Some Observations on the Constitution

WHEN you did me the honour to elect me into the Convention, to decide for you upon the conſtitution ſubmitted to the ſtates from Philadelphia, I had not at that time examined it with that attention its importance required, and of courſe could give you no decided opinion reſpecting it. Other cares had unavoidably taken my attention from it. After you had repoſed that truſt in me it became my duty to pay it a more ſerious attention. Having given it the beſt inveſtigation that my limited capacity is capable of, and perhaps formed in ſome meaſure my opinion reſpecting it, ſubject however to alteration when I ſhall be convinced that I am in an er•or, I ſhould think myſelf unpardonable if I witheld it from you. To you it belongs to approve or correct this opinion, for although it would give me pain to be compelled to take a courſe which my own mind did not approve, yet I have too high a reſpect for your rights, too juſt a ſenſe of my duty, and too ſtrong an impreſſion of gratitude for the confidence you have repoſed in me, to act contrary to your wiſhes. Under this impreſſion I have thought proper to make to you the following unreſerved communication of my ſentiments upon this all important ſubject.

It will readily occur to you that this plan of government is not ſubmitted for your deciſion in an ordinary way; not to one branch of the government in its legiſlative character and confined under the conſtitution to the ſphere it has aſſigned it; but to the people to whom it belongs and from whom all power originates, in convention aſſembled. In this ſituation your preſent ſtate conſtitution was, or ſhould have been, formed, and in this ſituation you are of courſe able to alter, or change it at pleaſure. You are therefore to obſerve that whatever act you now enter into, will be paramount to all others either •f law or conſtitution, and that in adopting this it becomes in reality the conſtitution of the ſtate, and binding on you as ſuch. Whether it will abſolutely annul and do away that of the ſtate is perhaps doubtful; my own apprehenſion is it will not, except in thoſe caſes wherein they diſagree; in theſe it will of courſe prevail, and controul all the departments of the ſtate government, being the ulterior act of the people. You will therefore perceive it is a ſubject of great extent and importance upon which you have to decide, and that you owe it to your country, yourſelves, and poſterity, that it be well examined in all its conſequences before it is determined.

When we contemplate the cauſes that might probably have contributed to make it neceſſary to ſubmit to your deciſion the propriety of ſuch a change in your political ſituation, we are naturally led into one of the following concluſions—either that the morals of the people have become corrupted—that the paſſions of mankind by nature render them unfit for the enjoyment of equal liberty, or that the form of the government itſelf under which we live is radically defective, and capable of ſuch improvement, as will extend to us its bleſſings in a higher degree, and make them of longer duration. Believing firmly that the body of the people are virtuous, at leaſt ſufficiently ſo to bear a free government; that it was the deſign of their Creator in forming ſuch an order of beings that they ſhould enjoy it, and that it is only by a ſtrange and unaccountable perverſion of his benevolent intentions to mankind, that they are ever deprived of it, I will proceed to examine the latter hypotheſis which ſuppoſes ſuch defects in the preſent form, as to make a change adviſeable. If we find that they really do exiſt, I will then proceed to ſuggeſt ſuch remedies as will enable us comparitively to determine on the merits of that propoſed to be ſubſtituted in its ſtead. I feel myſelf deeply impreſſed with the importance of this undertaking and am too well acquainted with my own inability, even to hope that I ſhall conduct myſelf with propriety through it, but from a ſincere deſire to eſtabliſh a perfect good underſtanding between us, and prevent the poſſibility of any future anxiety on this ſubject, I find myſelf conſtrained however painful it may be, and however ungracefully I may do it, not only to avow my ſentiments reſpecting it, but the principles on which they are founded.

The preſent ſtates were ſeparate, from their firſt colonical eſtabliſhments until the encroachments of Great Britain, compelled them into an union for their defence. But as their combined efforts ſoon promiſed to erect them into independent governments, the conſideration which had united them for a time, and for the accompliſhment of one object only, became perpetual, and the wiſdom of their councils ſuggeſted the propriety of proviſions that would ſecure them from like dangers for ever—under this impreſſion they entered into the articles of confederation on the—day of—, 178. To this inſtrument or bond of union therefore we are to look for the ſtrength, or imbecility, for the perfection or demerits, of the preſent foederal government. As this is the ſyſtem whoſe defects we have to remedy, it will be proper to preſent to your view conciſely a ſummary of its powers.

The powers which have been given by theſe articles of agreement or confederation to the general government are extenſive. They are to be found principally in the 9th and the 6th articles, in the former poſitively, and in the latter negatively by a qualification of the rights of the individual ſtates. By the 9th, the United States are authoriſed to make war and peace—ſend and receive ambaſſadors—enter into treaties with alliances, provided that no treaty of commerce ſhall be made whereby the legiſlature of the reſpective ſtates ſhall be reſtrained from impoſing ſuch duties on foreigners as their own people are ſubject to, or from prohibiting the importation or exportation of any ſpecies of goods or commodities whatſoever—eſtabliſhing rules for deciding what captures ſhall be legal by land and water, and how appropriated; grant letters of marque and repriſal in time of peace—appoint courts for determining finally in all caſes of captures; appoint courts for the deciſion of territorial controverſies between ſtates and individuals claiming lands under different grants from two or more ſtates, whoſe juriſdictions reſpecting ſuch lands have already been adjuſted by the ſaid court;—coin and regulate excluſively the value of coin throughout the United States—fix the ſtandard of weights and meaſures —regulate the trade with the Indians not members of a particular ſtate—eſtabliſh and regulate poſt-offices—appoint all officers of land and ſea forces, except regimental; make rules for their government and regulation and direct their operations—aſcertain the neceſſary ſums of money to be raiſed for the ſervice of the United States appropriate, and apply the ſame—borrow money and emit bills of credit on the faith of the United States—build and equip a navy—agree on the number of land forces and make requiſitions for the ſame. Provided that none of the ſaid powers ſhall be exerciſed without the conſent of nine ſtates. By the 6th, the individual ſtates are prohibited from ſending or receiving embaſſies, entering into conferences, treaties or alliances with any foreign power, and the ſervants of the United States or individual ſtates from holding offices of profit or truſt under any foreign prince or potentate whatever—from partial confederacies without conſent of Congreſs—from keeping up troops or veſſels of war in time of peace except ſuch as ſhall be approved by Congreſs—entering into a war with a foreign power unleſs invaded by an enemy—from granting letters of marque or repriſal except after declaration of war by the United States and then under particular reſtrictions only.

Theſe articles give all the efficient powers to the United States—The 1ſt, 3d, 4th, 7th and 8th, although they eſtabliſh ſome fundamental principles on which the government is to move, and eſpecially the 8th the rule of apportionment, yet they give no real power; they are rather the rule by which the power already given is to be uſed than that they give any themſelves. The 10th, 11th, 12th and 13th, fall ſtill more under this exception or regulate other inferior objects of compact. But the 2d and 5th are of a different impreſſion. By the former, each ſtate retains its ſovereignty, freedom and independence, and every power, juriſdiction and right, not expreſsly delegated to the United States and by the latter, that of appointing, continuing, or removing its own delegates at pleaſure. Theſe are the powers, and this the form, of the preſent government.

An attentive view of the ſubject will ſatisfy us that theſe powers are really great and extenſive; they appear to have contemplated the greater part of thoſe concerns wherein it might be ſuppoſed they had a national intereſt. Having made the United States the ſovereign arbiters of war and peace, given them the right to require men and money, equip fleets and armies, to ſend and receive ambaſſadors, make treaties of alliance and commerce, with the very extenſive catalogue which I have already enumerated, except the regulation of trade there ſeemed to be little left of external policy to the individual ſtates. It is not my object to inquire here whether theſe powers ſhould be more extenſive. I may in the courſe of theſe obſervations; at preſent I ſhall examine more particularly the effect or operation of a government organiſed like this.

It is to be obſerved that by the 2d article the individual ſtates retain their reſpective ſovereignties, juriſdictions and rights in all caſes not expreſsly ceded to the confederacy. And by the 5th they reſerve the right of oppointing, continuing or removing their reſpective delegations at pleaſure. To theſe articles we are to look for the tone and character of this government, for upon theſe does its good or bad qualities depend. It is upon this point, that the preſent commotion hath taken place in America, and upon the merits of which we have to decide.

The deputies from each ſtate being amenable for their conduct, and depending on it for their hopes and proſpects, neceſſarily negociate for its intereſts. This property or diſtinction pervades the whole body, and thus their general council or the Congreſs becomes a deplomatick corps, or a corps formed of miniſters or repreſentatives from ſovereign ſtates acting for the particular advantage of that to which they belong. The efforts therefore of each ſtate, whatever may be the powers of the union over the ſeveral members that compoſe it, will be to ſhield itſelf from the common burdens of the government; and to effect this all the arts of intrigue and negociation will be conſtantly exerted. What is the obvious courſe of a government organiſed on ſuch principles? Are not the ſeeds of diſſolution deeply ingrafted in it? The moſt powerful principles of human action the hope of reward and the fear of puniſhment are in the hands of each ſtate, and whilſt mankind are ſubject to their influence, or the paſſions and affections of the human heart continue as they have been, its courſe will always be the ſame. This government it is manifeſt can never be an efficient one. Strong neceſſity and emminent danger may make it ſo occaſionally, but whenever this cauſe ceaſes to operate, its repellent principles will prevail. If this poſition is juſt, I am perhaps right in ſuppoſing it a conſequence neceſſarily reſulting from it, that the ſtronger the powers of the government are, the more repellent will its qualities be, and the ſooner its diſſolution; at leaſt certain it is that the conflict between the general and ſtate governments, will be proportionally more violent, and its or their ruin the ſooner accompliſhed, for it muſt ſoon terminate either in that of the one or the other, I mean as an efficient government. The higher toned thoſe of the ſtates were the more rapid would the progreſs be. I think I may venture to affirm that a confederacy formed of principalities would not laſt long, for the pride of princes would not brook thoſe familiarities and inſults which a free diſcuſſion of rights and intereſts, eſpecially if they interfere, ſometimes unavoidably occaſions; and when an abſolute prince takes offence he wields the ſtate with him. But this is not the caſe with democracies, for although their chief magiſtrates may be offended, yet it is difficult for them to communicate at the ſame time, the ſame paſſions and diſpoſitions to the whole community which they themſelves poſſeſs. This is a caution however which I hope it is not neceſſary to ſuggeſt here, for I am ſatisfied the ſtate governments will never take this turn of themſelves, nor whilſt that of the confederacy is preſerved and properly ſupported. But to carry this government a little further into practice.

Let us ſubmit the concerns and intereſts of different ſtates or individuals within them to this corps formed of repreſentatives from each negociating for that to which they reſpectively belong, and what kind of juſtice may we expect from its deciſions? If magazines were to be eſtabliſhed or troops raiſed and ſtationed in ſome quarter of the union for public defence, might we not expect that th•ſe arrangments would take ſtronger byas, from the combination of the day, than any ſentiment of propriety? It ſtates or individuals within them had claims founded on the ſame principles with thoſe upon which a deciſion had already been had in favour of others, are we to calculate with certainty upon a ſimilar decree? In ſhort apply it to every caſe that may poſſibly ariſe, either of ſtates or individuals, in the full ſcope of its powers, and we ſhall find its deciſions depend, more upon negociation, the bargain of the day, than any eſtabliſhed maxim of juſtice or policy.

On the other hand how are its treaties, laws, or ordinances to be carried into effect? Are they of authority and in force immediately within the ſtates as ſoon as they are paſſed? Or does it require the intervention of a ſtate law to give them validity? And if the law is neceſſary may not the ſtate refuſe to paſs it, and if ſhe does how ſhall ſhe be compelled? It is well known from the practice of all the ſtates in the confederacy that no act of Congreſs, of what nature ſoever it may be, is of force within them, until it is recognized by their own legiſlatures, prior to that event it is a nullity, and to that only does it owe its authority. This view of the ſubject demonſtrates clearly that the preſent government, in its ordinary adminiſtration, though a league of independent ſtates for common good, and poſſeſſed of extenſive powers, muſt always be void of energy, 〈◊〉 in its operation, ſometimes oppreſſive, and often altogether ſuſpended—that it can never be calculated on by foreign powers, and of courſe that they will form no treaties or compacts whatever with it, that ſtipulate any thing, at leaſt on equal terms, that in fine very little dependence can be placed in it by the ſtates themſelves, for deſtitute of the power of coercion, to ſay nothing as to the juſtice or propriety of the meaſures themſelves, theſe will not be forward to comply with its demands, whilſt thoſe may refuſe with impunity. On the other hand the illuſtrious event which hath placed them in the rank of independent ſtates demonſtrates with equal certainty, that it is competent to external defence, and perfect ſecurity from abroad, for how otherwiſe could it have been atchieved? Theſe are the defects or the principal defects of the preſent government, and they are inſeparable from a league of independent ſtates, for to that circumſtance, and that alone they are to be attributed. We have then to weigh theſe evils, and compare them with the probable benefits and dangers that may accompany a change, and then ſee in which ſcale the balance preporderates.

It may be now aſked are we reduced to this alternative either to ſubvert the ſtate ſovereignties or ſubmit to theſe evils? Is the ſtate ſovereignty a vain and illuſory hope, is it incompatible with its own and the general intereſts of the confederacy? Or is there any other alternative? The practice of nations and the field of enquiry is open before us, and we have every thing that is ſacred and dear to mankind depending on the event. Two ſpecies of remedy only preſent themſelves to my mind, and theſe contemplate either a complete annihilation of the ſtate governments, or a partial one or conſiderable reduction of their powers. A complete annihilation and the organization of a general government over the whole, would unqueſtionably remove all the objections which have been ſtated above, and apply to it as a foederal government; and I will be free to own that if it were in reality a practicable thing, there is no object which my mind has ever contemplated, the attainment of which would give it ſuch high gratification. To collect the citizens of America, who have fought and bled together, by whoſe joint and common efforts they have been raiſed to the comparitively happy and exalted theatre on which they now ſtand; to lay aſide all thoſe jarring intereſts and diſcordant principles, which ſtate legiſlatures if they do not create, certainly ſoment and increaſe, arrange them under one government and make them one people, is an idea not only elevated and ſublime, but equally benevolent and humane. Whether it contains within it a territory as extenſive as the Ruſſian or German empires, or is confined in its operation to the narrow ſca•e of their ſmalleſt principa•lities or provinces, yet it is the buſineſs of ſtate legiſlation to purſue its deſtined courſe "the intereſts of thoſe who live under it." For a legiſlature to contemplate other objects, and make a ſacrifice of their own for the good of other people, or even decline availing itſelf of the legitimate exerciſe of its powers for that purpoſe, upon every opportunity which chance or fortune may preſent in its way, is a degree of liberality to which the human heart hath not as yet attained. A ſociety of philoſophers of the antient ſtoi•k ſect might perhaps be capable of ſuch extended philanthropy, but this ſect is now altogether at an end, and at its height, never formed but an inconſiderable part of any community, and wa• by all the reſt of the world conſidered as affecting objects without the pa•• of human nature. How much more delightful therefore is it to the mind to contemplate one legiſlature organized over the whole continent, cantaining all the free inhabitants of the American ſtates within it, nouriſhing, protecting, and promoting their intereſts in every line and extending its genial influence to every part; commerce flouriſhing, arts encreaſing, lands riſing in value, with all thoſe other happy concomitants that attend a well formed and wiſely directed government, than thirteen different legiſlatures, in purſuit of local objects, acting upon partial and confined c•nſiderations, without ſyſtem or policy, jealous of their particular rights, diſſatisfied with, and preying upon each other. If it were practicable, I ſhould embrace this change with the utmoſt pleaſure, and conſider it the goal at which all our efforts ſhould bend, the polar ſtar that ſhould direct all our movements. I ſhould conſider the abolition of the ſtate legiſlatures as a moſt fortunate event for America, and congratulate my country on the commencement of a new aera in her affairs from whence to date the dawn of better hopes and happier days. But is it practicable, can it be accompliſhed? Can a legiſlature be organized upon ſuch principles as to comprehend the territory lying between the Miſſiſſ•ppi, the St. Lawrence, the Lakes, and the Atlantic ocean, with ſuch a variety of ſoil and climate, contain within it all the vital parts of a democracy, and thoſe proviſions which the wiſdom of ages has pointed out as the beſt ſecurity for liberty, and be at the ſame time a ſtrong, efficient, and energetic government? Would it be poſſible to form in every reſpect a complete conſolidation of intereſt and how otherwiſe would its operation affect the weaker party? Or to accommodate its legiſlative acts ſo as to ſuit thoſe of a local kind that were variant in the nature of thi•gs? To form a ſyſtem of revenue, by direct taxation and exciſe, regulate the mode of collection, ſuperviſe it, without the eſtabliſhment of a train of officers, and tribunal under tribunal, that would not be enormouſly expenſive, free from more than ordinary impoſition, and preſerve the ſpirit of the government? Seperated a the diſtance of near 1200 miles, ſuppoſe the diſpoſitions to do right the beſt that nature can infuſe into the human heart, generally ſpea•i•g in the operation of the gover•ment, will the man of Georgia poſſeſs ſufficient informatio• to legiſlate for the local concerns of New-Hampſhire? Or of New-Hampſhire for thoſe of Georgia? Or to contract it to a ſmaller ſpace of New-York for thoſe of Virginia? Wi•l not of courſe moſt of its meaſure be taken upon an imperfect view of the ſubject? A wiſe legiſlator ſhould poſſeſs a preciſe knowledge of the ſituation and intereſts of all the territory and of the ſtate of ſociety, manners, and diſpoſitions of the people within it committed to his care. Some men perhaps to whom a kinder fortune had diſpenſed her more liberal gifts, who had devoted their earlier life to travels, general ſcience, and thoſe reſearches that were particularly neceſſary for it, might ſucceed, but unfortunately for us the moſt ſanguine admirer of this plan, cou•d not promiſe to America that her national councils, ſhould always be filled with men of this ſtamp. I would not wi•h to diſcolour •his plan of a complete national governme•t, acting in a 〈◊〉 for the common good, to the excluſion of ſubordinate legiſlatures, ſo delightfu• in theory, with t•e reverſe of this picture, nor to depaint thoſ• conſequences which might reſult fr•m its maladminiſtration, if inſtead of the beſt qualities that are the portion of huma•ity, it ſhould be its fortune to have its councils fi•led, with men remarkab•e for their ignorance, or any great malignity of heart, contending againſt difficulties, under its beſt form and with its beſt h•p•s, 〈◊〉 perhaps are inſurmo•• table, what wo••d be ••••tuation and iſſue in that event? ••s thi• ſubject is of great importance and lead• to a deciſion up•• an important t••t in the plan of government now before you, it will be proper to give it a more particular inveſtigation.

Perhaps an attention for a moment in this reſpect to thoſe politi••l eſtabli••ments which have been erected in 〈◊〉 quarters of the globe, in 〈◊〉 and modern times, may fur•i•h an inſtructive leſſon, upon the preſent occaſion. In but few inſtances, and thoſe at diſtant intervals of time, hath a democracy or government of the people ever been eſtabliſhed. To what cauſe it is to be attributed, philoſophers and ſtateſmen may differ, but it is an unqueſtionable truth, that there hath been a conſtant effort in all ſocieties, to exterpate it from off the face of the earth. The conteſt hath been often violent, and the manly exertions which the friends of equal liberty, have made againſt this diſeaſe of human nature, is the great, the inſtructive ſubject of hiſtory. They have had to contend againſt difficulties thrown in their way by all ranks of ſociety: If the poor and thoſe in moderate circumſtances only, where an union might have been e•pected had united, a tyranny had never been erected. But the ignorance, the folly, and often times the vices of the lower claſſes have perhaps favoured this tendency as ſtrongly as the luſt for dominion and power in the wealthy. To illuſtrate this poſition by a review of the commencement, progreſs, and decline of thoſe nations with which hiſtory furniſhes us examples, with the cauſes that have contributed to hurry them to this their laſt ſtage, would not only preſent to your view a melancholy monument of the weakneſs of human inſtitutions, but lead me beyond the bounds of the preſent enquiry. Be aſſured however there is no fact better eſtabliſhed by hiſtory, than this tendency or effort in all ſocieties, to defeat the purpoſe of their own inſtitution, and terminate in deſpotiſm. If then we are not the unfaithful guardians of thoſe rights, which an all gracious providence hath beſtowed upon us, ſhould we not attend to every circumſtance that may contribute to preſerve them? And will it be queſtioned, that the extent of territory is one of thoſe that will have no influence on the ſubject? The governments that have been purely democratic, to which only we ſhould reſort for ſatisfactory information upon this head, if any ever were, are but few. In ſeveral it is true the people have had ſome ſhare of power, as in that of Rome. But it cannot be queſtioned that in this the Nobles or ariſtocracy had the prevailing influence. The endleſs quarrels between the different branches or rather orders of the people, the Senate and plebians, is perhaps the real cauſe of the perpetual warfare and extenſive conqueſts, made by this rapacious miſtreſs of the world. When the people became incenſed againſt the Senate, as they often had reaſon to be, the latter had always ſufficient addreſs, to give their paſſions other objects to act on, by turning them againſt foreign powers. With this view it ſeems to have been a political maxim with that branch, in whoſe hands the executive authority was alſo lodged, never to be at peace with all nations at the ſame time, and in this they ſucceeded tolerably well, for from the commencement to the final diſſolution of the empire, the temple of Janus, always open in time of war, if we may credit the tradition of their beſt hiſtorians, was hardly ever cloſed. But ſo ſoon as the whole globe had acknowledged her authority, and bowed beneath the yoke, the immenſe fabric ſhe had thus raiſed fell to pieces. External oppoſition that had raiſed it to the height it had attained, having ceaſed, its foundation was taken away. There was no principle within it to unite its parts together. From this it is to be preſumed that if her government had been organized upon harmonious principles, and made the people happy under it, her dominion would never have extended over more than one-ten•h the territory it did. But be this as it may, the government of Rome acknowledged diſtinct orders of people, in which indeed the ariſtocracy prevailed, and can of courſe furniſh n• example for us. This may be ſaid of Lacedemon and of Carthage, for according to the opinion of a profound hiſtorian and obſerver on the ſubject of government, that of Carthage was alſo divided and the greater portion of power taken from the people and placed in the ha•ds of the ariſtocracy. If any ever were, Athens, Thebes, and Corinth, were for• time, 〈◊〉 ••••cracies. But ſhall we draw our concluſion from their example, whoſe juriſdiction was more confined than that of ſome of our ſmalleſt ſtates? In ſ••rt, let us contemplate what forms, in what countries and times we pleaſe, where the rights •• the people, and the ſpirit of liberty, were in any degree preſerved, and we have the moſt ſolemn admonition to beware even making the attempt. The monarchy of Britain in which the executive power is armed with almoſt deſpotic authority, comprehends within it a territory ſmaller than that of this commonwealth, and yet it is believed its adminiſtration is happier than if it were more extenſive. Even the king of France, ſenſible that his government will be happier for his ſubjects, and more faithful and beneficial for himſelf, has ſhewn a diſpoſition to re-eſtabliſh the provincial aſſemblies for this purpoſe, yet it cannot be denied that his powers are otherwiſe ſufficiently great, or that any monarch was ever, in a greater degree, or more deſervedly beloved by his people. But if theſe examples are not ſufficient to warn us of the fatal conſequences that will attend the veſting ſuch powers in the Congreſs, let us turn our attention to thoſe nearer at home, and which perhaps will make a deeper impreſſion on our minds, and do we not behold the province of Maine ſeparating from Maſſachuſetts, and Vermont from New York, Wyomin from Pennſylvania, and the diſtrict of Kentucky from Virginia, on this very principle, with others no leſs ſtriking that might be enumerated.

It is true the improvement of government under this form, by repreſentation, the diſcovery of which is attributed to modern times, might make ſome difference in this reſpect, but are there no bounds within which it ſhould ſtill be reſtrained? Shall it attempt things that ſeem from the concurrent teſtimony of all hiſtory to be the appropriate object of deſpotiſm? Maladies that are incurable after they have afflicted the body with all the pain and anguiſh incident, to a frail and feveriſh being, exhauſted its efforts, and worn out its conſtitution, complete the work by terminating its exiſtence. This government too, after having experienced the viciſitudes of fortune that might accompany its natural imperfections, of laws badly formed and indifferently executed, of anarchy diſorder and confuſion, after having worn out and broken the ſpirits of the people, would alſo have its end. But what form it would then aſſume is left for time to develope. The diſeaſes of every government ſuggeſt its remedy. Other circumſtances it is true give it a byas, but theſe have a principal influence in direct•ng its courſe. Thoſe of the federal ſyſtem and which owed their birth and enormity to the want of ſtrength in the federal head, had diſpoſed the people to agree to an annihilation of their ſtate governments, which yielded to the preſent one. Had this change been accompliſhed, by the deſigns of wicked and abandoned men, by the uſurpations of a tyrant, o• the ſeductions of art and intrigue, it is to be preſumed, and the experience ••ther countries hath approved it, that the people would now return to that they had forſake ••ith a degree of zeal and fervor proportioned to the ſufferings they had borne. But if a long and patient experience had ſhewn its defects, a calm and diſpaſſionate appeal had been made to their underſtandings, and a recollection of the great calamities, it had inflicted on them, demonſtrated it was neither calculated, for the care of their liberties, their ſafety or common intereſts, they would make a new experiment and take a different courſe. From the cauſes above ſtated the incapacity of the legiſlative branch to form happy, wiſe, or uniform laws for the government of a territory ſo extenſive, and of a people in purſuit of objects ſo oppoſite in their nature, had perhaps already often clogged its operations and ſuſpended its courſe. This had gradually alienated the affections of the people and created in them a contempt for this branch of the government. The powers of the executive had of courſe been proportionably increaſed, for it is natural for the latter to ſupply the defects of the former. Accuſtomed to behold it in miniature, and to derive relief from its friendly interference, the people are at length prepared to have recourſe to a Royal government, as the laſt reſort the only ſafe aſſylum for the miſerable and oppreſſed. And this perhaps would be the iſſue of the preſent government; and for theſe reaſons I ſhould dread its eſtabliſhment over theſe ſtates. For to howe•• low a• pitiable a condition we may have fallen; however deſervedly we may have acquired the contempt and ſcorn of nations, yet I had rather ſubmit in peace and quiet, to thoſe reproaches which the proud and diſdainful may throw upon us, than by commencing on a ſtage upon which the fortunes of all nations have been wrecked, however ſplendid and meteor like our tranſient exhibition might be, riſk the enjoyment of thoſe bleſſings we now poſſeſs

But may not ſome middle courſe be ſtruck, ſome plan be adopted to give the general government thoſe rights of internal legiſlation neceſſary for its ſafety, and well being, in all caſes, and yet leave to the ſtates other powers they might exerciſe to advantage? If by this it is intended to comprehend the right of direct taxation and exciſe with the abſolute controul of the reſources of the union, it will be eaſy to perceive it conſequences. Thoſe who are in any degree acquainted with the principles of government, or with thoſe of the human heart well know that upon this point, the equal diſtribution of the reſources of the union, between the two governments, will their balance depend. If you place the whole into the hands of one, it will require no caſuiſt, no great degree of depth in this ſcience to determine which will preponder•te. Acting on the bowels the body will ſoon decay and die away. The pageant ornaments and trappings of power will not laſt long, for the reaſon and good ſenſe of mankind turn with diſguſt upon the mockery of empty forms. Such an arrangement would therefore in my apprehenſion, embark us on a more perilous and ſtormy ſea, than even a complete annihilation of the ſtate governments.

If then ſuch a government as I have above deſcribed in either view preſents an impracticable alternative, or ſuch a• one as we ſhould not without a nearer and better view of it embrace, the other mode only remains or that which propoſes the organization of a general government over the ſtates forming a part of and acknowledged by the conſtitution of each, leaving at the ſame time a qualified government in each ſtate for local objects. Let us examine this then ſince it is the only ſafe or even plauſible courſe for as to take.

To organize a general government, that ſhall contain within it a particular one for each ſtate, or in other words, to form a conſtitution for each ſtate, which ſhall acknowledge that of the union, is no eaſy thing, for there never was an example of the kind before. The amphictrionic council, Achaean, Belgic, or Helveti• confederacies were but leagues of independent ſtates, ſomewhat ſimilar to the preſent one. To mark the preciſe point at which the p•wers of the general government ſhall ceaſe, and that from whence thoſe of the ſtates ſhall commence, to poiſe them in ſuch manner as to prevent either deſt•oying the other, will require the utmoſt force of human wiſdom and ingenuity. No poſſible ground of variance or even interference ſhould be left, for there would the conflict commence, that might perhaps prove fatal to both. As the very being or exiſtence of the republican form in America, and of courſe the happineſs and intereſts of the people depend on this point, the utmoſt clearneſs and perſpicuity ſhou•d be uſed to trace the boundary between them. The obvious line of ſeparation is that of general and local intereſts. All thoſe ſubjects that may fall within the former diſtinction ſhould be given to the confederacy, and thoſe of the latter retained to the ſtates. If the federal government has a right to exerciſe direct legiſlation within the ſtates, their reſpective ſovereignties are at an end, and a complete conſolidation or incorporation of the whole into one, eſtab•i•hed in their ſtead. For in government it is, as in phiſicks, a maxim, that two powers cannot occupy the ſame ſpace at the ſame time. Let this therefore be the characteriſtic line of the diviſion; internal legiſlation or the management of thoſe concerns which are entirely local ſhall belong to the ſtates, and that of thoſe which have a foreign aſpect, and in which they have a national concern, to the confederacy. In forming a conſtitution on theſe principles, the ſame rule ſhould be obſerved, that has been in forming thoſe of indivi•ual ſtates; defining the powers given and qualifying the mode, in which they ſhall be exerciſed. All powers not ceded it is true belong to the people; but thoſe given in a conſtitution are expreſſed in general terms, as that the Congreſs ſhall levy and collect duties; this involves in it the right of making laws for the purpoſe, for the means are included in the power; otherwiſe it is a nullity. The ſpecies of evidence and the mode of tryal are ſubordinate objects under it, and does it not follow that the Congreſs might regulate theſe at pleaſure? How are we ſecured in the trial by jury? This moſt excellent mode of tryal which has been found, in thoſe few countries where it has been adopted, the bulwark of their rights, and which is the terror of diſpotic governments, for it diſarms them of half their power, is but a matter of police, of human invention; if then we gave general powers unleſs we qualified their exerciſe by ſecuring this, might they not regulate it otherwiſe? I would not be underſtood to inſinuate it would be the caſe, but that it were poſſible is improper. The ſpirit of the times might ſecure the people of America perhaps for a great length of time againſt it; but fundamental principles form a check, even when the ſpirit of the times hath changed, indeed they retard and controul it. As it is with the trial by jury ſo with the liberty of conſcience; that of the preſs and many others. As to the powers themſelves, the diſtinction being drawn, the enumeration would be of courſe. To thoſe of the former Congreſs ſome few might be added, or from thoſe of the conſtitution, ſome few taken away, for nominally there is not ſo great a difference between them as ſome people ſuppoſe. To the former for inſtance, let the abſolute controul of commerce with the revenues ariſing from it be added. Let the right of apportionment be as in the conſtitution, for the ground on which the ſtates have met on that point is certainly a happy compromiſe being that indeed which had been long recommended by Congreſs. Let them regulate the diſciplining and training of the militia—the calling them forth and commanding them in ſervice; for the militia of a country, is its only ſafe and proper defence. All countries are more or leſs expoſed to danger, either from inſurrection or invaſion and the greater the authority of Congreſs over this reſpectable body of men, in whoſe hands every thing would be ſafe, the leſs neceſſity there would be, to have recourſe to that bane of all ſocieties, the deſtroy•r of the rights of men, a ſtanding army. But it may be urged the revenues from the impoſt would not be ſufficient for national purpoſes, and that with•ut the right of direct taxation, the government would be forced to have recourſe, to the expedient of requi••tions, the inemcacy of which had a ready been ſufficiently experienced. The poſition in the firſt inſtance, as to the inſufficiency of the revenues is doubtful; but the apprehenſion of the ſtates neglecting requiſitions u•der this, as they have done under the late government ſtill more ſo. When the United States became in effect a national government, by being incorporated with thoſe of the ſtates, poſſeſſed conſiderable revenue, had at their command a fleet and army, with the abſolute controul of trade; I cannot but believe that their conſtitutional demands, or requiſitions, would be complied with. Let the individual ſtates alſo be reſtrained from exerciſing improper powers, making war, emitting paper bills of credit and the like. All reſtraints that were neceſſary for the wiſe adminiſtration of a good and virtuous government, would have my ready aſſent. It is not my intention to draft a form, a general idea is all I aim at, and in this perhaps I am tedious.

Having defined the powers, marked the line between, and ſecured as far as poſſible the harmony of the two governments, by making the former a part of the latter, it will be neceſſary to organize it upon ſuch principles, as to ſecure the wiſdom and happineſs of its adminiſtration; for I preſume it does not neceſſarily follow, becauſe the conſtitutional acts of the government will be executed and become the laws of the land in each ſtate that our reſearches ſhould be at an end, and that we ſhould conclude we had remedied all the defects of the preſent one. On the contrary our anxiety ſhould be increaſed tenfold. From that our ſafety was to be attributed to its imbicility; but from this we ſhould not be able to ſhelter ourſelves under that protection. We ſhould therefore be the more zealous, proportioned to the prize we have at ſtake, to diſtribute the powers and poize the government, ſo as to ſecure equal juſtice in all its acts, to every part of the confederacy; for wretched and forlorn will the condition of that be, which ſhall not find itſelf equally ſecure under the protection, and in the enjoyment of its bleſſings, with every other part. From royalty itſelf, where the power is concentered in but one perſon, fluctuating in its ſyſtems and unſettled in its courſe, ſometimes a ray of benevolence and even of juſtice is reflected on thoſe whom it had marked out as the object of its reſentment. Nature has caſt into but few characters ſuch malign and unfriendly diſpoſitions, that their revenge cannot be fatiated. But from a combination of ſ•ates, acting ſyſtematically in purſuit of particular and local intereſts, wielding in their hands the powers of the government, and of courſe ſecure not only from cenſure but of the approbation and applauſe of thoſe whom they ſerved, however ſeverely the attainment of the objects it contemplated, might bear upon the intereſts of the unfortunate minority, yet from their juſtice, it is to be feared, that neither moderation nor even me••y could be expected. But the preſent ſyſtem is that we have to remedy and we ſhould never looſe ſight of its defects. If the new government ſhould be organized in the ſame manner with the old, conſiſt of one branch only, each ſtate appoint her own delegates and recall them at pleaſure, I am ſatisfyed it would in the adminiſtration in Congreſs, or paſſage of the acts, be found in the experiment in that reſpect, juſt ſuch a government as the other. There would be the ſame negociation, intrigue and management for the advantage of each ſtate that now prevails. Its movements would be as flow and its deciſions as unjuſt as they ſometimes have been. In ſhort it would ſtill be a government of ſtates in every reſpect and not a national one. How then ſhall we guard againſt, check and controul t•is intolerant and deſtructive ſtate ſpirit? How infuſe into all its departments a love, reſpect, and dread of the whole, for upon this very thing ••pends?

It has been long eſtabliſhed by the moſt celebrated writers, but particularly Iluſtrated and explained by the Preſident Monteſquieu and Mr. •ocke, that the diviſion of the powers of a government over one ſtate, or one people on•y, into t•ree branches, the legiſlative, executive, and judiciary, is abſolutely neceſſary for the preſervation of l•berty. This is now admitted by all who are not the friends of ••potiſm, and I am perſuaded it has already been demonſtrated in the courſe of theſe obſervations, that ſuch a divi••on is, if poſ••ble, more neceſſary in a government to be orga••z• •o over more than one. Taking this poſ•tion then as eſtabliſhed, I wil• proceed to an examination of the principles upon which this organization ſhould be formed.

If the ſtates as ſuch or in their legiſlative character appoint any of the officers of this government, the effect will be the ſame, provided the rotative principle is preſerved, which will I hope never be given up, that has already been experienced; for in the appointment is involved that of reſponſibility. It ſhould therefore proceed from the people immediately, or by means of electors choſen for the purpoſe. This will make them amenable to the people only for their conduct, or to ſuch conſtitutional tribunals where they are practicable, as they ſhall eſtabliſh to take cognizance of offences. This we apprehend would contribute much to the eſtabliſhment of a national government; each would move in the ſphere the conſtitution had appointed for it, and be accountable to the people only for their conduct, the high and pure ſource, from whence they reſpectively derived their authorities.

The legiſlative branches are in all democratic governments, and of courſe would be ſo in this, the immediate repreſentatives of the people. They ſhould therefore be kept as dependent on them as poſſible, having in all reſpects the ſame intereſts with themſelves. For offences in theſe branches the general government can provide no puniſhment, for there can be no tribunal under it, to take cognizance of them. Charges of corruption or proſecutions for it, or other offences, committed by thoſe in theſe branches, ſhould not be allowed from thoſe in the others, for this might either unite them in mal-practices againſt their country, or create endleſs ſtrife between them, and thereby deſtroy the balance of the government. A free people are the only proper judges of the merits of thoſe who ſerve them, and they only ſhould bring them to juſtice. This ſhews the neceſſity of frequent elections. The members of each ſhould in my opinion return to the body of the people, thoſe of the houſe of repreſentatives at the expiration of every two years, and thoſe of the ſenate of every four years, capable however always of re-election. Both theſe branches ſhould if poſſible be filled on the principles of repreſentation from all the ſtates. For the houſe of repreſentatives, the rule adopted in the conſtitution, is perhaps the proper one. Let twice that number, or a ſtill greater ratio of numbers to that of repreſentation, be the rule for the ſenate. The members or both branches ſhould be incapable of appointment to other offices whilſt in theſe, otherwiſe a wide door will be left open for corruption. This is not an idle or viſionary precaution, but in a great meaſure the pivot, upon which the upright and faithful adminiſtration of the government will depend. The experience of Britain hath demonſtrated, how often the moſt valuable intereſts of the people, have been bartered away, by leading members of the houſe of commons for a ſeat in the houſe of peers, or ſome lucrative office in the government; how much greater then ſhould our apprehen•ion be, of danger in the preſent inſtance, when we recollect that the government is organized upon ſuch principles as to acknowledge no reſponſibility to the ſtates, and comprehends within it ſuch an extent of territory, as to put it out of the power of thoſe who inhabit its extremities, to have any knowledge of the conduct of their ſervants! The poſſibility of this kind of traffic ſhould therefore be abſolutely prohibited.

But the power of the legiſlature ſhould be confined to thoſe objects, which were intirely legiſlative in their nature, as the regulation of trade, requiſitions for money, and the like. The ſoundeſt authorities and the melancholy experience of our ſtate governments have ſhewn the propriety of this reſtraint, in a conſtitution over one ſtate, and for reaſons that are obvious the expedience, will be the more urgent, in the preſent inſtance. Its natural effort in all caſes is, to graſp to itſelf all the powers delegated from the people, and to proſtrate the other branches before it; ſtimulated on by the ſtate ſpirit, which will in ſome degree ſtill remain, the difficulty here will be proportionably increaſed. The ingenuity of man can deviſe no other, without an appeal to the people, which if poſſible ſhould always be avoided, than that of giving the Executive, the other active branch an abſolute negative on the laws; for otherwiſe its enterprizes muſt be ſucceſsful. Many reſtraints might be diſignated by the conſtitution, but without effect. And from this at the ſame time that it preſerved the balance of the government, no injury could be ſuſtained Againſt the encroachments of the Executive the fears and apprehenſions of the whole continent would be awake, with a watchful jealouſy they would obſerve its movements. But againſt the legiſlature (if we may reaſon by analogy of that branch in this) from thoſe in other governments, no ſuch apprehenſions could be entertained. Its movements comparitively would be accompanied with the confidence of the people. Every incroachment upon its rights would be popular. In every conteſt between them it muſt of courſe yield the ground. In ſhort unleſs the Executive had a negative on the laws of the legiſlature, it would ſoon exiſt only in name.

The right of impeachment and the mode of trial are of the firſt importance in this government. The former, if with the people or even the ſtates themſelves, would never be exerted or greatly abuſed; it ſhould therefore belong to the houſe of repreſentatives. And the latter ſhould be veſted in a court of that high confidence and reſpectability of character, as to partake of none of thoſe paſſions that ſway the bulk of mankind. Unconnected by office, and of courſe no way intereſted in the event; unacquainted with the crime except as it might appear before them by ſatisfactory teſtimony, they ſhould hear calmly and judge diſpaſſionately upon the merits of the cauſe. From their deciſion the guilty would receive a fair condemnation, or the innocent be reſtored again to the confidence of their country, and the people return ſatisfied that their paſſions had been awakened, and their fears alarmed without any juſt foundation. The ſentence ſhould be final, and not ſhifted off to another tribunal. A further proſecution may appear odious, and the juſt reſentments of the people calm away, and totally ſubſide. For theſe reaſons the ſenate ſhould form the court of impeachment.

But although the legiſlative branch ſhall be elected by the people, and amenable to them alone for their conduct, yet as the ſtate ſovereignties though qualified, will ſtill remain, and of courſe the ſtate ſpirit, in contradiction to a foederal one, from neceſſity be more or leſs influential in its councils, we ſhould turn our attention to the other branches of the government, as our firm reſource. The Executive is that upon which, in many reſpects, we ſhould reſt our hopes, for an equal, a foederal, and a wiſe adminiſtration. Every poſſible effort ſhould therefore be uſed to expell from the hearts of thoſe who fill it, a preference of one part of the community to another. The experience of other governments hath taught us, it is poſſible to deviſe checks, which from motives of policy and private intereſt, will even make bad men faithful public ſervants. The proſpect of reward and the fear of puniſhment, as has already been obſerved, are the moſt powerful incentives to virtuous action. It ſhould therefore be ſo organized, as to give every quarter indeed every man of the union, under the influence of theſe principles, as to thoſe who fill it, an equal acceſs to the human heart, whenever this equipoiſe is deſtroyed, and this high character taught to look up to this, or that ſtate, or combination of ſtates for the ſmiles or the frowns of government, from that moment will its oppreſſion be felt, and a dreadful anarchy inſue. And if you take from thoſe whom the choice of their country hath called forth to this high ſtation, the hope of further favour, and mark to them the extent of ſervice, after the completion of which the door ſhall be forever cloſed upon them, in that degree will you deprive yourſelf of one of the principal inſtruments by which you are to preſerve the equilibrium, and ſecure the public ſafety. Diſcharged forever from the ſervice of the United States, will not the approbation of the union, ceaſe to be the ruling paſſion, and an accommodation to ſtate intereſts take its place and influence many of the public meaſures? For theſe reaſons I could wiſh to ſee the right of impeachment, extended upon as liberal ground as poſſible, given for inſtance to the repreſentatives of one third of the confederacy; and I could likewiſe wiſh to ſee the citizen at the head of this department, capable of re-election at the expiration of his ſervice which ſhould be at the end of every three or four years, ſo long as he ſhould merit the confidence of his country.

The mode of election ſhould alſo be a fundamental in the organization of this branch. If the command of this office was placed within the reach of court influence, the moſt alarming conſequences were to be apprehended from it. If the ultimate deci••on ſhould happen at the metropolis, it is eaſy to be perceived what an opportunity this would preſent for venality and corruption. It muſt be a great object particularly for either France or Britain to have the friend of their reſpective courts in this office, poſſeſſed of ſuch extenſive powers and which might diſpenſe ſuch important favours to them. The influence of the preſiding magiſtrate himſelf, eſpecially within the town in which he had for ſome time reſided, and to whoſe citizens he had rendered many ſubſtantial ſervices, and who of courſe would be averſe to the introduction of a novus homo among them, would not be inconſiderable. In addition to which it is to be obſerved, that it forms a departure from a principle which ſhould prevail through the whole, but particularly in the organization of this branch, a dependance of this officer, for every thing eſtimable among mankind, upon the people of America. By the people therefore ſhould the appointment be made, not in perſon, but by the means of electors choſen for the purpoſe. To prevent the poſſibility of any interference, or byas on their free election, that of the electors by the people, ſhould be on the ſame day in every ſtate, and that of the Preſident by the electors likewiſe on the ſame day and at ſome ſpecified place in each, unleſs an invaſion, or other extraordinary circumſtance ſhould prevent it; in which caſe perhaps the electors themſelves, or the executive of the ſtate might appoint ſome other. Whatever time might be employed in this mode of election is immaterial; it is of the firſt importance, and ſhould never be diſpenſed with, that he be thus appointed.

But high power in the Executive branch require in every reſpect, a direct and immediate reſponſibility; for although it ſhould be ſo organized as that whilſt to thoſe who fill it, and act with propriety in the diſcharge of its functions, the door ſhould be left open for a continuance of public favour, yet the ſword of juſtice ſhould be held conſtantly ſuſpended over the heads of thoſe, who ſhall be convicted of having baſely ſacrificed the intereſts, or made attempts upon the liberties of their country. There ſhould be no conſtitutional reſtraint, no equivocation of office, to ſhield a traitor from the juſtice of an injured people. No circumſtance to blunt or turn aſide the keen edge of their reſentment. With the charge ſhould the powers of his office ceaſe. He ſhould ſtand alone unſupported, and unprotected except by the integrity of his heart and the rectitude of his conduct. For theſe reaſons the executive power ſhould be veſted altogether in one perſon; unreſtrained by a conſtitutional council, its operations will be more eaſy and regular, and its reſponſibility the greater and more immediate. And for theſe reaſons if there is a conſtitutional council it muſt be from its nature the moſt improper tribunal, that can be formed or conceived, for the tryal of the offences of the principal, ſince they muſt be either partakers of the crime, or ſome way or either a party intereſted in it.

With an Executive organized on theſe principles, being independent of the legiſlature, and in a very reſponſible ſituation, I ſhould be well content to intruſt great powers, becauſe I ſhould calculate with tolerable certainty upon an honeſt and a wiſe execution of them. The conſtitution perhaps ſuggeſts thoſe, with ſome exceptions that are proper; whether it would be ſafe to give it the abſolute controul of the fleet and army at all times, in peace and war, the ordering them out, and laying them by, without conſent of the legiſlature, or even knowledge, is at leaſt doubtful. In Great Britain this power may be committed to the King with propriety; but he is the Lord of hereditary dominions, and tranſmits the inheritance in his lime forever. By betraying his truſt he might loſe his crown, and perhaps gain nothing, even if he eſtabliſhed deſpotiſm. But with the Preſident who perhaps depends on a quadriennial election the caſe is different. It is certainly a formidable power to place in the hands of any one public ſervant. I would however in no event interpoſe the opinion of the legiſlature, ſo as to controul the movements of theſe forces, but merely to affix the condition, or emergency, upon which his abſolute power over them ſhould commence. As I would repoſe the whole truſt of this department in one officer, ſo he alone ſhould be reſponſible for all its tranſactions. He might aſſociate whom he pleaſed, of the wiſe men of America in his councils, but they ſhould be of his own aſſociation. An allowance might be made him, to compenſate them for their ſervices, for which he ſhould be accountable.

Controverſies between independent nations are uſually ſettled by the ſword. It is to the misfortune of mankind that no tribunal has ever been eſtabliſhed to adjuſt their interfering claims, and inforce its decrees. It has been the defect of all other confederacies, of whoſe inſtitutions hiſtory has given us any account, that although attempts in ſome have been made in this reſpect to preſerve the harmony, and leſſen the calamities of mankind, yet the courts to wh•m their controverſies have been ſubmitted, the council or repreſentative body of each, have not been organized on ſuch principles as to inſure juſtice in all their deciſions. To this circumſtance perhaps many of their calamities were to be attributed. The framers of the confederation in ſome degree alſo fell into this error for thoſe only or a territorial kind were to be ſubmitted to a foederal court. Under that form its inconveni•••ce has been often very ſenſibly felt, but under the preſent it would be inſupportable. Great care ſhould therefore be uſed, in the organization of this branch, to remedy this defect. T•e judiciary in this, as in all free governments, ſhould be diſtinct from, and independent of the other branches, and equally permanent in its eſtabliſhment. Performing its appropriate functions, the extent of its authority ſhould be commenſurate with theirs. As it forms the branch or a national government, ſo it ſhould contemplate national objects only. Whatever caſes might ariſe under the conſtitution, the laws of the legiſlature, and the acts of the Executive in conformity thereto, (however trifling or important the intereſts it affected might be) ſhould have their final deciſion from this court. All caſes affecting ambaſſadors, other pu•••c miniſters and conſuls—of admiralty and maritime juriſdiction—all controverſies between different ſtates—between the United States and a ſtate—a ſtate and the citizens of another ſ•••e, citizens of the ſame ſtate claiming lands under different ſtates, ſhould of courſe be ſubmitted to its deciſion. In caſes affecting ambaſſadors, other public miniſters and conſuls, and in which 〈◊〉 ••e ſhall be a party, the Supreme Cou•• ſhould have original juriſdiction; in the other caſes a••ve mentioned appellate juriſdiction as to law only, and from the Supreme Courts of the ••ſpec•ive ſtates. The laws of the United States becoming under the conſtitution thoſe of each ••ate, their courts of courſe take cogn•zance of them, from whoſe deciſions, the object of the union will be completely anſwered by an appeal to their court as to law only, and with great accommodation to the intereſts of the people. In the organization of this branch, the object ſhould be to found it on the ſtate eſtabliſhments, and not independently of them, for in the latter caſe new and very extraordinary difficulties preſent themſelves to view, among which the claſhing of juriſdictions would perhaps be the leaſt important. The judges ſhould be appointed by the Preſident, who would of courſe take them from among the meritorious of our citizens in the different quarters of the union.

Having ſhewn the defects of our preſent federal ſyſtem, pointed out thoſe remedies or amendments both as to its pow•rs, and their diſtribution or organization, that have appeared to me adviſable, I am naturally led in conformity to the plan I had laid down in the beginning of theſe obſervations, into a more minute compariſon or examination, of the conſtitution now before you, by the ſtandard or teſt of thoſe principles I have endeavoured to eſtabliſh. And this I will confeſs, is the moſt painful part of the preſent enquiry. But where there is a contrariety of ſentiment, in any degree, there can be no other mode of inveſtigation; and it is I am perſuaded the fairer courſe, for if the principles themſelves cannot be ſupported it neceſſarily reſults, that all reaſoning or deductions from them fall to the ground.

It may be recollected that I have not objected to any of thoſe powers which were neceſſary to add, to the energy, ſtrength, reſour•e, or reſp•ctability of the government, but have ſought to diveſt it of thoſe only which I conceived it could never exerciſe, were impracticable, and whilſt they remained even if not brought forth into action, would leſſen it in the confidence of the people, but if ever exerted prove the fource of endleſs ſtrife between the ſtates and the general government, that muſt terminate in the ruin of either the one or the other, which I have conſidered, (perhaps improperly) as a great national calamity. Thoſe to which I have particularly alluded are the right of direct taxation and of excite through all the ſtates; and the more I have reflected on this ſubject the better ſatisfied I have been, that if the other powers were veſted in it, and the government made as thereby it wou•d be, ſtrong, energetic and efficient, that the leaving thoſe with the ſtates would not only be happier for them, but more beneficial for it. For whether we examine it as an abſtract propoſition, or avail ourſelves of th•ſe lights which the hiſtory of all times hath preſented to our view, yet the demonſtration, at leaſt to my mind, ſeems ſatisf•ctory and conc•uſ•ve, that under ſuch a government, able and willing to compel the ſtates to perform their duty, the want of which is the great defect of the preſent ſyſtem, and which would thereby be completely remedied that t•e ſame objects might be attained to better advantage through their intravention, than by any other mode or inſtitution that could be adopted for the purpoſe. As this is p•rhaps the o•ly objection which I have to the powers contained in the conſtitution, and is founded on pri•ciples I have already fully explained; it will be unneceſſary to attempt a further illuſtration of it here. I ſhall therefore proceed, admitting the propriety of the general diviſion into three branch••, to an examin•tion of the ſuborbinate organization of the government, and firſt of the legiſlature.

Its diviſion into two branches an houſe of repreſentatives and ſenate has appeared to me to to be perfectly right; and the mode preſcribed for the election of the members o• the former by the people not only practicable, but highly commendable. The right of originating money bills, and of impeachment, have alſo been properly aſſigned to this bran•h; the term of ſ•rvice and the principle of repreſentation upon which its houſe will be formed appear likewiſe inexceptionable. In ſhort this branch of the legiſlative is organized entirely to my wiſhes. I muſt however confeſs my mind has not as yet acknowledged in there reſpects, the ſame prepoſſeſſions poſſeſſions in favour of the ſenate. The great defect as has been already often obſerved in the preſent form, is that of its being a diplomatic corps, a government by and for ſtates, and not in any view of it a national one. In changing it, the object ſhould be to correct that defect in all caſes whatever, ſo far as it might be practicable, which can only be done by taking the appointment of 〈…〉 of the hands of the ſtates, in their legiſlative characters, and placing it in thoſe of the people, or electors by them appointed for the pu•poſe. This has been done with the members of the houſe of repreſentatives, but departed from with thoſe of the Senate. This branch will therefore be in every reſpect the repreſentative of the ſtates, dependent on and reſponſible to them for their conduct. In forming a right eſtimate of the conſequences reſulting from this property in the choracter of this body, and of the tone it may give to the meaſures of the government, we muſt examine its powers in every direction, and purſue its operation upon every ſubject. And firſt as to its ſhare in the legiſlature •• its influence upon all legiſlative acts.

The ſenate has an abſolute negative upon all laws; from this it reſults that thoſe not for the advantage of the ſtates, or the prevailing fac•ion in the government, to which they reſpectively belong will by thoſe thus circumſtanced be rejected; for is it to be preſumed that becauſe ten members from Virginia, eight from Maſſachuſetts or Pennſylvania in the houſe of repreſentatives, have paſſed a bill, whilſt one from Rhode Iſland or Delaware only had rejected it, that theſe ſtates will give up their equal ſuffrage in the ſenate? Is it not more preſumable that their ſenators will look on at the nominal and unimportant ſuperiority of thoſe ſtates, in the other houſe, laugh at their ſuppoſed triumph, and await coolly its ſubmiſſion to their board, where its ſate will be inevitable? Or is it to be ſuppoſed, that the right to orig•nate money bills, a thing proper in itſelf, being the more democratic branch, in the houſe of repreſentatives, will controul this diſpoſition, eſpecially when we recollect that they are both only repreſentative branches, equally dependent on the paſſage of ſuch a bill for their wages or ſalary, and that the members of the latter holding their offices for a ſhorter term, have perhaps not been able to introduce ſuch a degree of oeconomy and order into their finances. This is a check of great importance in the Engliſh conſtitution, and indeed the preſervation of the democracy, but the conſtruction and principles of the two governments are ſo radically different, that it will be eaſily perceived by the ſlighteſt obſerver, the ſame effects are not to be expected from it, at leaſt not to the ſame extent in this, that are experienced in that. Making due allowance for thoſe conſiderations that ſhould be taken into view, I am therefore led to believe that the defective principles of the preſent government, through the means of the ſenate, in reſpect to form and repreſentation, have been communicated to this branch of the conſtitution. Appointed by the ſtates and of courſe reſponſible to them for their conduct, the ſenators will act for thoſe to which they reſpectively belong; nor can we reaſonably expect from their conceſſion any great accommodation. Thus the ſtate ſpirit, with an equality among the members of the union, will be preſerved in this branch of the government, and if there was an abſolute neceſſity for yielding the point of repreſentation, yet none ſuggeſts itſelf, at leaſt to me, for not remedying the defect in the form, which has been found ſo pernicious in the preſent one.

By the conſent of two thirds of the ſenators preſent, treaties ſhall be formed; by that of a majority, ambaſſadors, other public miniſter, and conſuls, judges of the ſupreme court and other public officers not otherwiſe provided for by law, ſhall be appointed. The ſubjecting the deciſion of important queſtions to a dependence on the occaſional preſence or abſence of any of the members, 〈…〉, appears to me improper. If the vote of two thirds of the body is in any inſtance neceſſary, for the ſecurity of the intereſts of any part of the union, why ſhould the death or delinquency of a member deprive it of this ſafeguard, 〈…〉. It is further to be obſerved that whatever influence this branch may have in directing the meaſures of the executive, from the nature of its appointment, will be exerted to give it a narrow ſtate byas, and that from this ſource alone, conſtructed as the two branches are, much injury is to be expected from this extraordinary coalition.

"The ſenate ſhall have the ſole power to try all impeachments." The preſident is to act under their controul in the caſes above ſtated, if in any inſtance a wanton violation by their direction or permiſſion ſhould be made, which though not probable is yet practicable, of the rights or intereſts of any part of the community, and after ſolemn debate in the houſe of repreſentatives, this high officer ſhould be brought by impeachment before this body to expiate his offence, what would be his fate, eſpecially as he ſtill held his office and might wield his powers in his defence? A king of England involved himſelf in great difficulties by an attempt to eſtabliſh the validity of a general pardon, but had the conſtitution ſubmitted the trial of ſtate offenders to himſelf, there would have been no occaſion fort he conteſt. Admitting however the members of this body to be incapable of moral turpitude, may we not ſuppoſe, as might be the caſe in that of any individual ſtate; in the operation of this government, that offences might be committed againſt one quarter of the community, and which before a diſpaſſionate court would receive ſevere reprehenſion, that would be highly beneficial to the others? And in ſuch a caſe could we expect from the repreſentatives of theſe ſtates a candid or impartial deciſion againſt the intereſts of their conſtituents?

The placing the executive power in the hands of one perſon, appears to be perfectly right. If this branch had been put into commiſſion, the ſtate ſpirit would have been communicated to it, and have tainted all its meaſures; in addition to this there would have been leſs reſponſibility. But the mode of election, does not in all reſpects appear, to merit ſuch commendation A departure from the ſtrict repreſentative line, by adding the equal vote of the ſenate to the number each ſtate hath in the houſe of repreſentatives, is made in the firſt inſtance; but it is ſtill more exceptionable in other reſpects. If an election ſhall not be made, and in all probability this will often be the caſe, indeed the preſumption is the contrary will ſeldom happen, a very extraordinary ſubſidiary mode is reſorted to. Thoſe having the five higheſt votes are to be ballotted for by the houſe of repreſentatives, the vote to be taken by ſtates, and one member from each 〈◊〉 the vote of the ſtate. All caſes that the conſtitution will admit of, ſhould be conſidered as likely to happen ſome time or other. No perſon then I am perſuaded who will make the calculation, can behold the facility by which the chair of the United States may be approached and atchieved, even contrary to the wiſhes of the people, without equal anxiety and ſurprize. Let it be admitted that the temper of the times and the ardent ſpirit of liberty which now prevails, will guard it for the preſent from ſuch eaſy acceſs; but that perſon has profited but little, from the faithful admonition which all hiſtory has given him, who ſhall conclude from thence, that this will always be the caſe. His right to remain in office after impeachment, with the influence though diminiſhed, ſtill attending it, appears to be highly improper. That of adjournment in caſe of impeachment, between the two branches, to ſuch time as he ſhall think fit, is certainly too unqualified and extenſive. The impropriety of the union of this branch with the ſenate has already been ſufficiently dilated on; it will therefore be unneceſſary to repeat the ſame arguments here. Contemplating however the conſequences of this union, the expiration of his ſervice, ſhould in my opinion be accompanied with a temporary diſqualification. The ſenators, would to ſave the commonwealth from injury, be able to give inſtruction to a new priſident, and it would perhaps be better, to change occaſionally the acting party, of a combination that might otherwiſe be dangerous.

From the firſt clauſe reſpecting the judiciary it is obvious, that the Congreſs, although there ſhall be one Supreme Court only, may eſtabliſh as many ſubordinate to it, as they ſhall think fit. The preſumption is, they will eſtabliſh ſo many as ſhall be neceſſary for the diſcharge of the functions of the department, to the advantage of the government, and benefit of the people. The extent therefore of the duties which become the excluſive object of a foederal court, may give ſome inſight into that eſtabliſhment they might probably adopt; and when we obſerve that the cognizance of all caſes ariſing under the conſtitution and the laws, either of a civil or criminal nature, in law or equity, with thoſe other objects which it ſpecifies, even between the citizens of the ſame ſtate, are taken from thoſe of each ſtate and abſolutely appropriated to the courts of the United States, we are led into a view of the very important intereſts it comprehends, and of the extenſive ſcale upon which it operates. It will therefore be the duty of Congreſs to organize this branch, by the eſtabliſhment of ſuch ſubordinate courts, throughout the whole confederacy, in ſuch manner as ſhall be found neceſſary to ſupport the authority of the government, and carry juſtice home, ſo far as it may be practicable, to the doors of all its inhabitants. What mode may be beſt calculated to accompliſh this end, belongs to that body to determine. Bound by no rule they may it is true (as in the commencement they probably would) avail themſelves of thoſe of each ſtate; but this would be a meaſure of expedience only and not of right, and may hereafter be changed as the fortunes of the government, and conſiderations of expedience may dictate. How far it might be proper to authoriſe the ſubjects of foreign powers to carry the citizens of any ſtate into a foederal court, and afterwards by appeal into the Supreme Court, is of queſtionable propriety. The principal argument in its favour appears to be that of ſecuring the United States from the danger of controverſies with ſuch powers, under the partial deciſions of thoſe of the individual ſtates. But if they knew ſuch caſes, were by a fundamental of our government ſubmitted to them, it were reaſonable to ſuppoſe, that all juſt cauſe of complaint, would be removed. The ſubmiſſion to a foederal court of conteſts upon ordinary ſubjects, between citizens of the ſame ſtate, or even of different ſtates, or indeed upon any ſubject, that did not ariſe under territorial controverſies between ſtates, and which originally belonged to that court, appears to be highly improper and altogether unneceſſary. The appeal as to fact is ſtill more extraordinary and exceptionable. The verdict which has been found muſt of courſe be ſet aſide, and the court ſubjected to the neceſſity of either trying the cauſe upon the evidence already given, with liberty to conſtrue it at pleaſure; of hearing it over again admitting other evidence, being judges of the fact themſelves; or ſubmitting it to another jury to find a ſecond verdict, either of which modes appears to be highly exceptionable; for if the court become judges of fact under the old or a new trial, the right of trial by jury is diſpenſed with; and if a ſecond jury ſhall be ſummoned, independent of the difficulty and hardſhip, attending the ſubmiſſion of controverſies contracted at the extremities of the union, by people in ſome degree variant in th•ir manners, cuſtoms, and prejudices, to a jury formed of thoſe of any one town, the parties are neceſſarily expoſed to the loſs of time, (of importance eſpecially to the lower claſſes of ſociety) and the enormous expence inſeparable from a tryal carried on at a great diſtance from home. What neceſſity there can be, ſo effectually to lay aſide the ſtate courts, (which though perhaps improperly organized at preſent are yet capable of improvement) and ſubject the good people of America to ſuch new and unheard of difficulties, I muſt confeſs I am not able to comprehend, nor can I readily forſee the very important conſequences into which it may lead.

Having now taken a view as conciſely as I have been able, of the defects of the preſent ſyſtem, ſuggeſted their remedy with the principles upon which it is founded, examined the conſtitution by that ſtandard, and ſhewn wherein I have either approved or diſapproved of it; perhaps it may be expected (as a deduction from the foregoing principles) that I ſhould make ſome calculation, of the probable courſe and ultimate fate of the government, ſhould it be adopted in its preſent form, ſince it might have ſome influence upon your opinion in the preſent inſtance. This muſt however be altogether conjectural, for in the operation of government, as in that of all other powers after conſequences, have been clearly demonſtrated, as reſulting from certain cauſes, oftentimes ſome incident, not contemplated, nor taken into the combination, or extra circumſtance ariſes, that gives it a different di••ction. To form any eſtimate in this reſpect ſome peculiarities preſent themſelves to view very deſerving of attention. The mixture between the general and ••ate governments, being partly a conſolidated and partly a confederated one, ſuggeſts a balance between ſovereignties that is new and intereſting. So far as it proceeds from the people and its powers embrace the care of their intereſts, it partakes of the qualities of the former; and ſo far as the ſtate governments remain of the latter. In weighing the momentum of their relative ſtrength or force it is no leſs difficult to determine which will preponderate. Founded alike by the people, by the people alſo may either be changed at pleaſure. If the preciſe boundary had been drawn between them, the proper checks eſtabliſhed, and the general government well poiſed, might for a long time, and I ſhould hope forever, be ſtationary; defective in theſe reſpects it will probably ſoon experience a change. Purſuing a natural courſe under thoſe ſhocks it muſt expect, without any foreign impreſſion to give it the faireſt hopes, let us enquire what the intereſts of the people will dictate, for let that be its direction. Independent ſtate ſovereignties, or partial confederacies, have been reprobated in its commencement. Its foundation has been laid on the ruin of all ſchemes that had that tendency, and it is preſumeable it would in no event embrace either, at leaſt until it had experienced a great viciſſitude of fortunes. If then it eſcaped the firſt paroxiſms, the ſevere ſtruggles, and violent efforts againſt it, expoſed it to, its eſtabliſhment might be conſidered as complete. And ſuppreſſing the ſpirit of oppoſition, its conſtitutional baſis will be found broad and extenſive. It is not the aid of the Delphic oracle, the blind zeal of enthuſiaſim, that will be called in to its ſupport. It has the protection of the true religion, of divine authority itſelf, to ſhield it from danger. The exerciſe of powers in common that will be allowed of in its commencement, muſt yield on the part of the ſtates, to its acquiring ſtrength. And wielding thoſe the conſtitution has given it without availing itſelf of ſuch as were conſtructive, the ſtate governments, under this progreſs, would ſoon become a burthen to the people. The confederated principle, or the ſpirit of ſtate ſovereignty, would however not be inactive, but operate ſo as to bring on the criſis; and the conſtitution itſelf preſents a fruitful ſource of controverſy, for the ſpirit of accommodation, or the mutual fear of danger, muſt be great, where the line between them is not exactly drawn, if they do not interfere. If this government had been organized over one ſtate, with a moderate extent of territory, its natural progreſs, through the Senate, would be to ariſtocracy. But as it is I am inclined to believe, that although in its operation it may bear that tone, yet when it becomes convulſed and experiences a change, it will hold a different direction. Even the conſtruction of that branch in its operation will contribute to hurry it into monarchy, and our earneſt hopes and prayers ſhould be, every circumſtance conſidered, that it be a limitted one. For theſe reaſons and not that I fear any danger to the liberties of our country, from the effective force of the government, exerted immediately againſt the good people of America, could I wiſh thoſe checks and guards adopted, omitted at preſent from neglect and an over confidence of our ſecurity, but which it is poſſible if the preſent opportunity is loſt, we may contend for hereafter in vain. Political inſtitutions, we are taught by melancholy experience, have their commencement, maturity and decline; and why ſhould we not in early life, take thoſe precautions that are calcul•ted to prolong our days, and guard againſt the diſeaſes of age? Or ſhall we rather follow the example of the ſtrong, active, and confident young man, who in the pride of health, regardleſs of the admonition of his friends, purſues the gratification of unbridled appetites, and fal•s a victim to his own indiſcretion, even in the morn of life, and before his race had been fairly begun.

I have to apologize for the trouble I have given you in the peruſal of the obſervations. I owe it to myſelf however to obſerve that the bounds within which I have been u•d•r the neceſſity of confining this letter has prevented my going into that detail, often neceſſary, eſpecially on ſo inticate a ſubject for the ſake of illuſtration; and the want of leiſure has I fear, prevented even a tolerable degree of correctneſs. But if I have been able to explain myſelf to your ſatisfaction I ſhall be contented. Upon the whole it reſu•ts that although I am for a change, and a radical one, of the confederation, yet I have ſome ſtrong a•d invincible objections to that propoſed to be ſubſtituted in its ſtead. Thoſe of leſs weight might be yielded for the ſake of accomodation; but until an experiment and prove the contrary, I ſhall always believe that the exerciſe of direct taxation and exciſe, by one body, over the very extenſive territory contained within the bounds of the United States, will terminate either in anarchy and a diſſolution of the government, or a ſubverſion of liberty. The judiciary I conſider as illy organized and it powers as too extenſive, the whole government in a great meaſure without reſponſibility, and the rights of men too looſely guarded. And when I behold the Senate, a corps more deplomatic in its principle, permanent in its ſtation, and ſyſtematic in its operations, than even the late Congreſs itſelf, wie•ding in the one hand the ſtrong powers of the Executive, and with the other controu•ing and modifying at pleaſure, the movements of the legiſlature, I muſt confeſs that not only my hopes of the beneficial effects of the government, are greatly diminiſhed, but that my apprehenſions of ſome fatal cataſtrophe are highly awakened. We have ſtruggled long my bring about this revolution, we have fought and bl•d freely to accompliſh it, an• in other reſpects braved difficulties almoſt without a parellel. Why then this precipitation, why this hurry upon a ſubject ſo momentous, and equally intereſting to us all? Is it to be ſup••ſ•d that un•eſs we immediately adopt this plan, in its fulleſt extent, we ſhall forever •ooſe the opportunity of coming for ourſelves a good government? That ſome wild phrenſy or delirium of the brain will ſeize upon us, and loſing all recollection of things paſt, and abandoning the ſocial ties that bind mankind together, we ſhall fall into ſome ſtrange and irritrievabled forder? Or is it not more natural to ſuppoſe that perfection in any ſcience, if attainable at all, is to be approached by flow and gradual advances, and that the plan of government now preſented for your inſpection, though a powerful effort of the human mind, is yet to be improved by a ſecond eſſay?

The ſubject now ſubmitted to you, is no leſs intereſting than it is important. Providence hath long ſeen nine-tenths of the habitable globe immerſed, and groaning under the dreadful oppreſſions of ſlavery. To the people of America, to you it belongs to correct the oppoſite extreme•• To form a government that ſhall ſhield you from dangers from abroad, promote your general and local intereſts, protect in ſafety the life, liberty, and property, of the peaceful, the virtuous and the weak, againſt the encroachments of the diſorderly and licentious. Whether they are now endangered, whether the plan now before you, preſented under the moſt faithful and illuſtrious auſpices; under the auſpices of men of whoſe abilities and integrity you have long had the moſt ſatisfactory proofs, and who to the moſt important ſervices, by abandoning the enjoyments of a peaceful and happy retirement, have added this further teſtimony, of their never failing attachment• to the intereſts of their country, will accompliſh this end, or is capable of ſtill further improvement, belongs to you to determine. To differ in any reſpect from theſe men, is no pleaſant thing to me; but being called upon an awful ſtage upon which I muſt now bear a part, I have thought it my duty to explain to you the principles on which my opinions were founded, under this further aſſurance, that if after a candid review, they ſhall appear indefenſible, I will moſt chearfully ſubmit to be governed by your wiſhes, and obey other inſtructions.