The great object of a free people must be so to form their government
and laws, and so to administer them, as to create a confidence in, and
respect for the laws; and thereby induce the sensible and virtuous part
of the community to declare in favor of the laws, and to support them
without an expensive military force. I wish, though I confess I have
not much hope, that this may be the case with the laws of congress
under the new constitution. I am fully convinced that we must organize
the national government on different principals, and make the parts
of it more efficient, and secure in it more effectually the different
interests in the community; or else leave in the state governments some
powers proposed to be lodged in it—at least till such an organization
shall be found to be practicable. Not sanguine in my expectations
of a good federal administration, and satisfied, as I am, of the
impracticability of consolidating the states, and at the same time of
preserving the rights of the people at large, I believe we ought still
to leave some of those powers in the state governments, in which the
people, in fact, will still be represented—to define some other powers
proposed to be vested in the general government, more carefully, and to
establish a few principles to secure a proper exercise of the powers
given it. It is not my object to multiply objections, or to contend
about inconsiderable powers or amendments. I wish the system adopted
with a few alterations; but those, in my mind, are essential ones;
if adopted without, [16] every good citizen will acquiesce, though I
shall consider the duration of our governments, and the liberties of
this people, very much dependant on the administration of the general
government. A wise and honest administration, may make the people
happy under any government; but necessity only can justify even our
leaving open avenues to the abuse of power, by wicked, unthinking, or
ambitious men. I will examine, first, the organization of the proposed
government, in order to judge; 2d, with propriety, what powers are
improperly, at least prematurely lodged in it. I shall examine, 3d, the
undefined powers; and 4th, those powers, the exercise of which is not
secured on safe and proper ground.
First. As to the organization——the house of representatives, the
democrative branch, as it is called, is to consist of 65 members:
that is, about one representative for fifty thousand inhabitants, to
be chosen biennially——the federal legislature may increase this
number to one for each thirty thousand inhabitants, abating fractional
numbers in each state.——Thirty-three representatives will make a
quorum for doing business, and a majority of those present determine
the sense of the house.——I have no idea that the interests, feelings,
and opinions of three or four millions of people, especially touching
internal taxation, can be collected in such a house.——In the nature
of things, nine times in ten, men of the elevated classes in the
community only can be chosen——Connecticut, for instance, will have
five representatives——not one man in a hundred of those who form
the democrative branch in the state legislature, will, on a fair
computation, be one of the five.—The people of this country, in one
sense, may all be democratic; but if we make the proper distinction
between the few men of wealth and abilities, and consider them, as we
ought, as the natural aristocracy of the country, and the great body
of the people, the middle and lower classes, as the democracy, this
federal representative branch will have but very little democracy
in it, even this small representation is not secured on proper
principles.——The branches of the legislature are essential parts
of the fundamental compact, and ought to be so fixed by the people,
that the legislature cannot alter itself by modifying the elections
of its own members. This, by a part of Art. I, Sect. 4, the general
legislature may do, it may evidently so regulate elections as to secure
the choice of any particular description of men.——It may make the
whole state one district—make the capital, or any places in the state,
the place or places of election—it may declare that the five men (or
whatever the number may be the state may chuse) who shall have the
most votes shall be considered as chosen. ——In this [17] case it
is easy to perceive how the people who live scattered in the inland
towns will bestow their votes on different men—and how a few men in a
city, in any order or profession, may unite and place any five men they
please highest among those that may be voted for——and all this may be
done constitutionally, and by those silent operations, which are not
immediately perceived by the people in general.——I know it is urged,
that the general legislature will be disposed to regulate elections on
fair and just principles:——This may be true—good men will generally
govern well with almost any constitution: but why in laying the
foundation of the social system, need we unnecessarily leave a door
open to improper regulations?—This is a very general and unguarded
clause, and many evils may flow from that part which authorises the
congress to regulate elections.——Were it omitted, the regulations
of elections would be solely in the respective states, where the
people are substantially represented; and where the elections ought
to be regulated, otherwise to secure a representation from all parts
of the community, in making the constitutions, we ought to provide
for dividing each state into a proper number of districts, and for
confining the electors in each district to the choice of some men, who
shall have a permanent interest and residence in it; and also for this
essential object, that the representative elected shall have a majority
of the votes of those electors who shall attend and give their votes.
In considering the practicability of having a full and equal
representation of the people from all parts of the union, not only
distances and different opinions, customs and views, common in
extensive tracts of country, are to be taken into view, but many
differences peculiar to Eastern, Middle, and Southern States. These
differences are not so perceivable among the members of congress, and
men of general information in the states, as among the men who would
properly form the democratic branch. The Eastern states are very
democratic, and composed chiefly of moderate freeholders; they have but
few rich men and no slaves; the Southern states are composed chiefly
of rich planters and slaves; they have but few moderate freeholders,
and the prevailing influence, in them is generally a dissipated
aristocracy: The Middle states partake partly of the Eastern and partly
of the Southern character.
Perhaps, nothing could be more disjointed, unwieldly and incompetent
to doing business with harmony and dispatch, than a federal house of
representatives properly numerous for the great objects of taxation,
&c. collected from the federal states; whether such men would ever
act in concert; whether they would not worry along a few years, and
then be the means of [18] separating the parts of the union, is very
problematical?——View this system in whatever form we can, propriety
brings us still to this point, a federal government possessed of
general and complete powers, as to those national objects which cannot
well come under the cognizance of the internal laws of the respective
states, and this federal government, accordingly, consisting of
branches not very numerous.
The house of representatives is on the plan of consolidation, but the
senate is entirely on the federal plan; and Delaware will have as
much constitutional influence in the senate, as the largest state in
the union: and in this senate are lodged legislative, executive and
judicial powers: Ten states in this union urge that they are small
states, nine of which were present in the convention.—They were
interested in collecting large powers into the hands of the senate, in
which each state still will have its equal share of power. I suppose
it was impracticable for the three large states, as they were called,
to get the senate formed on any other principles: But this only
proves, that we cannot form one general government on equal and just
principles—and proves, that we ought not to lodge in it such extensive
powers before we are convinced of the practicability of organizing it
on just and equal principles. The senate will consist of two members
from each state, chosen by the state legislatures, every sixth year.
The clause referred to, respecting the elections of representatives,
empowers the general legislature to regulate the elections of senators
also, “except as to the places of chusing senators.”—There is,
therefore, but little more security in the elections than in those of
representatives: Fourteen senators make a quorum for business, and a
majority of the senators present give the vote of the senate, except
in giving judgment upon an impeachment, or in making treaties, or
in expelling a member, when two-thirds of the senators present must
agree.—The members of the legislature are not excluded from being
elected to any military offices, or any civil offices, except those
created, or the emoluments of which shall be increased by themselves:
two-thirds of the members present, of either house, may expel a member
at pleasure. The senate is an independent branch of the legislature, a
court for trying impeachments, and also a part of the executive, having
a negative in the making of all treaties, and in appointing almost all
officers.
The vice president is not a very important, if not an unnecessary part
of the system—he may be a part of the senate at one period, and act as
the supreme executive magistrate at another.——The election of this
officer, as well as of the president of the United States seems to be
properly secured; but [19] when we examine the powers of the president,
and the forms of the executive, we shall perceive that the general
government, in this part, will have a strong tendency to aristocracy,
or the government of the few. The executive is, in fact, the president
and senate in all transactions of any importance; the president is
connected with, or tied to the senate; he may always act with the
senate, but never can effectually counteract its views: The president
can appoint no officer, civil or military, who shall not be agreeable
to the senate; and the presumption is, that the will of so important a
body will not be very easily controlled, and that it will exercise its
powers with great address.
In the judicial department, powers ever kept distinct in well balanced
governments, are no less improperly blended in the hands of the same
men—in the judges of the supreme court is lodged the law, the equity
and the fact. It is not necessary to pursue the minute organical parts
of the general government proposed.—There were various interests in
the convention, to be reconciled, especially of large and small states;
of carrying and non-carrying states; and of states more and states
less democratic—vast labour and attention were by the convention
bestowed on the organization of the parts of the constitution offered;
still it is acknowledged there are many things radically wrong in the
essential parts of this constitution—but it is said that these are
the result of our situation: On a full examination of the subject,
I believe it; but what do the laborious inquiries and determination
of the convention prove? If they prove any thing, they prove that we
cannot consolidate the states on proper principles: The organization
of the government presented proves, that we cannot form a general
government in which all power can be safely lodged; and a little
attention to the parts of the one proposed will make it appear very
evident, that all the powers proposed to be lodged in it, will not be
then well deposited, either for the purposes of government, or the
preservation of liberty. I will suppose no abuse of power in those
cases, in which the abuse of it is not well guarded against—I will
suppose the words authorizing the general government to regulate the
elections of its own members struck out of the plan, or free district
elections, in each state, amply secured.—That the small representation
provided for shall be as fair and equal as it is capable of being
made—I will suppose the judicial department regulated on pure
principles, by future laws, as far as it can be by the constitution,
and consist with the situation of the country—still there will be an
unreasonable accumulation of powers in the general government if all be
granted, enumerated in the plan proposed. The plan does not present a
well balanced government: The senatorial [20] branch of the legislative
and the executive are substantially united, and the president, or
the state executive magistrate, may aid the senatorial interest when
weakest, but never can effectually support the democratic, however
it may be opposed;—the excellency, in my mind, of a well-balanced
government is that it consists of distinct branches, each sufficiently
strong and independant to keep its own station, and to aid either of
the other branches which may occasionally want aid.
The convention found that any but a small house of representatives
would be expensive, and that it would be impracticable to assemble
a large number of representatives. Not only the determination of the
convention in this case, but the situation of the states, proves
the impracticability of collecting, in any one point, a proper
representation.
The formation of the senate, and the smallness of the house, being,
therefore, the result of our situation, and the actual state of things,
the evils which may attend the exercise of many powers in this national
government may be considered as without a remedy.
All officers are impeachable before the senate only—before the men
by whom they are appointed, or who are consenting to the appointment
of these officers. No judgment of conviction, on an impeachment,
can be given unless two thirds of the senators agree. Under these
circumstances the right of impeachment, in the house, can be of but
little importance; the house cannot expect often to convict the
offender; and, therefore, probably, will but seldom or never exercise
the right. In addition to the insecurity and inconveniences attending
this organization beforementioned, it may be observed, that it is
extremely difficult to secure the people against the fatal effects of
corruption and influence. The power of making any law will be in the
president, eight senators, and seventeen representatives, relative to
the important objects enumerated in the constitution. Where there is
a small representation a sufficient number to carry any measure, may,
with ease, be influenced by bribes, offices and civilities; they easily
form private juntoes, and out-door meetings, agree on measures, and
carry them by silent votes.
Impressed, as I am, with a sense of the difficulties there are in the
way of forming the parts of a federal government on proper principles,
and seeing a government so unsubstantially organized, after so arduous
an attempt has been made, I am led to believe, that powers ought to be
given to it with great care and caution.
In the second place it is necessary, therefore, to examine the extent,
and the probable operations of some of those ex- [21] tensive powers
proposed to be vested in this government. These powers, legislative,
executive, and judicial, respect internal as well as external objects.
Those respecting external objects, as all foreign concerns, commerce,
imposts, all causes arising on the seas, peace and war, and Indian
affairs, can be lodged no where else, with any propriety, but in this
government. Many powers that respect internal objects ought clearly to
be lodged in it; as those to regulate trade between the states, weights
and measures, the coin or current monies, post-offices, naturalization,
&c. These powers may be exercised without essentially effecting the
internal police of the respective states: But powers to lay and collect
internal taxes, to form the militia, to make bankrupt laws, and to
decide on appeals, questions arising on the internal laws of the
respective states, are of a very serious nature, and carry with them
almost all other powers. These taken in connection with the others, and
powers to raise armies and build navies, proposed to be lodged in this
government, appear to me to comprehend all the essential powers in this
community, and those which will be left to the states will be of no
great importance.
A power to lay and collect taxes at discretion, is, in itself, of very
great importance. By means of taxes, the government may command the
whole or any part of the subject’s property. Taxes may be of various
kinds; but there is a strong distinction between external and internal
taxes. External taxes are import duties, which are laid on imported
goods; they may usually be collected in a few seaport towns, and of a
few individuals, though ultimately paid by the consumer; a few officers
can collect them, and they can be carried no higher than trade will
bear, or smuggling permit—that in the very nature of commerce, bounds
are set to them. But internal taxes, as poll and land taxes, excises,
duties on all written instruments, &c. may fix themselves on every
person and species of property in the community; they may be carried to
any lengths, and in proportion as they are extended, numerous officers
must be employed to assess them, and to enforce the collection of
them. In the United Netherlands the general government has compleat
powers, as to external taxation; but as to internal taxes, it makes
requisitions on the provinces. Internal taxation in this country is
more important, as the country is so very extensive. As many assessors
and collectors of federal taxes will be above three hundred miles from
the seat of the federal government as will be less. Besides, to lay and
collect taxes, in this extensive country, must require a great number
of congressional ordinances immediately operating upon the body of the
people; these must continually interfere with the state laws, [22] and
thereby produce disorder and general dissatisfaction, till the one
system of laws or the other, operating on the same subjects, shall be
abolished. These ordinances alone, to say nothing of those respecting
the militia, coin, commerce, federal judiciary, &c. &c. will probably
soon defeat the operations of the state laws and governments.
Should the general government think it politic, as some administration
(if not all) probably will, to look for a support in a system of
influence, the government will take every occasion to multiply laws,
and officers to execute them, considering these as so many necessary
props for its own support. Should this system of policy be adopted,
taxes more productive than the impost duties will, probably, be wanted
to support the government, and to discharge foreign demands, without
leaving any thing for the domestic creditors. The internal sources of
taxation then must be called into operation, and internal tax laws and
federal assessors and collectors spread over this immense country.
All these circumstances considered, is it wise, prudent, or safe, to
vest the powers of laying and collecting internal taxes in the general
government, while imperfectly organized and inadequate; and to trust
to amending it hereafter, and making it adequate to this purpose? It
is not only unsafe but absurd to lodge power in a government before
it is fitted to receive it. It is confessed that this power and
representation ought to go together. Why give the power first? Why
give the power to the few, who, when possessed of it, may have address
enough to prevent the increase of representation? Why not keep the
power, and, when necessary, amend the constitution, and add to its
other parts this power, and a proper increase of representation at
the same time? Then men who may want the power will be under strong
inducements to let in the people, by their representatives, into the
government, to hold their due proportion of this power. If a proper
representation be impracticable, then we shall see this power resting
in the states, where it at present ought to be, and not inconsiderately
given up.
When I recollect how lately congress, conventions, legislatures, and
people contended in the cause of liberty, and carefully weighed the
importance of taxation, I can scarcely believe we are serious in
proposing to vest the powers of laying and collecting internal taxes
in a government so imperfectly organized for such purposes. Should
the United States be taxed by a house of representatives of two
hundred members, which would be about fifteen members for Connecticut,
twenty-five for Massachusetts, &c. still the middle and lower classes
of people could have no great share, in fact, in taxation. I am
aware it is said, that the representation proposed by the new [23]
constitution is sufficiently numerous; it may be for many purposes;
but to suppose that this branch is sufficiently numerous to guard the
rights of the people in the administration of the government, in which
the purse and sword is placed, seems to argue that we have forgot
what the true meaning of representation is. I am sensible also, that
it is said that congress will not attempt to lay and collect internal
taxes; that it is necessary for them to have the power, though it
cannot probably be exercised.——I admit that it is not probable that
any prudent congress will attempt to lay and collect internal taxes,
especially direct taxes: but this only proves, that the power would be
improperly lodged in congress, and that it might be abused by imprudent
and designing men.
I have heard several gentlemen, to get rid of objections to this part
of the constitution, attempt to construe the powers relative to direct
taxes, as those who object to it would have them; as to these, it is
said, that congress will only have power to make requisitions, leaving
it to the states to lay and collect them. I see but very little colour
for this construction, and the attempt only proves that this part of
the plan cannot be defended. By this plan there can be no doubt,
but that the powers of congress will be complete as to all kinds of
taxes whatever—Further, as to internal taxes, the state governments
will have concurrent powers with the general government, and both may
tax the same objects in the same year; and the objection that the
general government may suspend a state tax, as a necessary measure
for the promoting the collection of a federal tax, is not without
foundation.——As the states owe large debts, and have large demands
upon them individually, there clearly will be a propriety in leaving in
their possession exclusively, some of the internal sources of taxation,
at least until the federal representation shall be properly encreased:
The power in the general government to lay and collect internal taxes,
will render its powers respecting armies, navies and the militia, the
more exceptionable. By the constitution it is proposed that congress
shall have power “to raise and support armies, but no appropriation
of money to that use shall be for a longer term than two years; to
provide and maintain a navy; to provide for calling forth the militia
to execute the laws of the union; suppress insurrections, and repel
invasions: to provide for organizing, arming, and disciplining the
militia;” reserving to the states the right to appoint the officers,
and to train the militia according to the discipline prescribed by
congress; congress will have unlimited power to raise armies, and to
engage officers and men for any number of years; but a legislative
act applying money for their support can have operation for no longer
term than two years, and if a subsequent congress, do [24] not within
the two years renew the appropriation, or further appropriate monies
for the use of the army, the army will be left to take care of itself.
When an army shall once be raised for a number of years, it is not
probable that it will find much difficulty in getting congress to pass
laws for applying monies to its support. I see so many men in America
fond of a standing army, and especially among those who probably will
have a large share in administering the federal system; it is very
evident to me, that we shall have a large standing army as soon as
the monies to support them can be possibly found. An army is not a
very agreeable place of employment for the young gentlemen of many
families. A power to raise armies must be lodged some where; still
this will not justify the lodging this power in a bare majority of so
few men without any checks; or in the government in which the great
body of the people, in the nature of things, will be only nominally
represented. In the state governments the great body of the people,
the yeomanry, &c. of the country, are represented: It is true they
will chuse the members of congress, and may now and then chuse a man
of their own way of thinking; but it is not impossible for forty, or
thirty thousand people in this country, one time in ten to find a man
who can possess similar feelings, views, and interests with themselves:
Powers to lay and collect taxes and to raise armies are of the greatest
moment; for carrying them into effect, laws need not be frequently
made, and the yeomanry, &c. of the country ought substantially to have
a check upon the passing of these laws; this check ought to be placed
in the legislatures, or at least, in the few men the common people of
the country, will, probably, have in congress, in the true sense of
the word, “from among themselves.” It is true, the yeomanry of the
country possess the lands, the weight of property, possess arms, and
are too strong a body of men to be openly offended—and, therefore,
it is urged, they will take care of themselves, that men who shall
govern will not dare pay any disrespect to their opinions. It is easily
perceived, that if they have not their proper negative upon passing
laws in congress, or on the passage of laws relative to taxes and
armies, they may in twenty or thirty years be by means imperceptible to
them, totally deprived of that boasted weight and strength: This may be
done in a great measure by congress, if disposed to do it, by modelling
the militia. Should one fifth or one eighth part of the men capable of
bearing arms, be made a select militia, as has been proposed, and those
the young and ardent part of the community, possessed of but little
or no property, and all the others put upon a plan that will render
them of no importance, the former will answer all the purposes of an
[25] army, while the latter will be defenceless. The state must train
the militia in such form and according to such systems and rules as
congress shall prescribe: and the only actual influence the respective
states will have respecting the militia will be in appointing the
officers. I see no provision made for calling out the _posse comitatus_
for executing the laws of the union, but provision is made for congress
to call forth the militia for the execution of them—and the militia
in general, or any select part of it, may be called out under military
officers, instead of the sheriff to enforce an execution of federal
laws, in the first instance, and thereby introduce an entire military
execution of the laws. I know that powers to raise taxes, to regulate
the military strength of the community on some uniform plan, to provide
for its defence and internal order, and for duly executing the laws,
must be lodged somewhere; but still we ought not so to lodge them, as
evidently to give one order of men in the community, undue advantages
over others; or commit the many to the mercy, prudence, and moderation
of the few. And so far as it may be necessary to lodge any of the
peculiar powers in the general government, a more safe exercise of
them ought to be secured, by requiring the consent of two-thirds or
three-fourths of congress thereto—until the federal representation can
be increased, so that the democratic members in congress may stand some
tolerable chance of a reasonable negative, in behalf of the numerous,
important, and democratic part of the community.
I am not sufficiently acquainted with the laws and internal police of
all the states to discern fully, how general bankrupt laws, made by the
union, would effect them, or promote the public good. I believe the
property of debtors, in the several states, is held responsible for
their debts in modes and forms very different. If uniform bankrupt laws
can be made without producing real and substantial inconveniences, I
wish them to be made by congress.
There are some powers proposed to be lodged in the general government
in the judicial department, I think very unnecessarily, I mean
powers respecting questions arising upon the internal laws of the
respective states. It is proper the federal judiciary should have
powers co-extensive with the federal legislature—that is, the power
of deciding finally on the laws of the union. By Art. 3, Sec. 2. the
powers of the federal judiciary are extended (among other things)
to all cases between a state and citizens of another state—between
citizens of different states—between a state or the citizens thereof,
and foreign states, citizens or subjects. Actions in all these cases,
except against a state government, are now brought and finally [26]
determined in the law courts of the states respectively and as there
are no words to exclude these courts of their jurisdiction in these
cases, they will have concurrent jurisdiction with the inferior federal
courts in them; and, therefore, if the new constitution be adopted
without any amendment in this respect, all those numerous actions,
now brought in the state courts between our citizens and foreigners,
between citizens of different states, by state governments against
foreigners, and by state governments against citizens of other states,
may also be brought in the federal courts; and an appeal will lay in
them from the state courts or federal inferior courts to the supreme
judicial court of the union. In almost all these cases, either party
may have the trial by jury in the state courts; except paper money
and tender laws, which are wisely guarded against in the proposed
constitution; justice may be obtained in these courts on reasonable
terms; they must be more competent to proper decisions on the laws of
their respective states, than the federal states can possibly be. I do
not, in any point of view, see the need of opening a new jurisdiction
in these causes—of opening a new scene of expensive law suits, of
suffering foreigners, and citizens of different states, to drag each
other many hundred miles into the federal courts. It is true, those
courts may be so organized by a wise and prudent legislature, as to
make the obtaining of justice in them tolerably easy; they may in
general be organized on the common law principles of the country: But
this benefit is by no means secured by the constitution. The trial by
jury is secured only in those few criminal cases, to which the federal
laws will extend—as crimes committed on the seas, against the laws
of nations, treason and counterfeiting the federal securities and
coin: But even in these cases, the jury trial of the vicinage is not
secured—particularly in the large states, a citizen may be tried
for a crime committed in the state, and yet tried in some states 500
miles from the place where it was committed; but the jury trial is
not secured at all in civil causes. Though the convention have not
established this trial, it is to be hoped that congress, in putting
the new system into execution, will do it by a legislative act, in
all cases in which it can be done with propriety. Whether the jury
trial is not excluded the supreme judicial court is an important
question. By Art. 3, Sec. 2, all cases affecting ambassadors, other
public ministers, and consuls, and in those cases in which a state
shall be party, the supreme court shall have jurisdiction. In all the
other cases beforementioned, the supreme court shall have appellate
jurisdiction, both as to _law and fact_, with such exception, and under
such regulations as the congress shall make. By court is understood a
court consisting of judges; and the [27] idea of a jury is excluded.
This court, or the judges, are to have jurisdiction on appeals, in all
the cases enumerated, as to law and fact; the judges are to decide the
law and try the fact, and the trial of the fact being assigned to the
judges by the constitution, a jury for trying the fact is excluded;
however, under the exceptions and powers to make regulations, congress
may, perhaps, introduce the jury, to try the fact in most necessary
cases.
There can be but one supreme court in which the final jurisdiction
will centre in all federal causes—except in cases where appeals by
law shall not be allowed: The judicial powers of the federal courts
extend in law and equity to certain cases: and, therefore, the
powers to determine on the law, in equity, and as to the fact, all
will concentrate in the supreme court:—These powers, which by this
constitution are blended in the same hands, the same judges, are in
Great-Britain deposited in different hands—to wit, the decision of
the law in the law judges, the decision in equity in the chancellor,
and the trial of the fact in the jury. It is a very dangerous thing to
vest in the same judge power to decide on the law, and also general
powers in equity; for if the law restrain him, he is only to step into
his shoes of equity, and give what judgment his reason or opinion may
dictate; we have no precedents in this country, as yet, to regulate
the divisions in equity as in Great Britain; equity, therefore, in the
supreme court for many years will be mere discretion. I confess in the
constitution of this supreme court, as left by the constitution, I do
not see a spark of freedom or a shadow of our own or the British common
law.
This court is to have appellate jurisdiction in all the other cases
before mentioned: Many sensible men suppose that cases before mentioned
respect, as well the criminal cases as the civil ones mentioned
antecedently in the constitution, if so an appeal is allowed in
criminal cases—contrary to the usual sense of law. How far it may be
proper to admit a foreigner or the citizen of another state to bring
actions against state governments, which have failed in performing
so many, promises made during the war is doubtful: How far it may be
proper so to humble a state, as to oblige it to answer to an individual
in a court of law, is worthy of consideration; the states are now
subject to no such actions; and this new jurisdiction will subject the
states, and many defendants to actions, and processes, which were not
in the contemplation of the parties, when the contract was made; all
engagements existing between citizens of different states, citizens and
foreigners, states and foreigners; and states and citizens of other
states were made the parties contemplating the remedies then existing
on the laws of the states—— [28] and the new remedy proposed to be
given in the federal courts, can be founded on no principle whatever.
Your’s, &c.,