of November, in the year of our Lord one thousand eight hundred and twenty-three, and of the Independence of the United States of America, the forty-eighth, JOHN TAYLOR, of the said District, hath deposited in the office of the Clerk of the District Court for the District of Columbia, the tide of a book, the right whereof he claims as proprietor in the words following, to wit:
"New Views of the Constitution of the United States. By John Taylor, of Caroline, Virginia."
In conformity to the act of the Congress of the United States, entitled "An Act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies during the times therein mentioned," and also to the act, entitled "An Act supplementary to an act, entitled "An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies during the times therein mentioned," and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints."
IN TESTIMONY WHEREOF, I have hereunto set my hand, and affixed the public seal of my office, the day and year aforesaid.
EDMUND I. LEE,
Clerk of the District Court for the District of Columbia.
CONTENTS
Preface
[Introduction, by Jon Roland]
1 The Meaning of Certain Primary Words
2 The Journal of the Convention
3 The Subject Continued
4 The Subject Continued
5 The Subject Concluded
6 Yates's Notes
7 The Subject Concluded
8 The Federalist
9 The Subject Continued
10 The Subject Continued
11 The Subject Continued
12 The Subject Concluded
13 Sovereignty
14 One of the People
15 Other Consolidating Doctrines
16 A Federal and National Form of Government Compared
17 Construction
PREFACE
THAT many eminent and respectable men have ever preferred, and ever will prefer, a consolidated national government to our federal system; that the constitution, under the influence of this predilection, has been erroneously construed; that these constructions are rapidly advancing towards their end, whether it shall be consolidation or disunion; that they will become a source of excessive geographical discord; and that the happiness and prosperity of the United States will be greater under a federal than under a national government, in any form, are the opinions which have suggested the following treatise. If the survey taken of these subjects is not proportioned to their importance, it yet may not be devoid of novelty, nor wholly ineffectual towards attracting more publick attention towards a question involving a mass of consequences either very good or very bad.
SECTION I
The Meaning of Certain Primary Words
I shall attempt to ascertain the nature of our form of government, and the existence of a project to alter it. Principles and words are the disciplinarians of construction, but the latter require definitions to come at truth.
The word union is inexplicit. It may imply either a perfect consolidation; or an association for special purposes, reaching only stated objects, and limited by positive restrictions. Of civil unions, the matrimonial is the most intimate; and yet the parties to it are invested with separate and independent rights. The ancient union of the independent kingdoms of Spain, effected by marriage or conquest, left to each many local privileges. The union of England and Scotland, effected by compact, contains stipulations beyond the power of the united government to alter, especially that in relation to the religion of the latter kingdom. That between England and Ireland is a political consolidation. The latter kingdom did not obtain an establishment of the Roman Catholick religion. Had the majority of the people possessed free will, they would have reserved this local right; and the Roman Catholick religion, like the Presbyterian, would have been placed beyond the reach of the united representation in parliament; just as the reserved rights of the states are placed beyond the reach of our united representation in Congress; because political unions for special purposes, cannot be defeated by inferences from the form adopted for their execution. In order to determine whether the United States meant by the term union, to establish a supreme power or a limited association, we must commence our inquiry at their political birth, and accommodate our arguments with the principles they avowed in proclaiming their political existence. These are stated in the declaration of independence: "We the representatives of the United States of America, in general Congress assembled, appealing to the Supreme Judge of the world, for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent states; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things, which independent states may of right do." Such is the origin of our liberty, and the foundation of our form of government. The consolidating project ingeniously leaves unexamined the arguments suggested by this declaration, and commences its lectures at the end of the subject to be considered. If the declaration of independence is not obligatory, our intire political fabrick has lost its magna charta, and is without any solid foundation. But if it is the basis of our form of government, it is the true expositor of the principles and terms we have adopted.The word "united" is used in conjunction with the phrase "free and independent states," and this association recognises a compatibility between the sovereignty and the union of the several states. The regulation of commerce is enumerated among the rights of sovereignty, and this right having been exercised by each state under their first confederation, because it was not surrendered, is an evidence of what was meant by the sovereignty of the states, and a proof that the separate sovereignty of each, and not a consolidated sovereignty of all, was established by the declaration of independence. The same observation applies to the sovereign rights of the states, not surrendered by the existing federal constitution.Take from the states the political character they assumed by the declaration of independence, and they could not have united. To contract, to stipulate, to unite, are among the "acts and things which independent states may of right do." The first confederation or union recognises the compatibility between the union and the sovereignty of the states. The existing union adheres to the same idea, professes to establish a more perfect union of states created by the Declaration of Independence, and contains many provisions incapable of being executed except by state sovereignty. It uses the words "United States," taken by the first confederation from the declaration of independence, and transplanted from both these instruments, in which they are associated with positive assertions of the independence and sovereignty of each state; and therefore the last instrument, like the others, recognises the compatibility between the union and the sovereignty of the several states.
The notion that the "freedom and independence of the states" refers to a consolidation of states, admits of a perfect refutation. It would render the language of the declaration of independence ungrammatical, because had this been intended, it ought to have recognised the rights of sovereignty as residing in one consolidated state, and not in several states. It would have rendered the confederation unnecessary; because, had the declaration of independence invested a consolidation of states with a power to do "all acts and things which a free and independent state may of right do," there would not have existed the least reason for delegating powers to a federal Congress. It would have divested each province or state of the right to make and alter its own constitution and its own laws; and it would have converted the exercise of any sovereign power by a state, subsequently to the declaration of independence, into usurpation. The contemporary construction of the declaration of independence was completely adverse to the idea that it had conferred any sovereign power, whatever, upon a consolidation of states. Hence a confederation became necessary; and hence the several states exercised, among others, the sovereign powers of raising armies, imposing taxes, and regulating commerce. The language used in the declaration of independence was adopted and explained by the confederation framed in 1777. It is entitled a "perpetual union," its style was "The United States of America," and it declares that "each state retains its sovereignty." So far state sovereignty is explicitly recognised, and no idea existed that it had been lost by a union of states. Upon trial, it being discovered that the powers bestowed upon Congress by the first confederation, were insufficient "for their common defence and general welfare," the ends it expresses; another union was framed by the constitution of 1787, rendered more perfect by enlarging federal powers, and repeating the same words of "common defence and general welfare" as its chief ends. If this phrase was understood, as neither creating a supreme national government, nor extending the powers delegated by the confederation of 1777, it must have been also understood in the same sense when used in the constitution of 1787. Its meaning is ascertained by the tenth section of the latter instrument. The individual states are prohibited from exercising certain attributes of sovereignty, particularly those of making war, treaties, and regulating commerce, because, except for the prohibition, they would have retained them, as adjuncts of sovereignty. The prohibition is therefore a construction of this phrase, corresponding with the construction it received when used in the confederation of 1777, and uniting both instruments with the public opinion, that neither the word union, nor this specification of its objects, extended delegated powers, created a general government or supremacy, or deprived the states of any attributes of sovereignty except those prohibited.
The word consolidation, colloquially adopted, expresses an idea opposite to that universally supposed to be conveyed by a political union of sovereign and independent states, and inconsistent with limited powers, or positive restrictions. It implies a fusion of the state sovereignties into one mass, so that each would lose its individuality. Had this event taken place, the aggregate sovereignty would certainly have imbibed all the powers annexed to the materials of which it was compounded, and the several states would not have retained a single power. We must therefore either conclude that a consolidated sovereignty was established, or that every attribute of sovereignty remained with the states, except the attributes prohibited, because these prohibitions are the only rule by which those they surrendered can be distinguished from those they retained. Had a concentrated sovereignty or supremacy been contemplated by either of our three political instruments, it would have been expressed by consolidation or an equivalent word. As this was not the case at either era, the declaration of independence, the confederation of 1777, and the constitution of 1787, have used the same words and phrases to express the publick opinion; and if the Jesuit, construction, can extract a consolidated supremacy or sovereignty out of the last of these instruments, it must have been created by the two former.
The word Congress requires attention. It was adopted by the provinces, and the declaration of independence was framed "by the representatives of the United States in Congress assembled." The representative character, was common to the Congress of the provinces, of the states under the confederation of 1777, and of the states under the constitution of 1787; but neither this character, nor the intrinsick meaning of the word, were supposed to convey any powers until very lately. If the phrase "Congress of the United States," or the representative character of one branch of that body, had conveyed implied powers, it would have been useless to grant specified legislative powers to this "Congress of the United States" by the first article of the constitution. The numerous sovereign powers not granted by this article, must either pass by implication, or not pass at all. If they did not pass by this mode of conveyance, they remained with the states. The implication or inference is obviated by selecting the word "Congress" in preference to the words parliament or assembly, to the comprehensiveness of which the states had been accustomed. It was the precise word used to express a congregation of deputies from independent states or governments. In that sense it was adopted by the provinces, used in the confederation of 1777, and repeated in the constitution. No word could have been selected with equal felicity, to convey the idea contemplated by a federal system. It avoided the implications which the usual words parliament or assembly might have furnished, and demonstrated that a body of men invested with powers equivalent to those exercised by such denominations, was not intended to be established. And it intimated the independence of the several states as being similar to the independence of the several provinces of each other, as well as to that of distinct kingdoms. The assemblage of men which framed the constitution, was called "A convention of deputies from the states of New-Hampshire, Massachusetts, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia." By what authority did the states appoint these deputies, if not in virtue of their respective sovereignties, existing in common with a "Congress of the United States?" If a Congress did not destroy the sovereignties of the states at that time, is it reasonable to suppose that the present "Congress of the United States" was constituted to destroy them? The deputies of the states in the convention, though representatives, could not have enacted a constitution, because it would have violated the limited powers which they received from state sovereignties; and in like manner, the deputies of the states now composing a Congress, though representatives, cannot exceed their powers. It is upon this principle, that Congress cannot alter the terms of the union.
The word "federal," also adopted into our political phraseology, is a national construction of the terms used in forming our system of government, comprising a definite expression of pub-lick opinion, that state sovereignties really exist. It implies a league between sovereign nations, has been so used by all classes of people from the commencement of our political existence down to this day, and is inapplicable to a nation consolidated under one sovereignty.
The meaning of the word "state" accords with that of the words associated with it. Used in reference to individuals, it comprises a great variety of circumstances, but in reference to the publick, it means a political community. Johnson thus expounds it, and adds, that it implies a republick, or a government not monarchical. What other word was more proper to describe the communities recognised by the declaration of independence, the union of 1777, and the union of 1787? Can the same word have been intended to convey an idea in the last, inconsistent with the idea it conveys in the two first instruments? Neither monarchy nor aristocracy would have fitted the case, and the word republick itself would have been exposed to uncertainties, with which the word state is not chargeable; because it has been applied to governments discordant with those which were established by our revolution. As no word more explicitly comprises the idea of a sovereign independent community; as it is used in conjunction with a declared sovereignty and independence; as it is retained by the union of 1787, and in all the operations of our governments; and as sovereign powers only could be reserved by states; there seems to be no sound argument by which it can be deprived of its intrinsick meaning, contrary to these positive constructions.
Against this concomitancy of interpretation, the consolidating school takes refuge under the word "people," and contends that it is susceptible of a meaning which inflicts upon many of its associates the character of nonsense, and deprives them of their right to assist in the construction of the constitution. Let us therefore endeavour to defend it against the aspersion of hostility to its best friends, and to save it from the crime of self-murder. In all ages metaphysicians have been so skilful in splitting principles, as to puzzle mankind in their search after truth; and morality itself would be lost by the minuteness of their dissections, except for the resistance of common sense, and the dictates of unsophisticated conscience. But the achievement of losing twenty-four sovereign states by the acuteness of construction, and getting rid of a people in each, by means of the word necessary to describe them, was reserved for the refined politicians of the present day; and is equivalent to the ingenuity of a fisherman, who should lose a whale by a definition of his name, which would destroy his qualities.
At the commencement of the revolutionary war, emergency dictated temporary expedients, and delayed the formal adoption of measures for constituting a people in each province. A Congress was therefore appointed by provincial legislatures, by one branch of these legislatures, or by districts in a province; but when disorder was exchanged for independence, it was appointed, and its powers were derived from the state governments, who were deemed sufficient to ratify the declaration of independence, because they represented a people circumscribed within each state territory. The same species of sanction was resorted to, for the ratification of both the union of 1777 and the union of 1787.The ratification of the first was to be made by "the legislatures of all the United States," and of the latter by "the conventions of nine states." The reference to their representatives in both cases, far from acknowledging that each state was without a people, acknowledged the contrary. The differences between the two modes of ratification, consisted in the distinction between the words "legislatures and conventions," and between the necessity for unanimity in one case, and the sufficiency of nine states in the other, to establish the proposed unions. In neither, could the object be effected by a majority of the people of the United States. Whatever may be the difference between the words legislatures and convention, in other cases, there is none in this, because both were representatives of the same people. Why did the first union require a unanimity of states? Because a people of each state had been created by the declaration of independence, invested with sovereignty, and therefore entitled to unite or not. Why were the ratifying nine states only to be united by the second? For the same reason; demonstrating, that as to the ratification of both, no distinction was made between legislatures and conventions; and that a concurrence or rejection of either, was considered as a sovereign act of a state people by their representatives. This principle is confirmed beyond all doubt, by the different modes in which men act when framing a constitution for a consolidated people, or creating a federal union between distinct states. In the first case, neither the consent of every individual, nor of every county, is necessary, because no individual possesses sovereign power, and because no county comprises a people politically independent. If there are thirteen counties in a state, and the deputies of four dissent from a constitution, it is yet obligatory upon all, because all are subject to the sovereign power of one people. The constitution of the United States was only obligatory upon the ratifying states, because each state comprised a sovereign people, and no people existed, invested with a sovereignty over the thirteen states. This consent, whether expressed by state legislatures or state conventions, was the consent of distinct sovereignties, and therefore the consent of nine states could not bind four dissenting states, or even one. A majority of a state legislature or convention dictates to a minority, because it exercises the sovereignty of an associated people over individuals. If state nations had not existed, they could not have exercised this authority over minorities, and therefore it is necessary to admit their existence in order to bestow validity upon the federal constitution.
The establishment of state governments, demonstrates the existence of state nations. No act can ascertain the existence of a sovereign and independent community more completely, than the creation of a government; nor any fact more completely prove that these communities were each constituted of a distinct people, than that of their having established different forms of government. If the art of construction shall acquire the power both of dispensing with the meaning of words, and also with the most conclusive current of facts by which these words have been interpreted, it will be able, like the dispensing power of kings, to subvert any principles, however necessary to secure human happiness, and to break every ligament for tying down power to its good behaviour.
SECTION II
The Journal of the Convention
Had the journal of the convention which framed the constitution of the United States, though obscure and incomplete, been published immediately after its ratification, it would have furnished lights towards a true construction, sufficiently clear to have prevented several trespasses upon its principles, and tendencies towards its subversion. Perhaps it may not be yet too late to lay before the publick the important evidence it furnishes.
A short history of the convention itself will enable us to understand its proceedings. A meeting of deputies from several states, in 1786, at Annapolis, recommended the appointment of commissioners to devise such further provisions, as shall appear to them necessary to render the constitution of the federal government, adequate to the exigencies of the union; and Congress, in 1787, recommended a convention of delegates to be appointed by the several states, as the most probable mean of establishing in these states a firm national government; and resolved that a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia for the sole and express purpose of revising the articles of the confederation, and reporting to Congress and the several legislatures, such alterations and provisions therein, as shall, when agreed to in Congress and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the union. In these proceedings the word convention is used to describe the deputies of a state, and the word constitution as equivalent to the word confederation.
The confederation of 1777 had declared that "no alteration should be made in its articles, unless such alteration should be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every state." Accordingly the constitution framed by the convention, was referred to Congress, by Congress to the state legislatures, and by a law of each state legislature to a state convention. Each ratification was returned to Congress, and it passed a resolution for putting the new constitution into operation. This process was pursued in conformity with the existing compact between the states, proving that the states were at this time considered as the only parties to their federal union. If the ratification of the new compact was made according to the injunctions of the old compact, it was the act of separate states required by that old compact, and not the act of a consolidated American nation; and it recognised the states as the parties to the constitution. Both unions were ratified in a federal mode; and no state suspected, that by exercising its independent right of assenting or rejecting, it was exercising an usurped authority, and moreover acknowledging its subordination to an aggregate American nation.
The ratification of amendments by the confederation and the constitution, was to be made by states. In both the word "states" must have been used in the same sense, because no American nation had appeared in the interval. Had these instruments, or either of them, been ratified by an American nation, they would not have been thereby made obligatory on the states; and should an American nation now attempt to amend the constitution, it would be a usurpation, because no such nation exists invested with a supremacy over the states; and it would violate the mode of amending the constitution, agreed upon by the parties to the union. Any species of per capita supremacy over all the states, would establish an oligarchy of a minority of states, and if such a supremacy does not exist as a consequence of national sovereignty, with a power of altering the constitution, a supremacy in construing it cannot find any basis upon which it may be erected. A per capita supremacy of construction would be equivalent to a per capita supremacy of amendment, and the same oligarchical power in a minority of states containing a majority of people, would be the consequence.
To avoid this identical misfortune, the convention required the same sanction for both unions, and for the amendments of both, namely, state ratifications. If a constructive supremacy can alter the intention of the constitution, then it would have been necessary to subject the constructions of Congress, as well as more direct alterations of the constitution, to the prescribed mode of ratification, or that mode would be soon rendered of little use by resorting to the constructive mode of amendment. By wholly neglecting to guard against a constructive supremacy, so evidently destructive of the federal supremacy by which the constitution was framed, ratified, and is to be amended, it seems certain that the convention did not entertain the least suspicion, that a constructive supremacy would be pretended to.
In the mode of amending the constitution of 1787, as well as in the necessity for the ratification of a state, to make it binding upon that state, we discern distinctly the opinion of the convention, that no American nation existed. Had it been made by an American nation, it would be a rare anomaly, that state nations should have the power to reject and alter it.
As a difference of meaning between "a confederation and a constitution" has been contended for, it ought not to be overlooked, that the deputies at Annapolis, applied the term constitution to the confederation of 1777.
It is very remarkable, that the Congress of 1787 introduced the word national into the resolve recommending a convention. It expressed an opinion "that a convention was the most probable mean of establishing in these states a firm national government." So far it unequivocally advocated the exchange of a federal for a national form of government; but an intimation so plain and positive, that the state governments ought to be destroyed, might not have been received with applause, and might have obstructed the removal of the defects of the existing federal union. The expedient of complexity was therefore practised to flatter the opinion of the states, and yet to supply a text for the advocates of a national government. After suggesting this form as one proposition, towards which the convention might direct its attention, Congress subjoined another, namely, "that the convention shall render the federal constitution adequate to the exigencies of government." Except for the restriction comprised in the word federal, this part of the resolve would have been as capacious as the expression "national government," because a limitation of power to the exigencies of government, of which the government itself must judge, is no limitation at all. But it adds, "and the preservation of the union." The recommendation of Congress comprises "a national government, a federal constitution, the preservation of the union, and a convention for the sole purpose of revising the articles of the confederation." These recommendations are at discord with each other, as a national and a federal form of government are not the same form. By planting the word national among them, as a scion to be watered up to a tree, a concert between individuals, unfriendly to the political existence of the states, appears at this period to have existed.
Let us see how these recommendations were received by a concert of states, and by the concert of individuals. Twelve states appointed deputies to assemble at Philadelphia, and each gave its deputies credentials specifying their powers. The idea that the recommendation of Congress was addressed to an American nation or people, no where appeared, and that of a national government was rejected by every state. The powers to these deputies were the following:
By New-Hampshire, "to discuss and decide upon the most effectual means to remedy the defects of the federal union."
Massachusetts, "in conformity with the resolution of Congress recommending a convention for the sole purpose of revising the articles of confederation, to render the federal constitution adequate to the preservation of the union."
Connecticut, "for the sole and express purpose of revising the articles of confederation, to render the federal constitution adequate to the exigencies of government and the preservation of the union."
New-York, in the same words.
New-Jersey, "for the purpose of taking into consideration the state of the union, as to trade and other important subjects, and of devising such other provisions, as shall appear to be necessary, to render the constitution of the federal government adequate to the exigencies thereof."
Pennsylvania, "to devise such alterations and further provisions, as may be necessary to render the federal constitution fully adequate to the exigencies of the union."
Delaware, in the same words, with a proviso, that each state shall have one vote in Congress.
Maryland, in the same words, without the proviso.
Virginia, in the same words. This state passed the first law for appointing delegates to the convention.
North-Carolina, "for the purpose of revising the federal constitution."
South-Carolina, "to devise such alterations as may be thought necessary, to render the federal constitution entirely adequate to the actual situation and future good government of the confederated states."
Georgia, "to devise such alterations as may render the federal constitution adequate to the exigencies of the union."
Thus the states unanimously rejected the recommendation of a national government, and by excluding the word national from all their credentials, demonstrated that they well understood the wide difference between a federal and a national union. The distinction was enforced in Massachusetts and Connecticut by the words "sole purpose." The reference of sole, is to the word national, used by Congress, and in all the credentials the word federal is used also in opposition to the word national. There existed no other object but the suggestion of a national government, for the restrictions in the credentials of the states to operate upon; and their unanimity, without consulting each other, is a complete proof that they all comprehended the difference between a federal and a national form of government. The word constitution is also uniformly considered by the states as equivalent to the word confederation. Having seen what was the unanimous opinion of the states, let us next inquire how far it was regarded by a concert between individuals.
SECTION III
The Subject Continued
On the 29th of May, 1787, the convention was organized, and Mr. Randolph, of Virginia, offered sundry resolutions resuming the word national, though it had been rejected by all the states, and proposing "that a national legislature shall have the right to legislate in all cases in which the harmony of the United States may be interrupted by the exercise of individual legislation, and to negative all laws passed by the several states, contravening, in the opinion of the national legislature, the articles of the union, or any treaty under the union." The resolutions also proposed "a national executive and a national judiciary; that the executive and a convenient number of the national judiciary ought to compose a council of revision, with authority to examine every act of the national legislature, before it shall operate, and every act of a particular legislature, before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by ____ of the members of each branch."
It is worthy of particular observation, that in this project, the constructive supremacy now claimed for the federal government "over the articles of the union," was proposed to be given to a national government; because the actual consideration of this identical power, and its absence from the constitution as it was finally adopted, seems to be irresistible evidence that it does not exist. Throughout Mr. Randolph's resolutions, fifteen in number, the word national is adopted, and the word Congress rejected, except in reference to the Congress under the confederation of 1777, proving that the word was applicable to a federal union, but not to a national government.
The proposed national form of government was ultimately renounced or rejected, but the negative power over state laws with which it was invested, was much less objectionable than that now constructively contended for on behalf of the federal government. The president was to be one of a council of revision, and the influence of the states in his election might have afforded to them some feeble security, a little better than could be expected from a council of revision composed of a few federal judges. Both the legislative branches which were to pronounce the first veto upon state laws, were also to be exposed to popular influence, and might feel all the responsibility of which a body of men are susceptible in extending its own power by its own vote. A judicial veto, as now contended for, is exposed to no responsibility whatever. The council of revision, with the president at its head, were only to be controlled by more than a majority of the national legislature. This was evidently a better security for the small states, than a power in a majority of Congress to abrogate state laws. But all these alleviations of the power in a national form of government to negative state laws, were unsuccessful, because the principle itself, however modified, was inconsistent with the federal form adopted. It can never be conceived that the principle of a negative over state laws, audibly proposed and rejected, had silently crept into the constitution. This was quite consistent with the national form of government proposed, but quite inconsistent with the federal form adopted.
The project for a national form of government was deduced from the doctrine, as we shall hereafter see, that the declaration of independence had committed the gross blunder of making the states dependent corporations; that it was in fact a declaration of dependence. When this doctrine failed in the convention, the national negative over state laws died with it. Revived by construction, it assumes a far more formidable and consolidating aspect than as it was originally offered, because the usurped negative over state laws, by a majority of a court or of Congress, would not have its malignity to the states alleviated by the checks to which the project itself resorted. Without these checks, even the advocates for a national form of government thought such a negative intolerable. The project contemplated a mixed legislative, executive, and judicial supremacy over state laws, so that one department of this sovereignty, like that of the English, might check the other, in construing "the articles of the union," and did not venture even to propose, that a government should be established, in which a single court was to be invested with a supreme power over these articles, or the constitution. The idea seems to be a political monster never seen in fable or in fact.
On the same day, Mr. C. Pinckney offered a draft for a federal "constitution." It recognised the people of the several states; proposed "that the style of the government should be the United States of America; that the legislative power should be vested in a Congress, to be chosen by the people of the several states; enumerated limited powers to be exercised by this Congress; proposed a president of the United States; and that the legislature of the United States should have power to revise the laws of the several states that may be supposed to infringe the powers exclusively delegated to Congress, and to negative and annul such as do."
This project for a form of government being somewhat at enmity with the resolutions, hostilities between them forthwith commenced, and the resolutions obtained successive victories over a nominal rival, during the greater portion of the time expended by the convention. The journal, however, is too obscure to supply us with a history of a controversy which related only to the form of a national government mutually advocated. We do not find in the constitution the negative over state laws proposed both in the resolutions and the draft. As it was distinctly proposed by both, it must have been maturely considered and doubly rejected. The reasons of these rejections were, that though a supreme power of construction, was consistent with, and might have been intrusted to a government throughout responsible to one people or nation, it was inconsistent with and could not therefore be intrusted to a federal form of government, or any of its departments. And hence when the federal form of government prevailed over the national form, the alteration of the federal articles was exclusively limited to the modes prescribed, and not extended to a supreme power of construction in the federal government or any of its departments. The constitution was not intended to be an alembick, fraught with heterogeneous principles, to condense the tortuosities of construction, and distil from taciturnity a supreme power of construction, and consequently a negative upon state legislation.
May 30, Mr. Randolph, seconded by Mr. G. Morris, moved "that an union of states merely federal, will not accomplish the objects proposed by the articles of confederation, namely, common defence, security of liberty, and general welfare;" and by Mr. Butler, seconded by Mr. Randolph, "that a national government ought to be established, consisting of a supreme legislative, judiciary, and executive." In opposition to this resolution it was moved, "that in order to carry into execution the design of the states informing this convention, and to accomplish the objects proposed by the confederation, a more effective government, consisting of a legislative, judiciary, and executive, ought to be established," excluding the words national and supreme. But it was resolved "that a national government ought to be established, consisting of a supreme legislative, judiciary, and executive." The collision between these resolutions, and consequently the debate, was produced by the words national and supreme. Massachusetts, Pennsylvania, Delaware. Virginia, North-Carolina, and South-Carolina, voted for this resolution, Connecticut against it, and New-York was divided; so that a convention of only eight states decided by a majority of six, that the states should be annihilated. It was late in the session before twelve states assembled; but whether an accession of votes, or the repentance usually attached to precipitancy, produced the ultimate discomfiture of the resolution to establish a supreme national government, can only be conjectured by computing the consequences likely to result from an excessive zeal for this consolidating policy, and from a refrigeration inculcated by an accession of votes or a firm opposition. However this may be, it is plain that some members of the convention came with preparatory impressions that the distinction of states ought to be destroyed, and availed themselves of a thin convention to obtain a footing for the opinion. On the first day of the session, two projects are offered, both founded upon the principle of a supreme national government, and on the second, the deputies of six states resolve to annihilate thirteen. The hastiness of this movement indicates a design to obtain a victory by surprise, ascertains the existence of a concert unfaithful to credentials, and displays a rooted hostility to the state governments. A blow so unexpected and violent was endeavoured to be suspended by succinctly urging in the adverse resolution, that it was the duty of the convention "to carry into execution the design of the states," but not a single day is allowed for consideration, and the treachery of sacrificing duty to prepossession is instantly perpetrated. The states and the duty are entombed together, by a resolution to establish a supreme national government.
At the threshold of the business, we clearly discern that the convention was apprized of the meaning of words. One resolution asserts that a government merely federal would not answer, and that a supreme national government ought to be established. The rival resolution rejects the words national and supreme, as incompatible with a federal union. One avails itself of the intimation from Congress in favour of a national government, and rejects the intimations of the same Congress in favour of a federal government; the other prefers the latter intimations, because they were legitimated by the states, and rejects the former, because it was rejected by the states.These adverse opinions were evidently dictated, one by the political opinion already invented, of a consolidated nation; the other, by the actual existence of United States. The contrast between the two preliminary resolutions in a very important view, depends on a single word. One proposed "a supreme legislative, judiciary, and executive," the other "a legislative, executive, and judiciary," excluding the word supreme. This word was adopted as suitable for the proposed national government, and rejected, as inconsistent with the federal form of government, to which the states had confined their deputies. The adoption and rejection conspire to furnish us with a definition of this formidable word, both by the national and federal parties in the convention. The sense in which both of these parties understood it, caused its exclusion from the constitution, as inapplicable to a federal government. The advocates for a national government proposed to invest that form of government with a supreme power to "construe the articles of the union." The advocates for a federal government originally proposed to withhold supremacy from the legislative, judiciary, and executive, and though they at first failed, finally succeeded. As applied by the successful federal party to the supreme court, it evidently refers to inferior federal courts. Instead of a judiciary, invested with a supreme power to construe the articles of the union and to negative state laws, a limited judiciary is found in the constitution. To reject a supreme legislature and executive, and yet to retain a supreme judiciary, was never even suggested by either the national or federal party in the convention. As the project for a national form of government, bestowed the supremacy of construing the articles of the union and negativing state laws, upon all its departments, by plain words; and the project in favour of a federal form intirely rejected this supremacy, it is doing the utmost violence to probability to imagine, that the constitution by inference without plain words, and without its having been proposed in the convention, should have both deprived the federal legislature and executive of a power to settle the construction of our federal articles and to negative state laws, and also have bestowed this enormous power exclusively on one federal court.
The word supreme is used twice in the constitution, once in reference to the superiority of the highest federal court over the inferior federal courts, and again in declaring "that the constitution, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby." Did it mean to create two supremacies, one in the court, and another in the constitution? Are they colateral, or is one superior to the other? Is the court supreme over the constitution, or the constitution supreme over the court? Are "the judges in every state" to obey the articles of the union, or the construction of these articles by the supreme federal court?
The project for a national government, gave a supremacy over the articles of the constitution it advocated, to the legislative, judiciary, and executive, and did not propose that the constitution should be supreme over these departments, because it would have involved a contradiction. As they were to have had a supreme power of construing its articles, these articles could not possess a supreme power over their constructions. But a federal system required that the articles of union should be invested with supremacy, over the instruments created to obey and execute them. Hence they are declared to be so in reference to all these instruments, without excepting the federal court. And hence the right of altering these articles is retained by these parties. In all treaties, the right of construction must be attached to the right of alteration, or the latter right would be destroyed. No right of alteration was proposed to be reserved to the states by the project for a national government, nor any supremacy of the constitution recognised; and in lieu of such articles it was proposed to invest the government itself with a supremacy of construction; because, if a national government resulted from a consolidated people, collateral state and federal departments would not have existed mutually to enforce the supremacy of the constitution; and a national government must necessarily have possessed an absolute power of construing, under the sole control of the consolidated people, by election, in whom the right of alteration resided. But the right of alteration being placed in the states, because they made it, and not in a consolidated people, because such a people did not make it; the right of construction is attached to the altering power, and not given to its own agents under the fictions assumed to sustain a national government, namely, that a consolidated people existed; that this people possessed a right to make and alter a constitution for the union of states; and that a national government established by their authority, ought not therefore to be controlled by states in the construction of its articles.
The supremacy of the constitution is an admonition to all departments, both state and federal, that they were bound to obey the restrictions it imposes. In relation to the federal government, it literally declares that its laws must conform to its exclusive and concurrent powers; and in relation to the state governments, it implies, that theirs must also conform to their exclusive and concurrent powers. It neither enlarges nor abridges the powers delegated or reserved. And it is enforced, not by an oath to be faithful to the supreme constructions of the federal departments, but by an oath to be faithful to the supremacy of the constitution.
SECTION IV
The Subject Continued
I shall select a few other extracts from the journal of the convention, proving that the words "national and supreme," constituted the great subject of debate; that they were well considered by the respective advocates for a national or a federal form of government; that both were annexed to the departments of a national form, and neither to the departments of the federal form; and that their insertion in the constitution can only be effected by reviving the fictions upon the strength of which they were proposed.
The battle between a national and federal form of government began now to wax warm. June 6th, Mr. Pinckney gave notice "that to-morrow he should move for the reconsideration "of that clause in the resolution adopted by the committee, which vests a negative in the national legislature on the laws of the several states. Friday assigned to reconsider."
"June 8th, Mr. Pinckney, seconded by Mr. Madison, moved to strike out the following words in the sixth resolution: negative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of the union, or any treaties subsisting under the authority of the union," and to insert the following words in their place, namely, "to negative all laws which to them shall appear improper." This motion was rejected, only Massachusetts, Pennsylvania, and Virginia, voting in the affirmative. It comprised the precise negative over state laws now claimed by the supreme court. This trivial advantage seems to have been the first gained by the party adverse to a national government; but they speedily lost it.
June 13. It was moved by Mr. Randolph, seconded by Mr. Madison, to adopt the following resolution respecting the national judiciary, namely, "that the jurisdiction of the national judiciary shall extend to cases which respect the collection of "the national revenue, impeachments of any national officers and questions which involve the national peace and harmony." It passed in the affirmative. These resolutions ought to be kept in mind, until we come to the consideration of the Federalist, as the origin of a construction of the constitution by Mr. Madison, upon which the pretension of the federal court to a supremacy over the laws of states and the articles of the union is founded. The jurisdiction of the federal judiciary is extended by the constitution to cases of revenue, but not to cases of impeachment, or to questions which involve the national peace and harmony. It is very remarkable that the very jurisdiction now claimed was actually proposed, considered, and rejected, together with the jurisdiction proposed in cases of impeachment as appears from the absence of both in the specifick statement of federal jurisdiction.
June 15, Mr. Patterson offered sundry federal resolutions among them "that a federal judiciary be established," which with all the resolutions previously agreed to, were referred to a committee of the whole house.
June 18, it was moved by Mr. Dickinson, and resolved "that the articles of confederation ought to be revised and amended "so as to render the government of the United States, adequate to the exigencies, the preservation and the prosperity of the union." This was the first resolution in favour of a federal government in opposition to a national government, but it was speedily revoked.
On the same day, Colonel Hamilton read a plan of government, containing, among others, the following proposals: "The supreme legislative power of the United States of America to be vested in two distinct bodies of men, the one to be called the assembly, and the other the senate," excluding the word Congress, "with power to pass all laws whatsoever, subject to the negative hereafter mentioned. The senate to consist of persons elected to serve during good behaviour. The supreme executive authority of the United States to be vested in a governor, to be elected to serve during good behaviour. To have a negative upon all laws about to be passed, and the execution of all laws passed. To have the intire direction of war when authorized or begun. To have the power of pardoning all offences, except treason, which he shall not pardon without the approbation of the senate. The senate to have the sole power of declaring war. All laws of the particular states, contrary to the constitution or laws of the United States, to be utterly void. And the better to prevent such laws being passed, the governor or president of each state shall be appointed by the general government, and shall have a negative upon the laws about to be passed in the state of which he is governor or president."
It is needless to waste time in proving, that this project comprised a national government, nearly conforming to that of England; but it furnishes other remarks particularly applicable to our subject. Had it succeeded, would the proposed general governor of the United States, have been invested by "the intire direction of war," with powers to raise supplies, impress men, send militia out of the states, and make roads and canals. If any of the doctrines "that a power includes whatever may be necessary or convenient in its execution; that great power implies small power; or that power has a right to use all auxiliaries it may judge
proper for advancing its designs, and to destroy all obstructions in its way," are true, then a power of intirely directing war, would have comprised many more powers than those hitherto supposed to have been tacitly annexed to the limited powers delegated by the constitution. But had this project been adopted, its prototype would have furnished many proofs that none of these doctrines are true, and might have defeated the usurpations of this great and powerful governor-general, upon the pretence that they were so. The political department, called king, in England, is invested with many very great powers, and among them, those both of declaring and directing war; and although many English kings have attempted, under cover of the appurtenances added by these doctrines to power, to extend their legitimate powers, such attempts, after producing resistance and sanguinary conflicts, have failed. One king may have lost his head for raising money unconstitutionally to build ships of war, and no king pretended he could appropriate the publick treasure to roads and canals, as deeming them appurtenant powers to his rights of declaring and directing war. These would have been formidable precedents towards preventing Colonel Hamilton's great governor-general from absorbing the powers of less powerful departments, and it seems to me that they are equally, and even more forcibly, applicable to our federal form of government. The integrity of our political departments is undoubtedly as necessary to preserve that form, as the integrity of the English departments can be to preserve a limited monarchy. Our specifications and restrictions of powers are more literal and intelligible than the English; and liberty at least, as essentially depends here, as it does in England, upon a resistance by one department against the encroachments of another.
By Colonel Hamilton's project, the states were fairly and openly to be restored to the rank of provinces, and to be made as dependent upon a supreme national government, as they had been upon a supreme British government.Their governors were to be appointed by the national government, and invested with a negative upon all state laws; and all their laws, contrary to the laws of the supreme government, were to be void. The frankness of this undisguised proposition was honourable, and illustrates the character of an attempt to obtain a power for the federal government, substantially the same, not by plain and candid language, like Colonel Hamilton's, but by equivocal and abstruse inferences from language as plain, used with the intention of excluding his plan of government entirely. A power in the supreme federal court to declare all state laws and judgments void, which that court may deem contrary to the articles of the union, or to the laws of Congress; and also to establish every power, which Congress may infer from those delegated; comes fully up to the essential principle of Colonel Hamilton's plan; except that the court will both virtually, and directly, control the legislative, executive, and judicial state departments, by a supremacy exactly the same with that exercised by the British king and his council over the same provincial departments.
June 19. The day after Colonel Hamilton's plan was promulgated, Mr. Dickinson's resolution for a federal form of government was taken up and rejected."For it, Connecticut, New-York, New-Jersey, Delaware. Against it, Massachusetts, Pennsylvania, Virginia, North-Carolina, South-Carolina, Georgia. Maryland divided." Even yet, only eleven states had appeared, and five refused their concurrence to a national government, which now began to totter.
June 23. The deputies of New-Hampshire first appeared, and New-York never afterwards seems to have given a vote in the convention.
June 25. "It was proposed and seconded to erase the word national, and to substitute the words United States in the fourth resolution, which passed in the affirmative." Thus we see an opinion expressed by the convention, that the phrase "United States" did not mean "a consolidated American people or nation," and all the inferences in favour of a national government from the style "We, the people of the United States," are overthrown, as that style was adopted, not to establish the idea of an American people, but to defeat it.
July 23. "The proceedings of the convention for the establishment of a national government, except what respects the supreme executive, were referred to a committee, and the next day the propositions of Mr. C. Pinckney, and of Mr. Patterson, were referred to the same committee."
August 18. It was proposed to empower the legislature of the United States, (the word national is now dropt,) "to grant charters of incorporation in cases where the publick good may require them, and the authority of a single state may be incompetent; to establish a university; to encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries; to establish seminaries for the promotion of literature and the arts and sciences; to grant charters of incorporation; to establish institutions, rewards, and immunities, for the promotion of agriculture, commerce, and manufactures; and to regulate stages on the post-roads," which, with other propositions, were referred to the committee of July 23d.
August 27. It was moved and negatived, that "in all other cases before mentioned, the judicial power shall be exercised in such manner as the legislature may direct."
September 14. "Question. To grant letters of incorporation for canals, et cetera; negatived. To establish a university; negatived."
The propositions of August the 18th, seem to have been the last considerable struggle for a national government; but the residue of the journal is so concise and imperfect, that their rejection is only discoverable by a reference to the constitution, in which not a single one of them is to be found.
Their rejection was a necessary consequence of substituting a federal for the national government zealously contended for, from the 29th of May to the 14th of September. It was obvious that powers to establish corporations, prescribe the mode of education, patronise local improvements, and bestow rewards and immunities for the promotion of agriculture, commerce, and manufactures, would certainly swallow up a federal, and introduce a national government. When, therefore, a federal system obtained the preference, it would have been inconsistent with the high degree of intelligence possessed by the members of the convention, to have permitted their determination to be defeated by these indirect attempts. This intelligence was assailed by the soothing but insidious restriction, that the powers to incorporate, grant exclusive privileges, and exercise every species of patronage, were only to be exercised "in cases where the publick good may require it." The same soothing but insidious argument is now addressed to the intelligence of the publick, to justify an exercise of the very powers which the intelligence of the convention withheld from a federal government; and whether the promise of publick good, has been fallacious or fulfilled by the monopolies of currency, of manufactures, and the extension of federal patronage, the publick can decide.Yet, whatever may have been their temporary effect, it is obvious that the enlightened framers of the constitution considered the condition of publick good, as an enlargement and not a restriction of power; and that it would defeat all the limitations of the constitution, by which a federal government could be formed or sustained. It was a pretext which would fit every encroachment or usurpation; and no powers could be more indefinite and sovereign than those of granting exclusive privileges, bestowing rewards and immunities upon the three comprehensive interests of society, agriculture, commerce, and manufactures, and patronising capitalists, paupers, knowledge, and ignorance. Such a nest of powers, though exhibited as sleeping in the bed of publick good, bore so strong a resemblance to the old bed of justice in France, which was the repository of evil as well as good, that they were all rejected. It was evident that they would be sufficient to re-hatch the strangled national form of government; and the convention having finally preferred the federal form, thought that no good to the publick could result from such powers, which would recompense it for the evils it would sustain from the subversion of that form. The convention saw, that if Congress could exercise such powers, for the publick good, it might, upon the same ground, usurp any powers whatsoever, and in rejecting the propositions, decided between investing that body with a general or a limited federal authority. Hence the power to regulate commerce was not intended to revive the rejected proposition to empower Congress to bestow rewards upon agriculture, commerce, and manufactures. Hence the rejected proposition, to empower Congress to direct the exercise of the judicial power, cannot enable it to extend the jurisdiction of the supreme court. And for the same reason, a power to make war, cannot revive the rejected power to make canals, or to perform any of those et ceteras, whatever they were, referred to by the journal. If these sweeping and indefinite sovereign powers, or all powers thought by those who exercise them to be necessary for the publick good, with an et cetera besides, though proposed and rejected, do yet pass to Congress under the constitution; then the battle between the national and federal parties in the convention, terminated quite contrary to the usual course of things; the vanquished were victorious, and the victorious were vanquished; and if they were now alive, one party would be as much surprised to discover, that it had carried the consolidating propositions which it had lost, as the other, that it had lost the federal principles which it carried. The spectacle of the slain rising up alive, and the living falling down dead, could not have been expected by either.
No powers can be more sovereign and arbitrary, than those of deciding and doing whatever may administer to the public good, and of pilfering private property by privileges, partialities, premiums, monopolies, rewards, and immunities; nor more capable of reaching any end. Had the rejection of such powers been unnecessary for the security of a federal form of government, the convention might have still been justifiable for the act, as deeming them tyrannical, fraudulent, and oppressive. Did the convention reject them in fact, and re-plant them in masquerade? I discern no evidence in the journal to excite such a suspicion. Colonel Hamilton, far from discerning the supposed ingenuity of sinking a national form of government in a lake of obscurity, to be fished up by a long line of constructions, when it might be safer to avow the intention, seems to have quitted the convention in despair, soon after the failure of his project. Mr. Randolph, undoubtedly influenced by having lost his plan also, refused to sign the constitution. And though Mr. Madison and Colonel Hamilton both signed it, and Mr. Randolph supported it in the Virginia convention, they must have been influenced by the patriotick motive of effecting some good, though they could not accomplish all which they attempted. These are strong reasons to prove, that the gentlemen who had contended for a supreme national government, and of whose propositions for that purpose, not one was adopted by the constitution, did not imagine they had succeeded.
The journal of the convention states "that the constitution was transmitted to Congress, and by it to the state legislatures; that these legislatures, by separate laws, appointed state conventions for the consideration of the constitution; and that it was ratified by the delegates of the people of each state." Every step in its progress, from beginning to end, defines it to be a federal and not a national act. The deputies who framed it were federal and not national deputies. They transmitted it to Congress, because the assent of that body was required by the federal union of 1777. It was transmitted by Congress to the state legislatures, because the federal principle required it. And it was ratified by each state, because each state was sovereign and independent.
"The conventions of each state, reported to Congress their ratifications. That of South-Carolina subjoined to theirs a declaration, that no section or paragraph of the constitution warrants a construction, that the states do not retain every power, not expressly relinquished by them, and vested in the general government of the union"; and the conventions of other states subjoined declarations of the same import, or still more explicit, to their ratifications. The various efforts in the convention to invest a federal government, or some department thereof, with a negative upon state laws, though generally unknown, were known to its members. It was natural that the obstinacy with which they had been persevered in, and the vehement desire to establish a national government, unequivocally disclosed, should inspire a jealousy, lest the same design should be attempted by constructions. The great talents and weight of character by which it was advocated, probably increased this apprehension, and suggested the necessity for these declarations to those members who knew the fact, and could estimate the danger. They were a contemporaneous federal construction of the constitution, intended to counteract and defeat any future construction, by which the rejected national government might be reinstated. A negative in the government of the union, or in some of its departments, upon state legislation, had been strenuously urged and resisted in the convention, on the same ground; by one party, because it would establish a national government; by the other, because it would destroy a federal government.
The convention of New-York prophetically declared "that the jurisdiction of the supreme court of the United States, or of any other court to be instituted by Congress, is not in any case to be increased, enlarged, or extended, by any fiction, collusion, or mere suggestion."
These contemporary constructions of the states, produced the amendment, made by the parties to the union, reserving to the states or to the people, the powers not delegated to the United States. No negative upon state laws was delegated to the federal government, or any department thereof, and the absence of such a power had been enforced by its rejection.The right of state legislation without being subject to this negative, not being prohibited to the states, is among the rights reserved. It is in vain to say, that the constructive negative contended for, only extends to such state laws as are contrary to the articles of the constitution, because that very modification of a negative power in the federal government was proposed and rejected. It would have as effectually defeated a federal and established a national government, as a negative in any other form over state laws. The mutual checks established for the security of a federal government, between the state and federal departments, are positively established, by the exclusion of a supreme negative power in either over the other, for the purpose of inspiring that mutual moderation, which is an end of a division of power, and one of the securities for a free government. And the guardianship of this desirable moderation, is deposited in three-fourths of the states. Co-ordinate and independent powers alone, can beget mutual moderation; an unchecked supremacy uniformly inspires arrogance, and causes oppression. To defeat or weaken federal checks by a substitution of constructive national checks, is therefore not less hostile to the freedom of the states, than to the sufficiency of facts and words for establishing a federal form of government.
SECTION V
The Subject Concluded
Let us suspend the consideration of contemporaneous testimony, and concisely review the ground we have passed over. Suppose the proceedings of the convention had been publick, and that all the panoply for the establishment of a national government, had been displayed in the newspapers. Suppose the states to have been alarmed by the exhibition, and to have remonstrated against the project. That this would have been the case, is demonstrated by the credentials to their deputies, and the opinions annexed to their ratifications. Suppose the states, after the publication of the constitution, to have retained fears inspired by the attempts to establish a national government, and that a great number of eminent men had assured them that these fears were groundless. And suppose that the states, still unsatisfied, had, for conclusive security, insisted upon the amendments which they added to the constitution; particularly that reserving all their rights not delegated. Had the proposals for a national government, and for negatives over state laws and judgments, been published when they were made, there is no doubt but that they would have provoked the irresistible remonstrances of every state. Now imagine, that in consequence of state oppositions, these projects had been abandoned exactly as they were, in consequence of the opposition by state deputies; that the federal constitution had been substituted for them; and that the states had, under the impression which the projects had made, subjoined to it the amendments. Could the states have been honestly told, after all this process, that the apparent rejection of a national government and its supreme negatives, was only a delusion to appease their fears, and a bait to allure them within the trap, hypocritically abandoned?
Now this very case is that under consideration. The proposals for a national government and its negative over the state acts, were really made. They were opposed by the state deputies, who had a knowledge of them. They were rejected. A different form of government was promulgated. It contained no such negative. The states expounded its meaning to be federal, by a positive reservation of rights not delegated. And now they are told that the devil, thus repeatedly exorcised, still remains in the church.
The notoriety of this deception is fully illustrated by recollecting, that the states, by their deputies (and they could only do it by deputies), had made themselves sovereign and independent; that they had already united in virtue of that character; that in virtue of that character, they had appointed deputies to frame a more perfect union; that by these deputies they voted as states; that they ratified the constitution as states; that they immediately amended it as states; that they reserved the supreme power of altering it as states; that they vote in the senate as states; and that they are represented as states in the other federal legislative branch. Further, the declaration of independence was never repealed. Its annual commemorations demonstrated, and continue to demonstrate, a publick opinion, that it still lives; and the constitution did not confer sovereignty and independence upon the federal government, as the declaration of independence had done upon the states. On the contrary, by the constitution, the states may take away all the powers of the federal government, whilst that government is prohibited from taking away a single power reserved to the states. Under all these circumstances, is it possible that any one state of the union, in ratifying the constitution, which literally conformed to previous solemn acts, to previous words and phrases, and to the settled rights of the states, entertained the most distant idea, that it was destroying itself; betraying its people; establishing a national government; and creating a supreme negative over all its acts, political and civil, or political only, with which the federal government, or one of its departments, was invested by implication.
Sovereignty is the highest degree of political power, and the establishment of a form of government, the highest proof which can be given of its existence. The states could not have reserved any rights by the articles of their union, if they had not been sovereign, because they could have no rights, unless they flowed from that source. In the creation of the federal government, the states exercised the highest act of sovereignty, and they may, if they please, repeat the proof of their sovereignty, by its annihilation. But the union possesses no innate sovereignty, like the states; it was not self-constituted; it is conventional, and of course subordinate to the sovereignties by which it was formed. Could the states have imagined, when they entered into a union, and retained the power of diminishing, extending, or destroying the powers of the federal government, that they who "created and could destroy," might have this maxim turned upon themselves, by their own creature; and that this misapplication of words was able both to deprive them of sovereignty, and bestow it upon a union subordinate to their will, even for existence. I have no idea of a sovereignty constituted upon better ground than that of each state, nor of one which can be pretended to on worse, than that claimed for the federal government, or some portion of it. Conquest or force would give a much better title to sovereignty, than a limited deputation or delegation of authority. The deputations by sovereignties, far from being considered as killing the sovereignties from which they have derived limited powers, are evidences of their existence; and leagues between states demonstrate their vitality. The sovereignties which imposed the limitations upon the federal government, far from supposing that they perished by the exercise of a part of their faculties, were vindicated, by reserving powers in which their deputy, the federal government, could not participate; and the usual right of sovereigns to alter or revoke its commissions.
If, under all these circumstances, the states could never have conceived that they had, by their union, relinquished their sovereignties; created a supreme negative power over their laws; or established a national government; their opinion ought to be the rule for the construction of the constitution. And if the constitution has, by implication, effected all these ends without their knowledge or consent, it is certainly the most recondite speculation that was ever formed, and the states of all cullies, the most excusable.
SECTION VI
Yates's Notes
It is obvious to the reader, that my chief object is to exhibit facts, generally unknown, for the purpose of enabling the state republicks, the federal republick, and the people, to compare the federal division of power, with its concentration in one supreme national government; and that though I subjoin to the history, observations in relation to the preference of one system, it is with a deep conviction of my inability to do justice to this part of the subject, and a sincere reference to the tribunal of publick opinion.
In pursuance of this historical design, I shall now advert to Judge Yates's notes of the secret debates, preceded by Mr. Luther Martin's statement of explanatory facts; one, chief justice of the state of New-York; the other, an eminent lawyer of the state of Maryland. Both these gentlemen appear to have been as thoroughly convinced of the superiority of a federal, as other gentlemen were of the superiority of a monarchical or national, form of government; and both left the convention under a conviction that the latter would be established. They unfortunately abandoned their opposition to the national form, at the juncture when the New-Hampshire delegates arrived, and before the federal system prevailed; carrying with them a belief, that the former would maintain its ground, and that whatever gloss it might receive to conciliate or deceive publick opinion, it would yet contain hidden seeds of consolidation. Subsequently to their departure, the plan of government was changed from a national to a federal form. Whether this was effected by the accession of New-Hampshire, or by the refusal of the states, hitherto in the minority, to accede to a national form of government; or whether the change was radical and sincere, or only superficial and delusive; these gentlemen were prevented from discerning, by their absence. They therefore viewed the constitution under the prepossession inspired by the eagerness for a national government, displayed in the convention before they left it; and were influenced in their construction by the suspicion, that the majority, whose success they had deplored, would endeavour to conceal in a labyrinth, the design which could not succeed if distinctly disclosed. Under this prepossession, they construed the constitution, and their constructions must of course be erroneous. But the same candour which estimates the prepossessions of these two gentlemen, will also estimate those of Mr. Madison and Mr. Hamilton. If the constructions of the two first were liable to be influenced by their fears, those of the two last were as liable to be influenced by their wishes; and a prepossession in favour of a national government was an authority, at least as suspicious for ascertaining the meaning of the constitution, as a prepossession against it. On this ground, I shall reject all the opinions of Mr. Martin and Mr.Yates, asserting that the constitution would be construed with a view to make it the matrix of a national government; and on the same ground, those of Mr. Madison and Mr. Hamilton, asserting that it was really intended for this matrix, ought also to be rejected.
But there is a great difference between the facts asserted by all these honourable men, and their speculative opinions. Prejudice is less able to conceal plain truth, than to invent incorrect constructions. Facts may be sustained or contested by other facts; but speculative opinions can avail themselves of all the defects of language. I shall therefore only select the facts asserted by Mr. Martin and Mr.Yates, which are sustained by the journal of the convention, or by other evidence.
Secret proceedings of the convention, page 12. Mr. Martin. "So extremely solicitous were they, that their proceedings should not transpire, that the members were prohibited even from taking copies of resolutions, on which the convention were deliberating, or extracts of any kind from the journals, without formally moving for, and obtaining permission, by a vote of the convention, for that purpose."
The fact of this jealous secrecy is ascertained by the journal, and the perseverance in it for years. Even now, the veil is imperfectly removed; the journal has not come to the general knowledge of the publick, and it appears in a mutilated state. It stops or is impenetrably obscure, precisely at the period when the projected plan for a national form of government was supplanted by the federal system; and a suppression of the important steps by which this radical change was effected, must have taken place in the convention, or subsequently. Thus the vindicators of a federal construction of the constitution are deprived of a great mass of light, and the consolidating school have gotten rid of a great mass of detection. Secrecy is intended for delusion, and delusion is fraud. If it was dictated by an apprehension, that a knowledge of the propositions and debates, would have alarmed the settled preference of the states and of the publick, for a federal form of government, it amounts to an acknowledgement that these propositions and debates were hostile to that form and to the publick opinion. If, by an apprehension that a publication of the journal and debates, would produce a construction hostile to the rejected national form of government, it is an acknowledgment that constructions in favour of that form, are hostile to the constitution adopted.To avoid these consequences, and no others that I can discern, it was necessary to keep the people in the dark, and this stratagem to obtain a victory over their most sacred right in the ambuscade mode, can only be accounted for upon a supposition, that a real hostility of opinion existed between the publick and a party of politicians behind the curtain, which rendered it necessary that the people should be worked as puppets, first by the wire of concealment, and secondly by the wire of construction, into the catastrophe of a consolidated government, either national or monarchical.
Page 13. L. Martin. "The resolutions of the members from Virginia were discussed with great coolness in a committee of the whole house, and hopes were formed that the farther we proceeded in their examination, the better the house might be satisfied of the impropriety of adopting them, and that they would be finally rejected. Whilst they were under discussion, a number of the members who disapproved them, were preparing another system, such as they thought more conducive to the happiness and welfare of the states. The committee, by a small majority, agreed to a report, declaring, among other things, that a national government ought to be established, consisting of a supreme legislative, judiciary, and executive. That the national legislature ought to be empowered to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation, and to negative all laws passed by the several states, contravening, in the opinion of the legislature of the United States, the articles of the union. And that the jurisdiction of the national judiciary, shall extend to questions which involve the national peace and harmony. There were three parties in the convention. One, whose object it was to abolish and annihilate all state governments, and to bring forward one general government over this extensive continent, of a monarchical nature, under certain restrictions and limitations. The second party was not for the abolition of the state governments, nor for the introduction of a monarchical government under any form; but they wished to establish such a system, as would give their own states undue power. A third party was what I considered truly federal and republican, which were unwilling to act contrary to the purpose for which they were elected. The first party, conscious that the people of America would reject their system, if proposed, joined the second, well knowing that by departing from a federal system, they paved the way for their favourite object, the destruction of the state governments, and the introduction of monarchy. Parts of the proposed system were warmly and zealously opposed."
I premise, that in using the words monarchist, suprematist, consolidator, republican, federalist, or any equivalent expressions, neither praise nor imputation is designed to be insinuated in relation to any person or party; and that they are only employed to explain political opinions, and to display the force of extracts. My wish is to exhibit a fair history of political tenets, to assist the publick in deciding upon their respective merits; for with great satisfaction I declare that I have met with many persons, belonging to all these political sects, of unsullied integrity and great talents, with whom I wished to reciprocate the most cordial friendship; nor do I claim any right of private judgment for myself, which I am not perfectly willing should be enjoyed by them.
The facts stated by Mr. Martin are completely sustained by the journal of the convention, and far from being aggravated, are related in a softer tone than it would have justified; probably from a fear of exceeding the truth; as the vouchers necessary to refresh his memory, were locked up in the strong box of secrecy. It is evident from the journal, that the difference between a national and a federal government was earnestly debated, thoroughly considered, and well understood, in the convention. Both from the journal and Mr. Martin's assertion, it appears, that the identical two points of difference between these two forms of government, which comprise the question now in debate, were considered and determined. It was proposed to invest a national Congress with an unlimited negative over all laws of the states, contravening, in its opinion, the articles of the union. It was determined to confine the negative of a federal Congress to specified cases. It was proposed to extend the jurisdiction of a national judiciary, to questions which involve the national peace and harmony. It was determined to confine the jurisdiction of a federal judiciary, to specified cases also. Controversies between the federal and state departments would certainly arise, and might contravene the articles of the union, so as to involve the national peace and harmony. Propositions to invest a national legislature and a national judiciary with powers to settle such controversies, accorded with the plan of a national government, and must have been adopted had that plan succeeded. But when the federal plan was preferred, the attributes of the national plan were necessarily abandoned; and a federal balance was of course substituted for a national supremacy. The power proposed to be given over state rights to a national legislature and judiciary, could not be given to a federal legislature and judiciary, because it would have made them national. Therefore this supreme power was approved of in connexion with a national, and rejected in connexion with a federal, form of government. The reason for the approbation was, that a national government could not exist without a supreme controlling power over the states; and the reason for its rejection was, that a federal government could not exist with it. A mutual controlling power between the federal and state departments, was as necessary for a federal, as an abolition of this principle was for a national, government.
Mr. Hamilton's selection of one half of these attributes of a national form of government, and Mr. Madison's selection of the other, to be constructively reinstated in the constitution, produces a curious anomaly. The convention, so long as it contemplated a national government, determined that a concurrent power of preserving the articles of the union and its peace and harmony, ought to be lodged in a national legislature and judiciary. Mr. Hamilton gives this power to Congress exclusively. Mr. Madison gives it exclusively to the federal judiciary. Thus neither of these gentlemen adheres to the national system with which a supreme power was associated in the convention, nor to the federal system from which it was dissevered by the same body; but yet their two halves make up a whole national government, of which both approved. The plan for a national government, proposed to invest a national legislature with a negative power over state laws contravening "the articles of the union or treaties," and as a jurisdiction in the case of treaties was given by the constitution to the federal judiciary, but not in the case of contraventions to the articles of the union, a violent presumption arises, that the latter power, only contemplated for a national legislature, was never intended to be given to a federal judiciary. We do not discern in the journal of the convention, in the secret debates, or in the constitution, the most distant idea of placing the articles of the union exclusively under the guardianship of a judicial department, either when a national or federal government was contemplated; and such a proposition would not have obtained the least countenance, because it would not have accorded with either of the three forms, national, monarchical, or federal. Mr. Hamilton's construction is more consistent with the national system proposed, and the federal system adopted, and also more republican, than Mr. Madison's, because a supremacy in Congress would be more national, as the house of representatives is elected by the people; more federal, as the senate is appointed by the state legislatures; and more republican, if that word embraces popular influence; than a supremacy in the judiciary, or a single court. A judiciary is associated with all governments, monarchical, aristocratical, or republican, and contains no innate principle for discriminating between those which are despotick, and those which are free. The nature of a government is defined by the structure of the legislative and executive departments. These contain the essential distinctions between free and despotick, and between federal and national governments. Whether therefore it was the intention of the constitution to establish a free or a despotick, a federal or a national, government, the departments most essential for effecting either object, must have been the means used, and not a department never contemplated as possessing any such capacity.
The last paragraph extracted from Mr. Martin's statement, proposes a subject for public consideration, yet more important, as being more deeply connected with the preservation of a free, fair, and moderate form of government. If the parties he describes did exist, yet exist, and will for ever exist, it is evident that civil liberty can only be preserved by a constant attention to their movements, and a perpetual counteraction of their efforts. Monarchy, its hand-maid, consolidation, and its other hand-maid, ambition, all dressed in popular disguises, require the utmost watchfulness from those who do not love them, and prefer a republican government.
History and human nature both demonstrate, that in all nations a party invariably exists, disposed to elevate the powers of a government to a pitch graduated by personal motives, and to tighten a magical cordage about the people, until it must break or be made of iron. Ambition and avarice are rope-makers constantly at work, and they unfortunately inlist the most skilful workmen, by offering the highest wages. Hence popular rights are forced to enter the list under great disadvantages, as is evinced by the humble instrument they have used in this instance. Superiorities of wealth and talents meet their struggles, and have almost universally defeated their efforts. Poor and rich men of great talents generally unite in fostering principles, which will afford them the best markets; and the best understandings are often the worst authorities, because they are exposed to the highest temptations. History and human nature are therefore credible witnesses, united with the journal, for confirming the truth of Mr. Martin's formidable assertion.
Waiving foreign, it may be sufficient to adduce the most prominent domestick events, by which this bias of human nature is established. The respectable and well-informed party called tories, at the epoch of our revolution, contended for the supremacy of the British parliament. National splendour, national strength, and a national government, were the arguments they used; but personal considerations, suggested by the prominence of their stations, or the hopes suggested by their talents, really forged their opinions. If the war of words between the whigs and tories, preceding the war with swords, could be correctly related, it would be seen that the topicks and arguments now used by the parties in favour of a federal or national government, had been anticipated; and that the similitude between the cases had produced a similitude between the reasonings. The tories loudly insisted upon the benefits of a supreme power in the British parliament and judiciary over the provincial legislatures and judiciaries, as sufficient compensations for the ignorance and partiality of these British supremacies as to the local interest of the provinces; and that local oppressions would beget national prosperity. They considered a British power of controlling provincial patriots and demagogues, as an instrument, not of tyranny, but of liberty; and they insisted that the precedents established by these supremacies, though usurpations, were constitutional laws. The whigs, more loudly as it proved, urged the oppressive consequences certainly resulting from a supremacy, incapable, from the supremacy of nature, of ascertaining what was good or bad for the provinces, locally. That the pretended national prosperity, was only a pretext of ambition and monopoly. That by unprincipled precedents, and the pretext of restraining provincial demagogues, it was intended to feed avarice, gratify ambition, and make one portion of the nation tributary to another. And that precedents for subjecting liberty to tyranny did not become sacred, because they were unheeded or could not be successfully resisted. The whigs did not consider time as an ocean, in which, should the principles of liberty be once overwhelmed, there would be no buoy for finding them again.The same arguments are now revived. The natural impossibility that the supremacies now contended for, should understand the laws, manners, and local interests of each state, will, it is said, be recompensed by the same benefits shed over the provinces by the British supremacy. Demagogues are yet so terrible, that their suppression, at the expense of losing state rights, will still be a good bargain; and precedents so holy as to be more valuable than principles or constitutions. Reformers are justly objects of suspicion, because some secret design too often lurks under their professions, and dictates their attempts. Sensible of this, the whigs and tories charged each other with innovation; and the justice of the allegation on either side, depended on the question, whether British supremacy over the provinces internally, could be legitimately exercised; or whether the provinces possessed a birth-right title to local self-government. The same mutual charge of innovation is revived in discussing the same question. The declaration of independence is a more visible birth-right of the states, than any the provinces could produce. But the states are reduced to corporations by the suprematists, as the provinces were by the tories, to evade the charge of innovation. It is very remarkable, that the same doctrine which was used as a justification of the British legislative and judicial supremacy over the provinces, is now used to justify a federal legislative and judicial supremacy over the states. It is said to be no innovation, and only a vindication of the ancient political subordination of the provinces. If the argument is sound, it proves that the claim of British supremacy was well-founded; and that it is yet the best, because it is the oldest, title, which could not be vacated vi et armis, as the lawyers say. Whether the revived doctrine will be more successful than its lineal ancestor, or less likely to terminate in civil war or disunion, may be doubtful; but there is no doubt that it is a further confirmation of Mr. Martin's account of the parties in the convention.
If more was known of the intrigue suppressed by General Washington, about the end of the revolutionary war, it might illustrate the existence of such parties as Mr. Martin describes. Its object must have been formidable, both from the weight of the characters by whom it was conceived, and also from having called forth the powerful opposition of a man, too modest to become prominent without an urgent occasion, and too respectable to waste his energy upon slight occurrences. It could have been nothing less than a political revolution, either to a national or monarchical form of government; and if it contemplated either, it establishes the previous existence of the parties which appeared in the convention.
Historical truth requires a reference to Mr. Adam's volumes in defence of the American constitutions, published during the confederation of 1777. They appear to be the result of profound literature in ancient political lore, and a deep conviction imbibed from that source. They were a manly, candid, and independent vindication of his own opinions, by a gentleman too honourable to advance them by secret or indirect modes, and too strongly impressed with their truth, to suspect that they were unable to encounter our modern improvements in the science of government. These learned volumes had their effect upon those whose object was power or wealth. They opened a rich and tempting British perspective to talents, ambition, and avarice, and they effected a combination of these powerful agents; but they failed in a plain contest with republican principles. Their impression however remained, and the eternal party, though foiled, was not subdued. After waving its crest in the convention, with all the candour inspired by secrecy, and all the energy inspired by conviction; and after having sustained a signal defeat; it is again recruited by aspirants from the republican ranks, throws down the gauntlet in open day, and challenges its antagonist to renew the combat.
But all these confirmations of Mr. Martin's assertions are surperfluous. They are established by the journal of the convention. In this we see the very parties described by Mr. Martin, and foretold by experience. Did they die with the convention, and could the lectures of the constitution repeal the laws of nature, and obliterate passions destined to live for ever? The preceding events, the journal, and the testimony of Mr. Martin, concur in proving the existence of the parties which yet divide us, although their creation has been ascribed to Mr. Jefferson. Can any assertion be more groundless, than one which cannot be true, without denying the well-known qualities of human nature, and without postponing previous events to subsequent periods? Irrevocable laws have as absolutely decided, that a perpetual struggle shall exist between liberty and tyranny, as between virtue and vice; and it is equally unjust to charge the advocates of a free form of government, or the advocates of moral rectitude, with the introduction of party spirit. Mr. Jefferson was in Europe, when our parties appeared in the convention. Subterfuges from historical truth, and local facts, indicate a consciousness of frailty, or a supremacy of prejudice.
The principles of limited monarchy were eulogized in the convention, and an attempt to establish a national government, was persevered in during the greater part of its session.These two parties are therefore unequivocally defined. The third party, called federal and truly republican, by Mr. Martin, could not be so clearly identified, because the various interpretations of the words federal and republican, enable political parties to decorate principles essentially different, with these robes admired by the publick. Like stars and garters, they may be used to adorn the most opposite characters, and the beholder who is content with their imposing surface, to ascertain patriotism or ambition, will act like one who ascertains the principles of individuals by the richness of their dress. But however indefinite may be the terms used by Mr. Martin to describe it, the journal demonstrates that a third party did exist in the convention, and that this third party successfully resisted both a monarchical and national form of government.
So far the journal literally sustains Mr. Martin's statement of facts, and to establish the last, namely, that the monarchical and national parties united, the evidence is not less conclusive. It is obvious from the journal, that the majority so long prevalent, was produced by a coalition between these two parties; and that had each of the three parties persisted separately to insist upon its own principles, the federal republican party would have been the strongest, although it received the aspect of a minority from the union of the other two. Of this union, the events between the formation and ratification of the constitution afford proofs. What became of the monarchical and consolidating parties on the dissolution of the convention? Were their principles also dissolved, and did they become adverse to their own creeds? or did they, from the same policy which dictated their junction in the convention, and the same consciousness that the people of the states were not ripe for either of their systems, melt up themselves with the strong federal party, as a safer step towards their ultimate designs, than an open avowal of their principles? It is not as evident that this fusion of the monarchical and consolidating parties into one mass, took place to procure the ratification of the constitution, as that it was designed in the convention to introduce a national government? There are some metals of properties so very similar, that their mutual attraction is highly amicable, and their amalgamation easy. Mr. Madison and Mr. Hamilton, the champions of the national and monarchical systems, liberally yielded to the example established in the convention, and renewed the same conciliatory treaty. The publick indeed was not edified by the arguments used by one of these accomplished men, for reducing the states to corporations, and establishing a supreme national government; nor by the eulogies of a limited monarchy, expressed by the other; and with unexampled felicity both substituted for the consolidating and monarchical dialect, used in the convention, a federal one, ingeniously constructed to accommodate itself with publick opinion, and also with the prepossessions of their respective partisans. Monarchy and consolidation disappeared from the question, conspicuous as they had been in the journal, and the term federal was adopted, because it would embrace the parties inclined to either, and also the party adverse to both, but friendly to a federal system. If this new dialect, so different from that used in the convention, was policy, the monarchical and consolidating parties will of course adhere to the same policy; if it was the consequence of an essential difference between a national and a federal government, a national dialect cannot be proper for construing the constitution, since a federal dialect was necessary to procure its ratification. If these gentlemen were sincere in the convention, the arguments they used in opposition to a federal system, cannot be applicable in defence of it; if they were ingenious in procuring the ratification of the constitution, the ingenuity consisted in copious solicitations of publick opinion by federal doctrines, mixed with tints transfused from the conclave, too faint to alarm the federal party, and yet sufficiently perceivable to obtain the concurrence of the consolidating and monarchical parties. The intimations that supremacy or sovereignty was lodged in Congress or the supreme federal court, enveloped in clouds of sound federal reasoning, was a profound or lucky piece of dexterity to effect both objects.
Truth has compelled me to admit, however it is to be deplored, that a superiority of talents will for ever appear on the side of a high-toned system of government.The adoption of the word federal as a political badge is an illustration of this fact. I do not recollect whether the Federalist was entitled to the applause merited by this proof of genius; but whoever was its author, it was most happily contrived for covering the monarchical, consolidating, and federal parties. The last, at the time the constitution was ratified, was, and yet is, the most numerous. But unfortunately, both then and since, no test existed for expelling heterogeneous mixtures. The genuine federal party in the convention, proceeded upon two principles, one, that a republican equality between the states ought to be established; the other, that each state ought to enjoy the exclusive power of managing its local interests. Could not some device be invented emblematical of such principles? We do not discern, except in the convention, and avowed hostility to them. So far as this hostility can insinuate itself into the councils of a genuine federal party, it must corrupt or warp its principles, just as monarchical principles may corrupt republican. Monarchical or consolidating parties, whilst they pretend to fight under federal colours, will fight for their own principles. They are seeds of disease in a federal union, which will be for ever sprouting, and if they are not eradicated as they appear by genuine federal principles, they will over-shadow and kill them.
A party "federal and truly republican," being thus deprived of half its motto, was forced to take the other half, and hoisted an ensign called republican; a definition which expelled from its ranks both the monarchical and consolidating parties. Ambitious and avaricious people were all disgusted with it. Many of the genuine federal party suspected it of a design to destroy the union, and therefore united with it slowly. The consolidating and monarchical parties, with more acuteness, perceived the devotion to a federal system, and therefore labored to keep this suspicion alive. The monarchical party, without much acuteness, could see that its object was infinitely more likely to be effected by consolidating constructions of the constitution, than by the federal constructions which obtained its ratification.
The political tactician who displayed a banner, with only the word federal written upon it, ably copied the policy by which a conqueror makes a nation subservient to its own destruction. Federalists and republicans were engaged in hostilities by monarchists and consolidators, who derived strength from their conflicts, and expected victory from their divisions.
Between the monarchical party in the convention, which wished for a suppression of the state governments; and the national party, which proposed that they should be made dependent upon a supreme legislature, judiciary, and executive, a chink is undoubtedly discernible, and this chink is now said to be the place, not for crushing, but for securing a federal system, because it is baited with didactick federalism, just as certain traps, baited with honey, are contrived to catch bears. But the chasm made by the ridiculous quarrel between the words federal and republican, as if they were