(1) HELVITIUS.
(2) ABBE MABLE.
(3) A division of the legislature has been adopted in the new
constitution of every state except Pennsylvania and Georgia.
(4) I cannot help remarking the singular jealousy of the constitution
of Pennsylvania, which requires that a bill shall be published for
the consideration of the people, before it is enacted into a law,
except in extraordinary cases. This annihilates the legislature, and
reduces it to an advisory body. It almost wholly supersedes the uses of
_representation_, the most excellent improvement in modern governments.
Besides the absurdity of constituting a legislature, without supreme
power, such a system will keep the state perpetually embroiled. It
carries the spirit of discussion into all quarters, without the means
of reconciling the opinions of men, who are not assembled to hear
each others’ arguments. They debate with themselves—form their own
opinions, without the reasons which influence others, and without the
means of information. Thus the warmth of different opinions, which, in
other states, dies in the legislature, is diffused through the state
of Pennsylvania, and becomes personal and permanent. The seeds of
dissension are sown in the constitution, and no state, except Rhode
Island, is so distracted by factions.
(5) In the decline of the republic, bribery or military force obtained
this office for persons who had not attained this age—Augustus was
chosen at the age of twenty; or rather obtained it with his sword.
(6) [“Query.”]
(7) [of]
(8) I say the senate was _elective_—but this must be understood with
some exceptions; or rather qualifications. The constitution of the
Roman senate has been a subject of enquiry, with the first men in
modern ages. Lord Chesterfield requested the opinion of the learned
Vertot, upon the manner of chusing senators in Rome; and it was a
subject of discussion between Lord Harvey and Dr. Middleton. The most
probable account of the manner of forming the senate, and filling
up vacancies, which I have collected from the best writers on this
subject, is here abridged for the consideration of the reader.
Romulus chose one hundred persons, from the principal families in Rome,
to form a council or senate; and reserved to himself the right of
nominating their successors; that is of filling vacancies. “Mais comme
Romulus avoit lui même choisi les premiers senateurs il se reserva le
droit de nommer a son gré, leurs successeurs.”—Mably, sur les Romains.
Other well informed historians intimate that Romulus retained the right
of nominating the president only. After the union of the Sabines with
the Romans, Romulus added another hundred members to the senate, but by
_consent of the people_. Tarquin, the _ancient_, added another hundred;
but historians are silent as to the manner.
On the destruction of Alba by Hostilius, some of the principal Alban
families were added to the senate, _by consent of the senate and
people_.
After the demolition of the monarchy, Appius Claudius was admitted into
the senate by _order of the people_.
Cicero testifies that, from the extinction of the monarchy, all the
members of the senate were admitted by _command of the people_.
It is observable that the first creation of the senators was the act of
the monarch; and the first patrician families claimed the sole right
of admission into the senate. “Les familles qui descendoient des deux
cent senateurs que “Romulus avoit créés,—se crurent seules en droit
d’entrer dans le sénat.”—Mably
This right however was not granted in its utmost extent; for many
of the senators in the Roman commonwealth, were taken from plebian
families. For sixty years before the institution of the _censorship_,
which was A. U. C. 311, we are not informed how vacancies in the senate
were supplied. The most probable method was this; to enrol, in the list
of senators, the different magistrates; viz., the consuls, prætors, the
two quætors of patrician families, the five tribunes (afterwards ten)
and the two ædiles of plebian families: The office of quæstor gave an
immediate admission into the senate. The tribunes were admitted two
years after their creation. This enrollment seems to have been a matter
of course; and likewise their confirmation by the people in their
comitia or assemblies.
On extraordinary occasions, when the vacancies of the senate were
numerous, the consuls used to nominate some of the most respectable of
the equestrian order, to be chosen by the people.
On the institution of the censorship, the censors were invested with
full powers to inspect the manners of the citizens,—enrol them in
their proper ranks according to their property,—make out lists of the
senators and leave out the names of such as had rendered themselves
unworthy of their dignity by any scandalous vices. This power they
several times exercised; but the disgraced senators had an appeal to
the people.
After the senate had lost half its members in the war with Hannibal,
the dictator, M. Fabius Buteo, filled up the number with the
magistrates, with those who had been honored with a civic crown, or
others who were respectable for age and character. One hundred and
seventy new members were added at once, with _the approbation of the
people_. The vacancies occasioned by Sylla’s proscriptions amounted to
three hundred, which were supplied by persons nominated by Sylla and
_chosen by the people_.
Before the time of the Gracchi, the number of senators did not
exceed three hundred. But in Sylla’s time, so far as we can collect
from direct testimonies, it amounted to about five hundred. The
age necessary to qualify for a seat in the senate is not exactly
ascertained; but several circumstances prove it to have been about
thirty years.
See Vertot, Mably, and Middleton on this subject.
In the last ages of Roman splendor, the property requisite to qualify
a person for a senator, was settled by Augustus at eight hundred
sestertia—more than six thousand pounds sterling.
(9) [“Between states, and excluding negroes,” added in author’s
copy.—P. L. F.]
(10) It is a capital defect of most of the state-constitutions, that the
senators, like the representatives, are chosen in particular districts.
They are thus inspired with local views, and however wrong it may be
to entertain them, yet such is the constitution of human nature, that
men are almost involuntarily attached to the interest of the district
which has reposed confidence in their abilities and integrity. Some
partiality therefore for constituents is always expectable. To destroy
it as much as possible, a political constitution should remove the
grounds of local attachment. Connecticut and Maryland have wisely
destroyed this attachment in their senates, by ordaining that the
members shall be chosen in the _state at large_. The senators hold
their seats by the suffrages of the state, _not of a district_; hence
they have no particular number of men to fear or to oblige.—They
represent _the state_; hence that union and firmness which the senates
of those states have manifested on the most trying occasions, and by
which they have prevented the most rash and iniquitous measures.
It may be objected, that when the election of senators is vested in the
people, they must choose men in their own neighborhood, or else those
with whom they are unacquainted. With respect to representatives, this
objection does not lie; for they are chosen in small districts; and as
to senators, there is, in every state, a small number of men, whose
reputation for abilities, integrity and good conduct will lead the
people to a very just choice. Old experienced statesmen should compose
the senate; and people are generally, in this free country, acquainted
with their characters. Were it possible, as it is in small states, it
would be an improvement in the doctrine of representation, to give
every freeman the right of voting for every member of the legislature,
and the privilege of choosing the men in any part of the state. This
would totally exclude bribery and undue influence; for no man can bribe
a state; and it would almost annihilate partial views in legislation.
But in large states it may be impracticable.
(11) [of]
(12) It is said by some, that no property should be required as a
qualification for an elector. I shall not enter into a discussion of
the subject; but remark that in most free governments, some property
has been thought requisite, to prevent corruption and secure government
from the influence of an unprincipled multitude.
In ancient Rome none but the free citizens had the right of a suffrage
in the _comitia_ or legislative assemblies. But in Sylla’s time the
Italian cities demanded the rights of the Roman citizens; alledging
that they furnished two-thirds of the armies, in all their wars, and
yet were despised as foreigners. Vell Paterc. lib. 2. cap. 15. This
produced the _Marsic_ or _social_ war, which lasted two years, and
caried off 300,000 men. Ibm. It was conducted and concluded by Pompey,
father of Pompey the Great, with his lieutenants Sylla and Marius.
But most of the cities eventually obtained _the freedom of Rome_; and
were of course entitled to the rights of suffrage in the comitia.
“Paulatim deinde recipiendo in civitatem, qui arma aut non ceperant aut
deposuerant maturiùs, vires refectæ sunt.” Vell. Paterc. 2. 16.
But Rome had cause to deplore this event, for however reasonable it
might appear to admit the allies to a participation of the rights of
citizens, yet the concession destroyed all freedom of election. It
enabled an ambitious demagogue to engage and bring into the assemblies,
whole towns of people, slaves and foreigners;—and everything was
decided by faction and violence. This Montesquieu numbers among the
causes of the decline of the Roman greatness. De la grandeur des
Romains, c. 9.
Representation would have, in some measure, prevented the consequences;
but the admission of every man to a suffrage will ever open the door to
corruption. In such a state as Connecticut, where there is no conflux
of foreigners, no introduction of seamen, servants, &c., and scarcely
an hundred persons in the state who are not natives, and very few whose
education and connexions do not attach them to the government; at the
same time few men have property to furnish the means of corruption,
very little danger could spring from admitting every man of age and
discretion to the privilege of voting for rulers. But in the large
towns of America there is more danger. A master of a vessel may put
votes in the hands of his crew, for the purpose of carrying an election
for a party. Such things have actually taken place in America. Besides,
the middle states are receiving emigrations of poor people, who are
not at once judges of the characters of men, and who cannot be safely
trusted with the choice of legislators.
(13) [These two paragraphs struck out in author’s copy.—P. L. F.]
(14) [Last two sentences struck out in author’s copy.—P. L. F.]
(15) The clause may at first appear ambiguous. It may be uncertain
whether we should read and understand it thus—“The Congress shall
have power to lay and collect taxes, duties, imposts and excises
_in order to pay the debts_,” &c. or whether the meaning is—“The
Congress shall have power to lay and collect taxes, duties, imposts and
excises, and _shall have power to pay the debts_,” &c. On considering
the construction of the clause, and comparing it with the preamble,
the last sense seems to be improbable and absurd. But it is not very
material; for no powers are vested in Congress but what are included
under the general expressions, of _providing for the common defence
and general welfare of the United States_. Any powers not promotive
of these purposes, will be unconstitutional;—consequently any
appropriations of money to any other purpose will expose the Congress
to the resentment of the states, and the members to impeachment and
loss of their seats.
(16) [“O” changed to “good” in author’s copy P. L. F.]
(17) “Quod nemo plebeius auspicia haberet, ideoque decemviros connubium
diremisse, ne incerta prole auspicia turbarentur.” Tit. Liv. lib. 4.
cap. 6.
(18) Auguriis certe sacerdotisque augurum tantus honos accessit, ut
nihil belli domique postea, nisi auspicato, gereretur: concilia populi,
exercitus vocati, summa rerum, ubi aves non admisissent, dirimerentur.
Liv. lib. 1. cap. 37.
(19) [“The” and “of” struck out—“without” substituted in author’s
copy—P. L. F.]
(20) [Last two sentences struck out in author’s copy.—P. L. F.]
(21) Essay on the Roman government.
(22) Livy, 2.33.
(23) Livy, 3.54.
(24) Livy, 3.33.
(25) Livy, 4.6.
(26) Livy, 6. 35. 42. “Ne quis plus quingenta jugera agri possideret.”
(27) Montesquieu supposed _virtue_ to be the principle of a republic.
He derived his notions of this form of government, from the astonishing
firmness, courage and patriotism which distinguished the republics of
Greece and Rome. But this _virtue_ consisted in pride, contempt of
strangers and a martial enthusiasm which sometimes displayed itself in
defence of their country. These principles are never permanent—they
decay with refinement, intercourse with other nations and increase of
wealth. No wonder then that these republics declined, for they were not
founded on fixed principles; and hence authors imagine that republics
cannot be durable. None of the celebrated writers on government seems
to have laid sufficient stress on a general possession of real property
in fee-simple. Even the authors of the _Political Sketches_, in the
_Museum_ for the month of September, seems to have passed it over
in silence; although he combats Montesquieu’s system, and to prove
it false, enumerates some of the principles which distinguish our
governments from others, and which he supposes constitutes the support
of republics.
The English writers on law and government consider Magna Charta,
trial by juries, the Habeas Corpus act, and the liberty of the press,
as the bulwarks of freedom. All this is well. But in no government
of consequence in Europe, is freedom established on its true and
immoveable foundation. The property is too much accumulated, and
the accumulations too well guarded, to admit the _true principle of
republics_. But few centuries have elapsed, since the body of the
people were vassals. To such men, the smallest extension of popular
privileges, was deemed an invaluable blessing. Hence the encomiums upon
trial by juries, and the articles just mentioned. But these people
have never been able to mount to the source of _liberty_, _estates
in fee_, or at least but partially; they are yet obliged to drink at
the streams. Hence the English jealousy of certain rights, which are
guaranteed by acts of parliament. But in America, and here alone, we
have gone at once to the _fountain of liberty_, and raised the people
to their true dignity. Let the lands be possessed by the people in
fee-simple, let the fountain be kept pure, and the streams will be
pure of course. Our jealousy of _trial by jury_, _the liberty of
the press_, &c., is totally groundless. Such rights are inseparably
connected with the _power_ and _dignity_ of the people, which rest on
their _property_. They cannot be abridged. All _other_ [free] nations
have wrested _property_ and _freedom_ from _barons_ and _tyrants_; _we_
begin our empire with full possession of property and all its attending
rights.
(28) [Last three sentences struck out in author’s copy.—P. L. F.]
(29) [Revise to “The constitution is generally good.”—P. L. F.]
(30) [“utterly” struck out.—P. L. F.]
(31) The state debt of Connecticut is about 3,500,000 dollars, its
proportion of the federal debt about the same sum. The annual interest
of the whole 420,000 dollars.
(32) [Last three sentences, the following paragraph and foot note
struck out in author’s copy.—P. L. F.]
(33) [“The convention was composed of,” added after “that,” by
author.—P. L. F.]
(34) [“This proves how little dependence can be placed on theory.
Twelve years experience, or four elections demonstrates the
contrary.”—Note in author’s copy.—P. L. F.]
(35) This is the case with that British Borough.
(36) Trials between a state and its own Citizens, and between Citizens
of the same state, involving questions concerning state laws that
infringe this constitution, may be carried by appeal, it is presumed,
into a fœderal court.
(37) There is one grand operation of the new fœderal constitution,
favorable to general liberty, which I do not remember to have heard
from any of its friends. It is well known, that in most of the
states the members of their Houses of Representatives are chosen in
equal numbers from each county, and in the eastern states, in equal
numbers from each town, without any regard to the number of taxable
inhabitants, or the number of souls. Hence it is very frequent for
a county, with ten thousand souls, to send only the same number of
members to the state house of representatives, as a county with two
thousand souls, by which each person in the least populous county has
five times as great a voice in electing representatives, as his fellow
citizen of the most populous county. This is clearly a departure from
the principles of equal liberty, and ought to be altered in the several
states. I speak the more plainly because our state constitution is free
from that fault in the formation of our house of Assembly. Now the new
constitution expressly declares, that the fœderal Representatives shall
be in the proportion of one to every thirty thousand, which accords
with reason and the true principles of liberty. This house, therefore,
so far as national matters go, will remedy the evil spoken of in the
several states, and is one more great step towards the perfection of
equal liberty and genuine republicanism in America. It must strongly
recommend the fœderal constitution to the serious reflecting patriot,
even though he may formerly have had doubts, and it will suggest to
the several states the propriety of reconsidering that point in their
respective constitutions. Pennsylvania, though right in the principles
on which her legislative elections are and will be held, is less safe
from the existence of this fault in the adjoining sister states of
Virginia, Maryland, Jersey, Delaware and New York, and in others more
remote.
(38) The candid Reader will suppose Mr. WILSON here means, that it is
the best form of fœderal government, which has ever been offered to the
world—and it is surely true that the fœderal constitution, considered
in due connexion with the state constitutions, is the best form of
government that has ever been communicated to mankind.
(39) See some late publications.
(40) See late publications.
(41) “The error of those who reason by precedent, drawn from antiquity,
respecting the rights of man, is, that they do not go far enough into
antiquity. They do not go the whole way. They stop in some of the
intermediate stages of an hundred or a thousand years, and produce what
was then done, as a rule for the present day. This is no authority at
all. If we travel still further into antiquity, we shall find a direct
contrary opinion and practice prevailing; and if antiquity is to be
authority, a thousand such authorities may be produced, successively
contradicting each other: but if we proceed on, at last we shall come
out right: We shall then come to the time when man came from the hand
of his Maker. What was he then? _Man._ Man was his high and only title,
and a higher cannot be given him——We are now got at the origin of
man, and at the origin of his rights.——Every history of the creation,
and every traditionary account, whether from the lettered or unlettered
world, however they may vary in their opinion or belief of certain
particulars, all agree in establishing one point, the _unity_ of man;
by which I mean that man is all of one degree, and consequently that
all men are born equal, and with equal natural rights. By considering
man in this light, it places him in a close connection with all his
duties, whether to his _Creator_, or to the creation, of which he is a
part; and it is only where he forgets his _origin_, or, to use a more
fashionable phrase, his birth and family, that he becomes dissolute.
“Hitherto we have spoken only (and that but in part) of the natural
rights of man. We have now to consider the civil rights of man, and to
shew how the one _originates_ out of the other.—Man did not enter into
society, to become worse than he was before, nor to have less rights
than he had before, but to have those rights _better secured_. His
natural rights are the foundation of all his civil rights. But in order
to pursue this distinction with more precision, it will be necessary to
mark the different qualities of natural and civil rights.
“A few words will explain this. Natural rights are those which
appertain to man in the right of his existence—civil rights are those
which appertain to man in right of his being a member of society. Every
civil right has for its foundation some natural right pre-existing in
the individual, but to unite his individual power is not, in all cases,
sufficiently competent. Of this kind are all those which relate to
_security_ and _protection_.
“From this short review it will be easy to distinguish between that
class of natural rights which man retains after entering into society,
and those which he throws into _common stock_ as a member of society.
The natural rights which he retains, are all those in which the power
to execute is as perfect in the individual as the right itself.—The
natural rights which are not retained, are all those in which, though
the right is perfect in the individual, the power to execute them is
defective: _they answer not his purpose_—those he _deposits_ in the
_common stock_ of society, and takes the arm of society, of which he is
a part, in preference and in addition to his own. Society grants him
nothing. Every man is a proprietor in society, and draws on the capital
as a matter of right.”—“_Rights of Man_,” 1791, page 30, 31.
(42) “We have now traced Man from a natural individual to a member of
society——Civil power, properly considered as such is made up of the
_aggregate_ of that class of the natural rights, which become defective
in the individual in point of power, and _answers not his purpose_; but
when collected into a focus, becomes competent to the purpose of every
one.——Let us now apply those principles to government.——
“Individuals themselves, each in his own personal and sovereign right,
entered into a compact with each other, to produce a government; and
this is the only mode in which governments have a right to arise, and
the only principle on which they have a right to exist.
“A _constitution_ is not a thing in name only, but in fact.—It
has not an ideal but a real existence, and wherever it cannot be
produced in a visible form, there is none. A _constitution_ is a thing
antecedent to a _government_; and a government is only the creature
of a constitution.—A constitution of a country is not the act of its
government, but of the people constituting a government. It is the
body of elements to which you can refer, and quote article by article;
and which contains the principles on which the government shall be
established, the manner in which it shall be organized, the powers
it shall have, the mode of election, the duration of parliaments, or
by what other name such bodies may be called, the powers which the
executive part of the government shall have; and, in fine, every thing
that relates to the complete _organization_ of a civil government,
and the principles on which it shall act, and by which it shall be
bound.”—“_Rights of Man_,” page 35, 36.
“What is a constitution? it is the form of government, delineated by
the mighty hand of the people, in which certain first principles or
fundamental laws are established. The constitution is certain and
fixed; it contains the permanent will of the people, and is the supreme
law of the land; it is paramount to the power of the legislature, and
can be revoked or altered only by the authority that made it.—What
are legislatures? creatures of the constitution, they owe their
existence to the constitution—they derive their powers from the
constitution.—It is their commission, and therefore all their acts
must be conformable to it, or else void. The _constitution_ is the work
or will of the _people themselves_, in their original, sovereign, and
unlimited capacity. Law is the work or will of the legislature in their
derivative capacity.”
Judge Patterson’s charge to the Jury in the Wioming case of Vanhorne’s
lessee against Dorrance; tried at the circuit-court for the United
States, held at Philadelphia, April term, 1795.
(43} Constitutional properties are only, as has been observed at the
beginning of this letter, parts in the organization of the contributed
rights. As long as those parts preserve the orders assigned to them
respectively by the constitution, they may so far be said to be
balanced: but, when one part, without being sufficiently checked by the
rest, abuses its power to the manifest danger of public happiness, or
when the several parts abuse their respective powers so as to involve
the commonwealth in the like peril, _the people_ must restore things
to that order, from which their functionaries have departed. If _the
people_ suffer this living principle of watchfulness and controul to
be extinguished among them, they will assuredly not long afterwards
experience that of their “temple,” “there shall not be left one stone
upon another, that shall not be thrown down.”
(44) When the _controuling power_ is in a constitution, it has
the _nation_ for its support, and the _natural_ and the political
controuling powers are together. The laws which are enacted by the
governments, controul men only as individuals, but the _nation_, thro’
its constitution controuls _the whole government,_ and has a _natural
ability_ to do so. The _final controuling_ power, therefore, and the
_original constituting_ power, _are one and the same power_.—“_Rights
of Man_,” 1792. part 2d, b. 4, page 42.
(45) See late publications against the Federal Constitution.
(46) Blackstone, III. 279
(47) Idem, IV. 350.
(48) Idem, III. 381.
(49) Instead of referring to musty records and mouldy parchments
to prove that the rights of the living are lost, “renounced, and
abdicated for ever,” by those who are now no more.—M. de la Fayette,
in his address to the national assembly, applies to the living world,
and says—“Call to mind the sentiments which nature has engraved
in the heart of every citizen, and which take a new face when they
are solemnly recognized by all. For a nation to love liberty, it is
sufficient that she knows it; and to be free, it is sufficient that she
wills it,”—“_Rights of Man_,” page 11.
(50) See an enumeration of defects in trials by jury. Blackstone, III.
381.
(51) Idem, IV. 350.
(52) He who reverses the constitution, liberties and laws of his
country.——
(53) The great Bacon, in enumerating the art by which Cæsar enslaved
his country, says—“His first artifice was to break the strength of the
_senate_, for while that remained safe, there was no opening for any
person to immoderate or extraordinary power.——‘_Nam initio sibi erani
frangendæ senatus opes et autoritas qua salva nemini ad, immodica et
extra ordinaria imperia aditus erat._’ Bossuet, bishop of Meaux, takes
notice in his universal history, that the infamous Herod, to engross
authority, attacked the Sanhedrim, which was in a manner the senate,
where the supreme jurisdiction was exercised.”
(54) “If we consider what the principles are that first condense man
into society, and what the motive is that regulates their mutual
intercourse afterwards, we shall find, by the time we arrive at what is
called government, that nearly the whole of the business is performed
by the natural operation of the parts upon each other.”—_Rights of
Man._
(55) When Xerxes invaded Greece with the largest host and the greatest
fleet that ever were collected, events occurred, which being preserved
in history, convey to us a very affecting and instructive information.
While the danger was at some distance, the states of Greece looked to
remote friends for assistance. Disappointed in these speculations, tho’
the vast armaments of their enemies were constantly rolling towards
them, still there was no firmness in their union, no vigor in their
resolutions.
The Persian army passed the Hellespont, and directed its march
westward. It was then decided, that Thessaly was the frontier to be
first attacked.
The Thessalians, than whom no people had been more forward in the
common cause, hastened a remonstrance to Corinth, urging that unless
they were immediately and powerfully supported, necessity would oblige
them to make terms with the invaders.
This reasonable remonstrance roused the sluggish and hesitating
councils of the confederacy. A body of foot was dispatched who soon
occupied the valley of Tempe, the only pass from Lower Macedonia, into
Thessaly.
In a few days, these troops being informed that there was another pass
from Upper Macedonia, returned to the Corinthian Isthmus.
The Thessalians thus deserted made their submission.
“This retreat from Tempe appears to have been a precipate measure,
rendered necessary by nothing so much as by _the want of some powers_
of government extending over the several states which composed the
confederacy.”—Mitford’s _History of Greece_.
With diminished forces, the defence of the confederates was now
to be contracted. But in the conduct even of this business daily
becoming more urgent, we find them laboring under the defects of their
confederation.
“Destitute of any sufficient power extending over the whole, no
part could confide in the protection of the whole, while the naval
superiority of their enemy put it in his choice, where, when, and
how to make his attacks; and therefore each republic seems to have
been anxious to reserve its own strength for future contingencies.
Their generous hearts all beat at the call of freedom; but their
efforts were embarrassed and enfeebled by the vices of their political
constitution, to their prodigious detriment, and almost to their total
destruction. For these vices, the ardor of heroism united with love of
country could not compensate. These very vices therefore, may truly be
said to have wasted the blood of patriots, and to have betrayed their
country into the severest calamities.
If we shall hereafter by experience discover any vices in our
constitution, let us _hasten_ with prudence and a fraternal affection
for each other, to correct them. We are all embarked in the same
vessel, and equally concerned in repairing any defects.
(56) See objections against the Federal constitution, very similar to
those made in Scotland.
(57) Justice Blackstone argues in like manner, after admitting the
“expediency” of titles of nobility. “It is also expedient that
their owners should form an independent and separate branch of the
legislature”—otherwise “their privileges would soon be borne down and
overwhelmed.”—Comment. 2. 157.
(58) No member of parliament ought to be elected by fewer than the
majority of 800, upon the most moderate calculation, according to
Doctor Price.
(59) By the constitution proposed to us, a majority of the house of
representatives, and of the senate, makes a quorum to do business: but,
if the writer is not mistaken, about a fourteenth part of the members
of the house of commons, makes a quorum for that purpose.
(60) If to the union of England and Scotland, a just connection with
Ireland be added, ecclesiastical establishments duly amended; additions
to the peerage regulated, and representation of the commons properly
improved, it is to be expected, that the tranquility, strength,
reputation, and prosperity of the empire will be greatly promoted, the
monarchy will probably change into a republic, if representation in the
house of commons is not encreased by additions from the counties and
great trading cities and towns, without this precaution, an increase
of the peerage seems likely to accelerate an alteration. These two
measures should have, it is apprehended, in such a government and in
such a progress of human affairs, a well-tempered co-operation. The
power of the crown might thereby become more dignified, moderated, and
secured.
The discussion of this subject would embrace a very great number
of considerations; but the conclusion seems to approach as near to
demonstration, as an investigation of this kind can do.
(61) Against what is called equality in representation, the great
Montesquieu seems to have declared by the strongest implication. In
his Spirit of Laws, b. ch. 2, he says, that the confederate republic
of Lycia contained twenty-three associated towns: that, in the common
council, the larger towns had three votes, the middling towns two,
and the lesser only one; that they contributed to the common expence
according to the proportion of suffrages; and, that were he to give
the model of an excellent confederate republic, it should be that of
Lycia. Could the immortal spirit of Montesquieu revisit the earth, and
behold the model now offered to America, how quickly would his favorite
republic sink in his estimation. In a new quarter of the globe scarcely
heard of by the greater part of Europeans in his day, and since the
commencement of the present century, he would see men who have attained
a perfection in the science most conducive to human happiness, in that
study which was the principal occupation of his life, in which his
predecessors had acquired only a few glimmering lights, and of which it
was reserved for him to develope most of the true first principles.
(62) Whether the state of Maryland shall be divided into six districts,
for each to choose one man, or the people at large give their suffrage
for the whole six, is hereafter to be settled by the assembly. The
latter mode, on a variety of occasions, would be preferable.
(63) The importance of having the western territory determined a common
stock, needs only to be mentioned, to excite attention.
As the articles of confederation contain no provision, for adjusting
the dispute between the United States, and particular states, Maryland,
for a long time, refused her ratification. An adequate provision is
made by the proposed plan. That the United States will assuredly
institute actions against two of the states, setting up claims equally
wild and extensive, may appear from the following statement.
New Hampshire, Rhode Island, New Jersey, Delaware and Maryland, have
been always interested in making good the common claim; as they never
laid any particular claim to the territory in question.
Massachusetts, if the province of Maine be separate, is likewise become
interested in the common claim.
Connecticut, and New York, have both made cessions, which congress has
accepted. These two are therefore become interested.
Pennsylvania, although very extensive, has her limits ascertained. She
likewise is interested.
Virginia, having made a cession to congress, has since relinquished
a part of the reserved lands, or at least offered independence, to
Kentucky.
North Carolina, having once made a cession, thought proper, in the
omnipotence of her destined sovereignty, to repeal the act. Will not
the cession be determined valid, and the repeal void?
South Carolina also, it is said, has ceded part of that territory,
which lately she disputed with Georgia. In this case the United States
have their claim fortified.
But Georgia, the weakest of all, lays claim to an immense tract of
country. In this territory there are warlike and independent tribes
of the aborigines, now carrying terror and desolation towards the
heart of the country occupied by the whites. It is expected, that
this circumstance, with a consciousness of the weak foundation of her
claims, will dispose Georgia to give up without a suit, and consent to
be circumscribed within narrower limits, so soon as a proper tribunal
shall have power to enter upon a rational investigation.
N. B.—For the above statement I am principally indebted to a member of
the late continental convention, and who for a considerable time, was a
member of congress, a gentleman of established honour and accuracy.
(65) The advantage derived from this to the southern states, is easily
perceived. Have not serious apprehensions been entertained on account
of the vast superiority of the eastern states by sea?
(65) Is it possible to reflect, without indignation, on the fate of the
five per cent. impost scheme?
(66) This objection has been in some degree lessened, by an amendment,
often before refused, and at last made by an erasure, after the
engrossment upon parchment, of the word forty, and inserting thirty, in
the third clause of the second section of the first article.
(67) It appears to me a very just remark of Mr. Wilson’s, in his
celebrated speech, that a bill of rights would have been dangerous, as
implying that without such a reservation the Congress would have had
authority in the cases enumerated, so that if any had been omitted (and
who would undertake to recite all the State and individual rights not
relinquished by the new Constitution?) they might have been considered
at the mercy of the general legislature.
(68) I have understood it was considered at the Convention, that the
proportion of one Representative to 30,000 constituents, would produce
at the very first nearly the number that would be satisfactory to Mr.
Mason. So that I presume this reason was wrote before the material
alteration was made from 40,000 to 30,000, which is said to have taken
place the very last day just before the signature.
(69) It seems by the letter which has been published of Mr. Elsworth
and Mr. Sherman, as if one reason of giving a share in these
appointments to the Senate was, that persons in what are called the
lesser States might have an equal chance for such appointments, in
proportion to their merit, with those in the larger, an advantage that
could only be expected from a body in which the States were equally
represented.
(70) When I wrote the above, I had not seen Governor Randolph’s letter.
Otherwise, I have so great a respect for that gentleman’s character
I should have treated with more deference an idea in some measure
countenanced by him. One of his objections relates to the Congress
fixing their own salaries. I am persuaded, upon a little reflection,
that gentleman must think this is one of those cases where a trust
must unavoidably be reposed. No salaries could certainly be fixed now
so as to answer the various changes in the value of money that in the
course of time must take place. And in what condition would the supreme
authority be if their very existence depended on an inferior power! An
abuse in this case too would be so gross that it is very unlikely to
happen, but if it should it would probably prove much more fatal to the
authors than injurious to the people.
(71) See Coke’s Commentary upon Littleton, 110. 1. Blackstone’s
Commentary, 227 and seq.
(72) 1. Blackstone’s Commentaries, 232.
(73) I have since found that in the constitutions of some of the States
there are much stronger restrictions on the Executive authority in
this particular than I was aware of. In others the restriction only
extends to prosecutions carried on by the General Assembly, or the
most numerous branch of legislature, or a contrary provision by law;
Virginia is in the latter class. But when we consider how necessary
it is in many cases to make use of accomplices to convict their
associates, and what little regard ought in general to be paid to a
guilty man swearing to save his own life, we shall probably think
that the jealousies which (by prohibiting pardons before convictions)
even disabled the Executive authority from procuring unexceptionable
testimony of this sort, may more fairly be ascribed to the natural
irritation of the public mind at the time when the constitutions were
formed, than to an enlarged and full consideration of the subject.
Indeed, it could scarcely be avoided, that when arms were first taken
up in the cause of liberty, to save us from the immediate crush
of arbitrary power, we should lean too much rather to the extreme
of weakening than of strengthening the Executive power in our own
government. In England, the only restriction upon this power in the
King, in case of Crown prosecutions (one or two slight cases excepted)
is, that his pardon is not pleadable in bar of an impeachment. But
he may pardon after conviction, even on an impeachment; which is an
authority not given to our President, who in case of impeachments has
no power either of pardoning or reprieving.
(74) The evidence of a man confessing himself guilty of the same crime
is undoubtedly admissable, but it is generally, and ought to be always
received with great suspicion, and other circumstances should be
required to corroborate it.
(75) One of the powers given to Congress is, “To promote the progress
of science and useful arts, by securing for limited times to authors
and inventors the exclusive right to their respective writings and
discoveries.” I am convinced Mr. Mason did not mean to refer to this
clause. He is a gentleman of too much taste and knowledge himself
to wish to have our government established upon such principles of
barbarism as to be able to afford no encouragement to genius.
(76) Some might apprehend, that in this case as New England would at
first have the greatest share of the carrying trade, the vessels of
that country might demand an unreasonable freight. But no attempt could
be more injurious to them as it would immediately set the Southern
States to building, which they could easily do, and thus a temporary
loss would be compensated with a lasting advantage to us; the very
reverse would be the case with them. Besides, that from that country
alone there would probably be competition enough for freight to keep it
on reasonable terms.
(77) If this provision had not been made in the new constitution no
author could have enjoyed such an advantage in all the United States,
unless a similar law had constantly subsisted in each of the States
separately.
(78) Those gentlemen who gravely tell us that the militia will be
sufficient for this purpose, do not recollect that they themselves
do not desire we should rely solely on a militia in case of actual
war, and therefore in the case I have supposed they cannot be deemed
sufficient even by themselves, for when the enemy landed it would
undoubtedly be a time of war, but the misfortune would be, that they
would be prepared; we not. Certainly all possible encouragement should
be given to the training of our militia, but no man can really believe
that they will be sufficient, without the aid of any regular troops, in
time of foreign hostility. A powerful militia may make fewer regulars
necessary, but will not make it safe to dispense with them altogether.
[79] I presume we are not to be deemed in a state of war whenever any
Indian hostilities are committed on our frontiers. If that is the
case I don’t suppose we have had six years of peace since the first
settlement of the country, or shall have for fifty years to come. A
distinction between peace and war would be idle indeed, if it can be
frittered away by such pretences as those.