Thursday, November 30, 2006
Senate Journal, "An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication", March 2, 1866
"I regret that the bill which has passed both houses of Congress, entitled "An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication," contains provisions which I cannot approve, consistently with my sense of duty to the whole people, and my obligations to the Constitution of the United States. I am therefore constrained to return it to the Senate, the house in which it originated, with my objections to its becoming a law...."
"...Besides, the policy of the government, from its origin to the present time, seems to have been that persons who are strangers to and unfamiliar with our institutions and our laws should pass through a certain probation, at the end of which, before attaining the coveted prize, they must give evidence of their fitness to receive and to exercise the rights of citizens, as contemplated by the Constitution of the United States. . . . . while persons of foreign birth, who make our land their home, must undergo a probation of five years, and can only then become citizens upon proof that they are "of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same". ..."
"... The remedy proposed by this section seems to be, in this respect, not only anomalous, but unconstitutional, for the Constitution guarantees nothing with certainty if it does not insure to the several States the right of making and executing laws in regard to all matters arising within their jurisdiction, subject only to the restriction that, in cases of conflict with the Constitution and constitutional laws of the United States, the latter should be held to be the supreme law of the land...."
"...If, however, any such attempt shall be made, it will then become the duty of the general government to exercise any and all incidental powers necessary and proper to maintain inviolate this great constitutional law of freedom...."
"...If it should prove otherwise, Congress can at any time amend those laws in such manner as, while subserving the public welfare, not to jeopard the rights, interests, and liberties of the people...."
"...Entertaining these sentiments, it only remains for me to say that I will cheerfully co-operate with Congress in any measure that may be necessary for the protection of the civil rights of the freedmen, as well as those of all other classes of persons throughout the United States, by judicial process, under equal and impartial laws, in conformity with the provisions of the federal Constitution...."
"...AN ACT to protect all persons in the United States in their civil rights, and furnish the means of their vindication.
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding..."
Click on headline to read the rest of this interesting piece of legislation....
Wednesday, November 29, 2006
Ordered, That it lie on the table.
Mr. Seward presented a memorial of citizens of the State of New York, praying the speedy adoption of such measures as will restore peace and harmony to the country.
Ordered, That it lie on the table....
"......Mr. Iverson asked and obtained the unanimous consent of the Senate to present a communication, signed by himself, containing a copy of an ordinance adopted by the people of the State of Georgia, "to dissolve the union between the State of Georgia and other States, united with her under a compact of government, entitled 'the Constitution of the United States of America,'" and informed the Senate that in consequence of the adoption of the said ordinance by the State of Georgia, he did not feel at liberty any longer to take part in the proceedings of the Senate, and that he should withdraw from the body...."
"...Mr. Bigler asked and obtained the unanimous consent of the Senate to present resolutions adopted by the legislature of Pennsylvania, in relation to the maintenance of the Constitution and the Union...."
"...The message of the President of the United States was read, as follows:
To the Senate and House of Representatives of the United States:
I deem it my duty to submit to Congress a series of resolutions adopted by the legislature of Virginia on the 19th instant, having in view a peaceful settlement of the exciting questions which now threaten the Union. They were delivered to me on Thursday, the 24th instant, by Ex-President Tyler, who has left his dignified and honored retirement in the hope that he may render service to his country in this its hour of peril. These resolutions, it will be perceived, extend an invitation "to all such States, whether slaveholding or non- slaveholding, as are willing to unite with Virginia in an earnest effort to adjust the present unhappy controversies in the spirit in which the Constitution was originally formed, and consistently with its principles, so as to afford to the people of the slaveholding States adequate guarantees for the security of their rights, to appoint commissioners to meet on the 4th day of February next, in the city of Washington, similar commissioners appointed by Virginia, to consider, and, if practicabel, agree upon some suitable adjustment."
I confess I hail this movement on the part of Virginia with great satisfaction. From the past history of this ancient and renowned Commonwealth we have the fullest assurance that what she has undertaken she will accomplish, if it can be done by able, enlightened, and persevering efforts. It is highly gratifying to know that other patriotic States have appointed and are appointing commissioners to meet those of Virginia in council. When assembled they will constitute a body entitled, in an eminent degree, to the confidence of the country...."
(Click on the headline to read rest of article).
Monday, November 27, 2006
"Friends and Countrymen."
"History, we believe, cannot furnish an Example of a Trust, higher and more important than that, which we have received from your Hands. It comprehends in it every Thing that can rouse the Attention and interest the Passions of a People, who will not reflect Disgrace upon their Ancestors nor degrade themselves, nor transmit Infamy to their Descendants. It is committed to us at a Time when every Thing dear and valuable to such a People is in imminent Danger. This Danger arises from those, whom we have been accustomed to consider as our Friends; who really were so, while they continued friendly to themselves; and who will again be so, when they shall return to a just Sense of their own Interests. The Calamities, which threaten us, would be attended with the total Loss of those Constitutions, formed upon the venerable Model of British Liberty, which have been long our Pride and Felicity. To avert those Calamities we are under the disagreeable Necessity of making temporary Deviations from those Constitutions...."
"...The Sentence of universal Slavery gone forth against you is; that the British Parliament have Power to make Laws, without your Consent, binding you in All Cases whatever. Your Fortunes, your Liberties, your Reputations, your Lives, every Thing that can render you and your Posterity happy, all are the Objects of the Laws: All must be enjoyed, impaired or destroyed as the Laws direct. And are you the Wretches, who have Nothing that you can or ought to call your own? Were all the rich Blessings of Nature, all the Bounties of indulgent Providence poured upon you, not for your own Use; but for the Use of those, upon whom neither Nature nor Providence hath bestowed Qualities or Advantages superior to yours? ..."
"...Many of the Injuries flowing from the unconstitutional and ill-advised Acts of the British Legislature, affected all the Provinces equally; and even in these Cases, in which the Injuries were confined, by the Acts, to one or to a few, the Principles, on which they were made, extended to all. If common Rights, common Interests, common Dangers and common Sufferings are Principles of Union, what could be more natural than the Union of the Colonies? ..."
"...We wish it were as easy to shew, that they merited no Reproach from their Constituents, by neglecting the necessary Provisions for their Security. Has a single Preparation been made, which has not been found requisite for our Defense? Have we not been attacked in Places where fatal Experience taught us, we were not sufficiently prepared for a successful Opposition? On which Side of this unnatural Controversy was the ominous Intimation first given, that it must be decided by Force? Were Arms and Ammunition imported into America, before the Importation of them was prohibited? What Reason can be assigned for this Prohibition, unless it be this, that those who made it had determined upon such a System of Oppression, as they knew, would force the Colonies into Resistance? ..."
"...The humble unaspiring Colonists asked only for "Peace, Liberty and Safety". This, we think, was a reasonable Request: Reasonable as it was, it has been refused. Our ministerial Foes, dreading the Effects, which our commercial Opposition might have upon their favourire Plan of reducing the Colonies to Slavery, were determined not to hazard it upon that Issue. They employed military Force to carry it into Execution. Opposition of Force by Force, or unlimited Subjection was now our only Alternative. Which of them did it become Freemen determined never to surrender that Character, to chuse? The Choice was worthily made. We wish for Peace--we wish for Safety: But we will not, to obtain either or both of them, part with our Liberty. The sacred Gift descended to us from our Ancestors: We cannot dispose of it: We are bound by the strongest Ties to transmit it, as we have received it, pure and inviolate to our Posterity.
"We have taken up Arms in the best of Causes. We have adhered to the virtuous Principles of our Ancestors, who expressly stipulated, in their Favour, and in ours, a Right to resist every Attempt upon their Liberties. We have complied with our Engagements to our Sovereign. He should be the Ruler of a free People: We will not, as far as his Character depends upon us, permit him to be degraded into a Tyrant over Slaves...."
Sunday, November 26, 2006
"....Hon. ROBERT R. LIVINGSTON...It has pleased Heaven to afford the United States means for the attainment of this great object, which it has withheld from other nations. They speak the same language; they profess the same religion; and, what is of infinitely more importance, they acknowledge the same great principle of government--a principle, if not unknown, at least little understood in the old world--that all power is derived from the people. They consider the state and the general governments as different deposits of that power. In this view, it is of little moment to them whether that portion of it which they must, for their own happiness, lodge in their rulers, be invested in the state governments only, or shared between them and the councils of the Union. The rights they reserve are not diminished, and probably their liberty acquires an additional security from the division...."
"...The only people whose government was visibly directed by God himself, rejected his administration, and induced him, in his wrath, to give them a king. Let us be cautious, sir, lest, by our negligence or eager pursuit after chimerical perfection, we should forfeit the blessings we enjoy, and lose this precious opportunity of completing what other nations have been unable to effect...."
"...Many of us, sir, said he, are officers of government; many of us have seats in the Senate and Assembly: let us, on this solemn occasion, forget the pride of office; let us consider ourselves as simple citizens, assembled to consult on measures that are to promote the happiness of our fellow-citizens. As magistrates, we may be unwilling to sacrifice any portion of the power of the state; as citizens, we have no interest in advancing the powers of the state at the expense of the Union. We are only bound to see that so much power as we find it necessary to intrust to our rulers, be so placed as to insure our liberties, and the blessings of a well-ordered government...."
"...Mr. (Melancton) Smith...Fickleness and inconstancy, he said, were characteristic, of a free people; and, in framing a constitution for them, it was, perhaps, the most difficult thing to correct this Spirit, and guard against the evil effects of it. He was persuaded it could not be altogether prevented without destroying their freedom. It would be like, attempting to correct a small indisposition in the habit of the body, fixing the patient in a confirmed consumption. This fickle and inconstant spirit was the more dangerous in bringing about changes in the government. The instance that had been adduced by the gentleman from sacred history, was an example in point to prove this. The nation of Israel, having received a form of civil government from Haven, (Interjected; Self-government, Under God), enjoyed it for a considerable period; but, at length, laboring under pressures which were brought upon them by their own misconduct and imprudence, instead of imputing their misfortunes to their true causes, and making a proper improvement of their calamities, by a correction of their errors, they imputed them to a defect in their constitution; they rejected their divine Ruler, and asked Samuel to make them a king to judge them, like other nations. Samuel was grieved at their folly; but still, by the command of God, he hearkened to their voice, though not until he had solemnly declared unto them the manner in which the king should reign over them. "This (says Samuel) shall be the manner of the king that shall reign over you. He will take your sons, and appoint them for himself, for his chariots, and for his horsemen, and some shall run before his chariots; and he will appoint him captains over thousands, and captains over fifties, and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots. And he will take your daughters to be confectionaries, and to be cooks, and to be bakers. And he will take your fields, and your vineyards, and your olive-yards, even the best of them, and give them to his servants. And he will take the tenth of your seed, and of your vineyards, and give to his officers and to his servants, and he will take your men-servants, and your maid-servants, and your goodliest young men, and your asses, and put them to his work. He will take the tenth of your sheep; and ye shall be his servants. And ye shall cry out in that day, because of your king which ye have chosen you; and the Lord will not hear you in that day!" How far this was applicable to the subject, he would not now say; it could be better judged of when they had gone through it. On the whole, he wished to take up this matter with candor and deliberation. . . . It was, he said, the fundamental principle of a free government, that the people should make the laws by which they were to be governed. He who is controlled by another is a slave; and that government which is directed by the will of any one, or a few, or any number less than is the will of the community, is a government for slaves...."
"...Corruption, he knew, was unfashionable amongst us, but he supposed that Americans were like other men; and though they had hitherto displayed great virtues, still they were men; and therefore such steps should be taken as to prevent the possibility of corruption. We were now in that stage of society in which we could deliberate with freedom; how long it might continue, God only knew! Twenty years hence, perhaps, these maxims might become unfashionable.
We already hear, said he, in all parts of the country, gentlemen ridiculing that spirit of patriotism, and love of liberty, which carried us through all our difficulties in times of danger. When patriotism was already nearly hooted out of society, ought we not to take some precautions against the progress of corruption? ...."
"The Hon. Mr. HAMILTON....Here is a nation at war with itself. Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself--a government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government.
But can we believe that one state will ever suffer itself to be used as an instrument of coercion? The thing is a dream; it is impossible. Then we are brought to this dilemma--either a federal standing army is to enforce the requisitions, or the federal treasury is left without supplies, and the government without support. What, sir, is the cure for this great evil? Nothing, but to enable the national laws to operate on individuals, in the same manner as those of the states do. This is the true reasoning upon the subject, sir. The gentlemen appear to acknowledge its force; and yet, while they yield to the principle, they seem to fear its application to the government.
What, then, shall we do? Shall we take the old Confederation, as the basis of a new system? Can this be the object of the gentlemen? Certainly not. Will any man, who entertains a wish for the safety of his country, trust the sword and the purse with a single assembly organized on principles so defective--so rotten? Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the
national forces, would be to establish a despotism; the definition of which is, a government in which all power is concentred a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people...."
"...They are persons known to the municipal laws of the states which they inhabit, as well as to the laws of nature...."
"...The Hon. Mr. (John) WILLIAMS...Unhappily for us, immediately after our extrication from a cruel and unnatural war, luxury and dissipation overran the country, banishing all that economy, frugality, and industry, which had been exhibited during the war.
"Sir, if we were to reassume all our old habits, we might expect to prosper. Let us, then, abandon all those foreign commodities which have hitherto deluged our country, which have loaded us with debt, and which, if
continued, will forever involve us in difficulties...."
"...This being the case, let us examine whether it be calculated to preserve the invaluable blessings of liberty, and secure the inestimable rights of mankind. If it be so, let us adopt it. But if it be found to contain principles that will lead to the subversion of liberty,--if it tends to establish a despotism, or, what is worse, a tyrannical aristocracy,--let us insist upon the necessary alterations and amendments.
"Momentous is the question, and we are called upon by every motive to examine it well, and make up a wise and candid judgment.
"In forming a constitution for a free country like this, the greatest care should be taken to define its powers, and guard against an abuse of authority...."
"...for to say that a bad government must be established for fear of anarchy, is, in reality, saying that we must kill ourselves for fear of dying."
"Mr. M. SMITH...Besides, the influence of the great will generally enable them to succeed in elections. It will be difficult to combine a district of country containing thirty or forty thousand inhabitants,--frame your election laws as you please,--in any other character, unless it be in one of conspicuous military, popular, civil, or legal talents. The great easily form associations; the poor and middling class form them with difficulty. If the elections be by plurality,--as probably will be the case in this state,--it is almost certain none but the great will be chosen, for they easily unite their interests: the common people will divide, and their divisions will be promoted by the others. There will
be scarcely a chance of their uniting in any other but some great man, unless in some popular demagogue, who will probably be destitute of principle. A substantial yeoman, of sense and discernment, will hardly ever be chosen. From these remarks, it appears that the government will fall into the hands of the few and the great. This will be a government of oppression...."
"...Can the liberties of three millions of people be securely trusted in the hands of twenty-four men? Is it prudent to commit to so small a number the decision of the great questions which will come before them? Reason revolts at the idea...."
"...We certainly ought to fix, in the Constitution, those things which are essential to liberty. If any thing falls under this description, it is the number of the legislature. To say, as this gentleman does, that our security is to depend upon the spirit of the people, who will be watchful of their liberties, and not suffer them to be infringed, is absurd. It would equally prove that we might adopt any form of government. I believe, were we to create a despot, he would not immediately dare to act the tyrant; but it would not be long before he would destroy the spirit of the people, or the people would destroy him. If our people have a high sense of liberty, the government should be congenial to this spirit, calculated to cherish the love of liberty, while yet it had sufficient force to restrain licentiousness. Government operates upon the spirit of the people, as well as the spirit of the people operates upon it; and if they are not conformable to each other, the one or the other will prevail. In a less time than twenty-five years, the government will receive its tone. What the spirit of the country may be at the end of that period, it is impossible to foretell. Our duty is to frame a government friendly to liberty and the rights of mankind, which will tend to cherish and cultivate a love of liberty among our citizens...."
"...It is time to form a barrier against them. And while we are willing to establish a government adequate to the purposes of the Union, let us be careful to establish it on the broad basis of equal liberty...."
"Mr. HAMILTON...All governments, even the most despotic, depend, in a great degree, on opinion. In free republics, it is most peculiarly the case. In these, the will of the people makes the essential principle of the government; and the laws which control the community receive their tone and spirit from the public wishes. It is the fortunate situation of our country, that the minds of the people are exceedingly enlightened and refined...."
"...Besides, the President of the United States will be himself the representative of the people. From the competition that ever subsists between the branches of government, the President will be induced to protect their rights, whenever they are invaded by either branch. . . . Can we suppose the people's love of liberty will not, under the incitement of their legislative leaders, be roused into resistance, and the madness of tyranny be extinguished at a blow? Sir, the danger is too distant; it is beyond all rational calculations.
"It has been observed, by an honorable gentleman, that a pure democracy, if it were practicable, would be the most perfect government. Experience has proved that no position in politics is more false than this. The ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. Their very character was tyranny; their figure, deformity. When they assembled, the field of debate presented an ungovernable mob, not only incapable of deliberation, but prepared for every enormity. In these assemblies, the enemies of the people brought forward their plans of ambition systematically. They were opposed their enemies of another party; and it became a matter of contingency, whether the people subjected themselves to be led blindly by one tyrant or by another...."
"...While property continues to be pretty equally divided, and a considerable share of in formation pervades the community, the tendency of the people's suffrages will be to elevate merit even from obscurity. As riches increase and accumulate in few hands as luxury prevails in society, virtue will be in a greater degree considered as only a graceful appendage of wealth, and the tendency of things will be to depart from the republican standard, This is the real disposition of human nature: it is what neither the honorable member nor myself can correct it is a common misfortune, that awaits our state constitution as well as all others...."
"...After all, sir, we must submit to this idea, that the true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed. Where this principle is adhered to; where, in the organization of the government, the legislative, executive, and judicial branches are rendered distinct; where, again, the legislature is divided into separate houses, and the operations of each are controlled by various checks and balances, and, above all, by the vigilance and weight of the
state governments,--to talk of tyranny, and the subversion of our liberties, is to speak the language of enthusiasm. This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights, they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits, by a certain rivalship, which will ever subsist between them. I am persuaded that a firm union is as necessary to perpetuate our liberties as it is to make us respectable; and experience will probably prove that the national government will be as natural a guardian of our freedom as the state legislature themselves...."
We have obviously made a wrong turn somewhere. Think we need to backtrack and get back on the right road.....
Friday, November 24, 2006
"...As appointments for the general government here contemplated will, in part, be made by the state governments, all the citizens in states where the right of suffrage is not limited to the holders of property will have an indirect share of representation in the general government. But this does not satisfy the fundamental principle, that men cannot be justly bound by laws in making which they have no part. Persons and property being both essential objects of government, the most that either can claim is such a structure of it as will leave a reasonable security for the other...."
“...The right of suffrage is a fundamental article in republican constitutions. The regulation of it is, at the same time, a task of peculiar delicacy. Allow the right exclusively to property, and the rights of persons may be oppressed. The feudal polity along sufficiently proves it...."
“...In civilized communities, property, as well as personal rights, is an essential object of the laws..."
"...In a just and a free government, therefore, the rights both of property and of persons ought to be effectually guarded...."
“...As the holders of property have at stake all the other rights coalition to those without property, they may be the more restrained from infringing, as well as the less tempted to infringe, the rights of the latter. It is nevertheless certain that there are various ways in which the rich may oppress the poor; in which property may oppress liberty; and that the world is filled with examples. It is necessary that the poor should have a defence against the danger....”
"...It is a law of nature, now well understood, that the earth, under a civilized cultivation, is capable of yielding subsistence for a large surplus of consumers beyond those having an immediate interest in the soil...."
(Click on headline to read full article).
Wednesday, November 22, 2006
It being the indispensable duty of all nations, not only to offer up their supplications to Almighty God, the giver of all good, for his gracious assistance in the a time of public distress, but also in a solemn and public manner to give him praise for his goodness in general, and especially for great and signal interpositions of his Providence in their behalf; therefore, the United States in Congress assembled, taking into their consideration the many instances of divine goodness to these states, in the course of the important conflict in which they have been so long engaged; and the present happy and promising state of public affairs; and the events of the war in the course of the last year now drawing to a close, particularly the harmony of the public councils, which is so necessary to the success of the public cause; the perfect union and good understanding which has hitherto subsisted between them and their allies, notwithstanding the artful and unwearied attempts of the common enemy to sow dissension between them divide them; the success of the arms of the United States and those of their allies, and the acknowledgment of their independence by another European power, whose friendship and commerce must be of great and lasting advantage to these states; and the success of their arms and those of their allies in different parts do hereby recommend it to the inhabitants of these states in general, to observe, and recommend it to the executives of request the several states to interpose their authority in appointing and requiring commanding the observation of the last Thursday, in the 28 day of November next, as a day of solemn thanksgiving to God for all his mercies: and they do further recommend to all ranks, to testify their gratitude to God for his goodness, by a cheerful obedience to his laws, and by promoting, each in his station, and by his influence, the practice of true and undefiled religion, which is the great foundation of public prosperity and national happiness. Given, &c.1
[Note 1: 1 This report, in the writing of John Witherspoon, is in the Papers of the Continental Congress, No. 24, folio 471.]
Monday, November 20, 2006
"Within these walls, for a course of years, I have been an admiring witness of a succession of information, eloquence, patriotism, and independence, which, as they would have done honor to any Senate in any age, afford a consolatory hope, (if the legislatures of the states are equally careful in their future selections, which there is no reason to distrust,) that no council more permanent than this, as a branch of the legislature, will be necessary, to defend the rights, liberties, and properties of the people, and to protect the constitution of the United States, as well as the constitutions and rights of the individual states, against errors of judgment, irregularities of the passions, or other encroachments of human infirmity, or more reprehensible enterprise, in the Executive on one hand, or the more immediate representatives of the people on the other...."
- Vice President John Adams, Feb. 15, 1797, Journal of the Senate of the United States of America.
That is quite interesting, isn't it? Somewhat falls right into line with the following;
"...and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
And, then of course there is this quote from Mr. Adams;
"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."
- John Adams, A Defence of the Constitutions of the United States 475 (1787-1788).
"The Right of The People to Keep and Bear Arms Shall NOT be Infringed." - By ANYONE.
Sunday, November 19, 2006
“But, sir, by this government, powers are not given to any particular set of men; they are in the hands of the people; delegated to their representatives chosen for short terms; to representatives responsible to the people, and whose situation is perfectly similar to their own. As long as this is the case we have no danger to apprehend. When the gentleman called our recollection to the usual effects of the concession of powers, and imputed the loss of liberty generally to open tyranny, I wish he had gone on farther. Upon his review of history, he would have found that the loss of liberty very often resulted from factions and divisions; from local considerations, which eternally lead to quarrels; he would have found internal dissensions to have more frequently demolished civil liberty, than a tenacious disposition in rulers to retain any stipulated powers. . . . . . I hope the patriotism of the people will continue, and be a sufficient guard to their liberties.”
- James Madison, June 6, 1788. The Debates in the Several State Conventions, (Virginia), on the Adoption of the Federal Constitution [Elliot's Debates, Volume 3]
“There are controversies even about the name of this government. It is denominated by some a federal, by others a consolidated government. The definition given of it by my honorable friend (Mr. Madison) is, in my opinion, accurate. Let me, however, call it by another name--a representative federal republic, as contradistinguished from a confederacy. The former is more wisely constructed than the latter; it places the remedy in the hands which feel the disorder: the other places the remedy in those hands which cause the disorder. The evils that are most complained of in such governments (and with justice) are faction, dissension, and consequent subjection of the minority to the caprice and arbitrary decisions of the majority, who, instead of consulting the interest of the whole community collectively, attend sometimes to partial and local advantages. To avoid this evil is perhaps the great desideratum of republican wisdom; it may be termed the philosopher's stone. Yet, sir, this evil will be avoided by this Constitution: faction will be removed by the system now under consideration, because all the causes which are generally productive of faction are removed. This evil does not take its flight entirely; for were jealousies and divisions entirely at an end, it might produce such lethargy as would ultimately terminate in the destruction of liberty, to the preservation of which, watchfulness is absolutely necessary. It is transferred from the state legislatures to Congress, where it will be more easily controlled. Faction will decrease in proportion to the diminution of counsellors. It is much easier to control it in small than in large bodies.”
“...Is the American spirit so degenerated, notwithstanding these advantages, that the love of liberty is more predominant and warm in the breast of a Briton than in that of an American? When liberty is on a more solid foundation here than in Britain, will Americans be less ready to maintain and defend it than Britons? No, sir; the spirit of liberty and independence of the people of this country, at present, is such that they could not be enslaved under any government that could be described. What danger is there, then, to be apprehended from a government which is theoretically perfect, and the possible blemishes of which can only be demonstrated by actual experience?
“The honorable gentleman then urges an objection respecting the militia, who, he tells us, will be made the instruments of tyranny to deprive us of our liberty. Your militia, says he, will fight against you. Who are the militia? Are we not militia? Shall we fight against ourselves? No, sir; the idea is absurd. We are also terrified by the dread of a standing army. It cannot be denied that we ought to have the means of defence, and be able to repel an attack.
“If some of the community are exclusively inured to its defence, and the rest attend to agriculture, the consequence will be, that the arts of war and defence, and of cultivating the soil, will be understood. Agriculture will flourish, and military discipline will be perfect. If, on the contrary, our defence be solely intrusted to militia, ignorance of arms and negligence of farming will ensue: the former plan is, in every respect, more to the interest of the state. By it we shall have good farmers and soldiers; by the latter we shall have neither.”
- Francis Corbin, June 7, 1788. The Debates in the Several State Conventions, (Virginia), on the Adoption of the Federal Constitution [Elliot's Debates, Volume 3]
“Will the people reelect the same men to repeat oppressive legislation? Will the people commit suicide against themselves, and discard all those maxims and principles of interest and self-preservation which actuate mankind in all their transactions? Will the ten miles square transform our representatives into brutes and tyrants? I see no grounds to distrust them: but suppose they will be inclined to do us mischief; how can they effect it? If the federal necessities call for the sum of sixty-five thousand pounds, our proportion of that sum is ten thousand pounds. If, instead of this just proportion, they should require a greater sum, a conflict would ensue. What steps could they take to enforce the payment of the unjust and tyrannical demand? They must summon up all the genius of better men; but in case of actual violence, they could not raise the thousandth part of ten thousand pounds. In case of a struggle, sir, the people would be irresistible. If they should be so liable to lapse from virtue, yet would not one man be found, out of a multitude, to guard the interests of the people--not one man to hold up his head to discover the tyrannical projects of a corrupt and depraved majority?”
- Gov. Randolph, June 7, 1788. The Debates in the Several State Conventions, (Virginia), on the Adoption of the Federal Constitution [Elliot's Debates, Volume 3]
Saturday, November 18, 2006
- Theodore Sedgwick
“In Great Britain there are three estates--King, Lords, and Commons. Neither of these can be represented by the other; but they conjointly can form constructions upon the rights of the people, which have been obtained, sword in hand, from the crown. These, with the legislative acts, form the British constitution; and if there is an omitted case, Parliament has a right to make provision for it. But this is not the case in America, consisting of a single estate. The people have expressly granted certain powers to Congress, and they alone had the right to form the Constitution. In doing so, they directed a particular mode of making amendments, which we are not at liberty to depart from.
“The system, it cannot be denied, is in many parts obscure. If Congress are to explain and declare what it shall be, they certainly will have it in their power to make it what they please. It has been a strong objection to the Constitution, that it was remarkably obscure; nay, some have gone so far as to assert that it was studiously obscure--that it might be applied to every purpose by Congress. By this very act, the house are assuming a power to alter the Constitution. The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the Constitution different from the original instrument. Such a power would render the most important clause in the Constitution nugatory; and one without which, I will be bold to say, this system of government never would have been ratified. If the people were to find that Congress meant to alter it in this way, they would revolt at the idea: it would be repugnant to the principles of the revolution, and to the feelings of every freeman in the United States. . . . . . View the matter in any point of light, and it is utterly impossible to admit this clause. It is both useless and unnecessary; it is inconsistent with the Constitution, and is an officious interference of the house in a business which does not properly come before them. We expose ourselves to most dangerous innovations by future legislatures, which may finally overturn the Constitution itself.”
- Elbridge Gerry
“I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius and character of the whole government. It will depend, perhaps, on this decision, whether the government shall retain that equilibrium which the Constitution intended, or take a direction towards aristocracy, or anarchy, among the members of the government. Hence, how careful ought we to be to give a true direction to a power so critically circumstanced! It is incumbent on us to weigh, with particular attention, the arguments which have been advanced in support of the various opinions with cautious deliberation. I own to you, Mr. Chairman, that I feel great anxiety upon this question. I feel an anxiety, because I am called upon to give a decision in a case that may affect the fundamental principles of the government under which we act, and liberty itself. But all that I can do, on such an occasion, is to weigh well every thing advanced on both sides, with the purest desire to find out the true meaning of the Constitution, and to be guided by that, and an attachment to the true spirit of liberty, whose influence I believe strongly predominates here. . . . .
“. . . .There is another maxim which ought to direct us in expounding the Constitution, and is of great importance. It is laid down in most of the constitutions, or bills of rights, in the republics of America,--it is to be found in the political writings of the most celebrated civilians, and is every where held as essential to the preservation of liberty,--that the three great departments of government be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification, in order more effectually to guard against an entire consolidation. . . .”
- James Madison
“...We are warned against betraying the liberties of our country: we are told that all powers tend to abuse: it is our duty, therefore, to keep them single and distinct. Where the executive swallows up the legislature, it becomes a despotism; where the legislature trenches upon the executive, it approaches towards despotism; and where they have less than is necessary, it approximates towards anarchy. . . .”
“We should be careful, therefore, to preserve the limits of each authority, in the present question. As it respects the power of the people, it is but of little importance; it is not pretended that the people have reserved the power of removing bad officers. It is admitted, on all hands, that the government is possessed of such power; consequently, the people can neither lose nor gain power by it. We are the servants of the people; we are the watchmen; and we should be unfaithful, in both characters, if we should so administer the government as to destroy its great principles and most essential advantages. The question now among us is, which of these servants shall exercise a power already granted. Wise and virtuous as the Senate may be, such a power lodged in their hands will not only tend to abuse, but cannot tend to any thing else. Need I repeat the inconveniences which will result from vesting it in the Senate? No. I appeal to that maxim which has the sanction of experience, and is authorized by the decision of the wisest men: to prevent an abuse of power, it must be distributed into three branches, who must be made independent, to watch and check each other: the people are to watch them all. While these maxims are pursued, our liberties will be preserved. It was from neglecting or despising these maxims, the ancient commonwealths were destroyed. A voice issues from the tomb which covers their ruins, and proclaims to mankind the sacredness of the truths that are at this moment in controversy.
“It is said that the Constitution has blended these powers which we advise to keep separate, and, therefore, we ought to follow in completing similar regulations; but gentlemen ought to recollect, that has been an objection against the Constitution; and if it is a well-founded one, we ought to endeavor, all that is in our power, to restrain the evil, rather than to increase it. But, perhaps, with the sole power of removal in the President, the check of the Senate in appointments may have a salutary tendency: in removing from office, their advice and consent are liable to all the objections that have been stated. It is very proper to guard the introduction of a man into office by every check that can properly be applied; but after he is appointed, there can be no use in exercising a judgment upon events which have heretofore taken place. If the Senate are to possess the power of removal, they will be enabled to hold the person in office, let the circumstances be what they may, that point out the necessity or propriety of his removal: it creates a permanent connection; it will nurse faction; it will promote intrigue to obtain protectors, and to shelter tools. Sir, it is infusing poison into the Constitution; it is an impure and unchaste connection: there is ruin in it: it is tempting the Senate with forbidden fruit: it ought not to be possible for a branch of the legislature even to hope for a share of the executive power; for they may be tempted to increase it. by a hope to share the exercise of it. People are seldom jealous of their own power; and if the Senate become part of the executive, they will be very improper persons to watch that department: so far from being champions for liberty, they will become conspirators against it.
“The executive department should ever be independent, and sufficiently energetic to defeat the attempts of either branch of the legislature to usurp its prerogative. But the proposed control of the Senate is setting that body above the President: it tends to establish an aristocracy. And at the moment we are endangering the principles of our free and excellent Constitution, gentlemen are undertaking to amuse the people with the sound of liberty. If their ideas should succeed, a principle of mortality will be infused into a government which the lovers of mankind have wished might last to the end of the world. With a mixture of the executive and legislative powers in one body, no government can long remain uncorrupt. With a corrupt executive, liberty may long retain a trembling existence. With a corrupt legislature, it is impossible: the vitals of the Constitution would be mortified, and death must follow in every step. A government thus formed would be the most formidable curse that could befall this country. Perhaps an enlightened people might timely foresee and correct the error; but if a season was allowed for such a compound to grow and produce its natural fruit, it would either banish liberty, or the people would he driven to exercise their unalienable right, the right of uncivilized nature, and destroy a monster whose voracious and capacious jaws could crush and swallow up themselves and their posterity.
“The principles of this Constitution, while they are adhered to, will perpetuate that liberty which it is the honor of Americans to have well contended for. The clause in the bill is calculated to support those principles; and for this, if there was no other reason, I should be inclined to give it my support.”
- Fisher Ames, The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 4]. (Removal by the President.--On the Bill for establishing an executive Department, to be denominated the Department of Foreign Affairs).
Friday, November 17, 2006
Debates in the Convention of the State of NO. Carolina, on the Adoption of the Federal Constitution: July 29, 1788
Mr. MACLAINE, (William),....But he imagines that the oath to be taken by officers will tend to the subversion of our state governments and of our liberty. Can any government exist without fidelity in its officers? Ought not the officers of every government to give some security for the faithful discharge of their trust? The officers are only to be sworn to support the Constitution, and therefore will only be bound by their oath so far as it shall be strictly pursued. No officer will be bound by his oath to support any act that would violate the principles of the Constitution. The gentleman has wandered out of his way to tell us -- what has so often been said out of doors -- that there is no declaration of rights; that consequently all our rights are taken away. It would be very extraordinary to have a bill of rights, because the powers of Congress are expressly defined; and the very definition of them is as valid and efficacious a check as a bill of rights could be, without the dangerous implication of a bill of rights. The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those rights which we have not given away to the general government. The gentleman is a professional man. If a gentleman had made his last will and testament, and devised or bequeathed to a particular person the sixth part of his property, or any particular specific legacy, could it be said that that person should have the whole estate? If they can assume powers not enumerated, there was no occasion for enumerating any powers. The gentleman is learned. Without recurring to his learning, he may only appeal to his common sense; it will inform him that, if we had all power before, and give away but a part, we still retain the rest. It is as plain a thing as possibly can be, that Congress can have no power but what we expressly give them....
Mr. SPENCER, (Samuel), Mr. Chairman, I hope to be excused for making some observations on what was said yesterday, by gentlemen, in favor of these two clauses. The motion which was made that the committee should rise, precluded me from speaking then. The gentlemen have showed much moderation and candor in conducting this business; but I still think that my observations are well founded, and that some amendments are necessary. The gentleman said, all matters not given up by this form of government were retained by the respective states. I know that it ought to be so; it is the general doctrine, but it is necessary that it should be expressly declared in the Constitution, and not left to mere construction and opinion. I am authorized to say it was heretofore thought necessary. The Confederation says, expressly, that all that was not given up by the United States was retained by the respective states. If such a clause had been inserted in this Constitution, it would have superseded the necessity of a bill of rights. But that not being the case, it was necessary that a bill of rights, or something of that kind, should be a part of the Constitution. It was observed that, as the Constitution is to be a delegation of power from the several states to the United States. a bill of rights was unnecessary. But it will be noticed that this is a different case.
The states do not act in their political capacities, but the government is proposed for individuals. The very caption of the Constitution shows that this is the case. The expression, "We, the people of the United States," shows that this government is intended for individuals; there ought, therefore, to be a bill of rights. I am ready to acknowledge that the Congress ought to have the power of executing its laws. Heretofore, because all the laws of the Confederation were binding on the states in their political capacities, courts had nothing to do with them; but now the thing is entirely different. The laws of Congress will be binding on individuals, and those things which concern individuals will be brought properly before the courts. In the next place, all the officers are to take an oath to carry into execution this general government, and are bound to support every act of the government, of whatever nature it may be. This is a fourth reason for securing the rights of individuals. It was also observed that the federal judiciary and the courts of the states, under the federal authority, would have concurrent jurisdiction with respect to any subject that might arise under the Constitution. I am ready to say that I most heartily wish that, whenever this government takes place, the two jurisdictions and the two governments -- that is, the general and the several state governments -- may go hand in hand, and that there may be no interference, but that every thing may be rightly conducted. But I will never concede that it is proper to divide the business between the two different courts. I have no doubt that there is wisdom enough in this state to decide the business, without the necessity of federal assistance to do our business. The worthy gentleman from Edenton dwelt a considerable time on the observations on a bill of rights, contending that they were proper only in monarchies, which were founded on different principles from those of our government; and, therefore, though they might be necessary for others, yet they were not necessary for us. I still think that a bill of rights is necessary. This necessity arises from the nature of human societies. When individuals enter into society, they give up some rights to secure the rest. There are certain human rights that ought not to be given up, and which ought in some manner to be secured. With respect to these great essential rights, no latitude ought to be left. They are the most inestimable gifts of the great Creator, and therefore ought not to be destroyed, but ought to be secured. They ought to be secured to individuals in consideration of the other rights which they give up to support society.
Mr. DAVIE, (William),....With respect to coercion by force, I shall suppose that it is so extremely repugnant to the principles of justice and the feelings of a free people, that no man will support it. It must, in the end, terminate in the destruction of the liberty of the people. . . . . Every member who has read the Constitution with attention must observe that there are certain fundamental principles in it, both of a positive and negative nature, which, being intended for the general advantage of the community, ought not to be violated by any future legislation of the particular states. Every member will agree that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to disregarded or violated. Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened. . . . . The people of the United States have one common interest; they are all members of the same community, and ought to have justice administered to them equally in every part of the continent, in the same manner, with the same despatch, and on the same principles. It is therefore absolutely necessary that the judiciary of the Union should have jurisdiction in all cases arising in law and equity under the Constitution. Surely there should be somewhere a constitutional authority for carrying into execution constitutional provisions: otherwise, as I have already said, they would be a dead letter....
...The honorable gentleman admits that the general government ought to legislate upon individuals, instead of states.
Its laws will otherwise be ineffectual, but particularly with respect to treaties. We have seen with what little ceremony the states violated the peace with Great Britain. Congress had no power to enforce its observance. The same cause will produce the same effect. We need not flatter ourselves that similar violations will always meet with equal impunity. I think he must be of opinion, upon reflection, that the jurisdiction of the federal judiciary could not have been constructed otherwise with safety or propriety. It is necessary that the Constitution should be carried into effect, that the laws should be executed, justice equally done to all the community, and treaties observed. These ends can only be accomplished by a general, paramount judiciary....
Mr. MACLAINE...I hope, sir, that all power is in the people, and not in the state governments. If he will not deny the authority of the people to delegate power to agents, and to devise such a government as a majority of them thinks will promote their happiness, he will withdraw his objection. The people, sir, are the only proper authority to form a government. They, sir, have formed their state governments, and can alter them at pleasure. Their transcendent power is competent to form this or any other government which they think promotive of their happiness. . . . . When the Confederation was made, we were by no means so well acquainted with the principles of government as we are now. We were then jealous of the power of our rulers, and had an idea of the British government when we entertained that jealousy. There is no people on earth so well acquainted with the nature of government as the people of America generally are. We know now that it is agreed upon by most writers, and men of judgment and reflection, that all power is in the people, and immediately derived from them. The gentleman surely must know that, if there be certain rights which never can, nor ought to, be given up, these rights cannot be said to be given away, merely because we have omitted to say that we have not given them up. Can any security arise from declaring that we have a right to what belongs to us? Where is the necessity of such a declaration? If we have this inherent, this unalienable, this indefeasible title to those rights, if they are not given up, are they not retained? If Congress should make a law beyond the powers and the spirit of the Constitution, should we not say to Congress, "You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt."
Mr. IREDELL, (James),....It appears to me most extraordinary. Shall we give up any thing but what is positively granted by that instrument? It would be the greatest absurdity for any man to pretend that, when a legislature is formed for a particular purpose, it can have any authority but what is so expressly given to it, any more than a man acting under a power of attorney could depart from the authority it conveyed to him, according to an instance which I stated when speaking on the subject before. As for example: -- if I had three tracts of land, one in Orange, another in Caswell, and another in Chatham, and I gave a power of attorney to a man to sell the two tracts in Orange and Caswell, and he should attempt to sell my land in Chatham, would any man of common sense suppose he had authority to do so? In like manner, I say, the future Congress can have no right to exercise any power but what is contained in that paper. Negative words, in my opinion, could make the matter no plainer than it was before. The gentleman says that unalienable rights ought not to be given up. Those rights which are unalienable are not alienated. They still remain with the great body of the people. If any right be given up that ought not to be, let it be shown. Say it is a thing which affects your country, and that it ought not to be surrendered: this would be reasonable. But when it is evident that the exercise of any power not given up would be a usurpation, it would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.
Mr. BLOODWORTH.... I still see the necessity of a bill of rights. Gentlemen use contradictory arguments on this subject, if I recollect right. Without the most express restrictions, Congress may trample on your rights. Every possible precaution should be taken when we grant powers. Rulers are always disposed to abuse them. I beg leave to call gentlemen's recollection to what happened under our Confederation. By it, nine states are required to make a treaty; yet seven states said that they could, with propriety, repeal part of the instructions given our secretary for foreign affairs, which prohibited him from making a treaty to giveup the Mississippi to Spain, by which repeal the rest of his instructions enabled him to make such treaty. Seven states actually did repeal the prohibitory part of these instructions, and they insisted it was legal and proper. This was in fact a violation of the Confederation. If gentlemen thus put what construction they please upon words, how shall we be redressed, if Congress shall say that all that is not expressed is given up, and they assume a power which is expressly inconsistent with the rights of mankind? Where is the power to pretend to deny its legality? This has occurred to me, and I wish it to be explained....
Mr. SPENCER. Mr. Chairman, the gentleman expresses admiration as to what we object with respect to a bill of rights, and insists that what is not given up in the Constitution is retained. He must recollect I said, yesterday, that we could not guard with too much care those essential rights and liberties which ought never to be given up. There is no express negative -- no fence against their being trampled upon. They might exceed the proper boundary without being taken notice of. When there is no rule but a vague doctrine, they might make great strides, and get possession of so much power that a general insurrection of the people would be necessary to bring an alteration about. But if a boundary were set up, when the boundary is passed, the people would take notice of it immediately. These are the observations which I made; and I have no doubt that, when he reflects, he will acknowledge the necessity of it. I acknowledge, however, that the doctrine is right; but if that Constitution is not satisfactory to the people, I would have a bill of rights, or something of that kind, to satisfy them....
Thursday, November 16, 2006
To All,I understand that the Federal Judge declared Hollis Wayne Fincher such a danger to the community, law enforcement, the ATF, and possibly the Judge herself, and a flight risk, that she imposed incredible restrictions on him, were he to be released....
Click on headline to read the rest of the article. It is clear that our intended Constitutional Republic is not operating as intended. The courts have left off from performing the duty that they swore a solemn oath to do. The people currently operating in our government should be ashamed of themselves. For they have intentially destroyed our form of government. And one can't help but wonder what or whom they will destroy next.
Debates in the Convention of the State of NO. Carolina, on the Adoption of the Federal Constitution: Again, cont'd....
Mr. IREDELL, (James), ....It is to be hoped that the gentlemen who will be honored with seats in Congress will faithfully execute their trust, as well in attending as in every other part of their duty. An objection of this sort will go against all government whatever. Possible abuse, and neglect of attendance, are objections which may be urged against any government which the wisdom of man is able to construct. . . . . I believe, on a serious consideration, it will be found that it was necessary, for the reasons mentioned by the gentleman from Halifax, to vest the power in the Senate, or in some other body representing equally the sovereignty of the states, and that the power, as given in the Constitution, is not likely to be attended with the evils which some gentlemen apprehend. The only real security of liberty, in any country, is the jealousy and circumspection of the people themselves. Let them be watchful over their rulers. Should they find a combination against their liberties, and all other methods appear insufficient to preserve them, they have, thank God, an ultimate remedy. That power which created the government can destroy it. . . .A constitutional mode of altering the Constitution itself is, perhaps, what has never been known among mankind before. We have this security, in addition to the natural watchfulness of the people, which I hope will never be found wanting. The objections I have answered deserved all possible attention; and for my part, I shall always respect that jealousy which arises from the love of public liberty....
Article 3d, 1st and 2d sections, read.
Mr. SPENCER, (Samuel). Mr. Chairman, I have objections to this article. I object to the exclusive jurisdiction of the federal court in all cases of law and equity arising under the Constitution and the laws of the United States, and to the appellate jurisdiction of controversies between the citizens of different states, and a few other instances. To these I object, because I believe they will be oppressive in their operation. I would wish that the federal court should not interfere, or have any thing to do with controversies to the decision of which the state judiciaries might be fully competent, nor with such controversies as must carry the people a great way from home. With respect to the jurisdiction of cases arising under the Constitution, when we reflect on the very extensive objects of the plan of government, the manner in which they may arise, and the multiplicity of laws that may be made with respect to them, the objection against it will appear to be well founded. If we consider nothing but the articles of taxation, duties, and excises, and the laws that might be made with respect to these, the cases will be almost infinite. If we consider that it is in contemplation that a stamp duty shall take place throughout the continent; that all contracts shall be on stamp paper; that no contracts shall be of validity but what would be thus stamped, -- these cases will be so many that the Consequences would be dreadful. It would be necessary to appoint judges to the federal Supreme Court, and other inferior departments, and such a number of inferior courts in every district and county, with a correspondent number of officers, that it would cost an immense expense without any apparent necessity, which must operate to the distress of the inhabitants. There will be, without any manner of doubt, clashings and animosities between the jurisdiction of the federal courts and of the state courts, so that they will keep the country in hot water. It has been said that the impropriety of this was mentioned by some in the Convention. I cannot see the reasons of giving the federal courts jurisdiction in these cases; but I am sure it will occasion great expense unnecessarily. The state judiciaries will have very little to do. It will be almost useless to keep them up. As all officers are to take an oath to support the general government, it will carry every thing before it. This will produce that consolidation through the United States which is apprehended. I am sure that I do not see that it is possible to avoid it. I can see no power that can keep up the little remains of the power of the states. Our rights are not guarded. There is no declaration of rights, to secure to every member of the society those unalienable rights which ought not to be given up to any government. Such a bill of rights would be a check upon men in power. Instead of such a bill of rights, this Constitution has a clause which may warrant encroachments on the power of the respective state legislatures. I know it is said that what is not given up to the United States will be retained by the individual states. I know it ought to be so, and should be so understood; but, sir, it is not declared to be so. In the Confederation it is expressly declared that all rights and powers, of any kind whatever, of the several states, which are not given up to the United States, are expressly and absolutely retained, to be enjoyed by the states. There ought to be a bill of rights, in order that those in power may not step over the boundary between the powers of government and the rights of the people, which they may do when there is nothing to prevent them. They may do so without a bill of rights; notice will not be readily taken of the encroachments of rulers, and they may go a great length before the people are alarmed. Oppression may therefore take place by degrees; but if there were express terms and bounds laid down, when these were passed by, the people would take notice of them, and oppressions would not be carried on to such a length. I look upon it, therefore, that there ought to be something to confine the power of this government within its proper boundaries. I know that several writers have said that a bill of rights is not necessary in this country; that some states had the not, and that others had. To these I answer, that those states that have them not as bills of rights, strictly so called, have them in the frame of their constitution, which is nearly the same.
There has been a comparison made of our situation with Great Britain. We have no crown, or prerogative of a king, like the British constitution. I take it, that the subject has been misunderstood. In Great Britain, when the king attempts to usurp the rights of the people, the declaration and bill of rights are a guard against him. A bill of rights would be necessary here to guard against our rulers. I wish to have a bill of rights, to secure those unalienable rights, which are called by some respectable writers the residuum of human rights, which are never to be given up. At the same time that it would give security to individuals, it would add to the general strength. It might not be so necessary to have a bill of rights in the government of the United States, if such means had not been made use of as endanger a consolidation of all the states; but at any event, it would be proper to have one, because, though it might not be of any other service, it would at least satisfy the minds of the people. It would keep the states from being swallowed up by a consolidated government. For the reasons I before gave, I think that the jurisdiction of the federal court, with respect to all cases in law and equity, and the laws of Congress, and the appeals in all cases between citizens of different states, &c., is inadmissible. I do not see the necessity that it should be vested with the cognizance of all these matters. I am desirous, and have no objection to their having one Supreme Federal Court for general matters; but if the federal courts have cognizance of those subjects which I mentioned, very great oppressions may arise....
Wednesday, November 15, 2006
Debates in the Convention of the State of NO. Carolina, on the Adoption of the Federal Constitution: Cont'd.
Mr. GOUDY, (William). Mr. Chairman, this is a dispute whether Congress shall have great, enormous powers. I am not able to follow these learned gentlemen through all the labyrinths of their oratory. Some represent us as rich, and not honest; and others again represent us as honest, and not rich. We have no gold or silver, no substantial money, to pay taxes with. This clause, with the clause of elections, will totally destroy our liberties. The subject of our consideration therefore is, whether it be proper to give any man, or set of men, an unlimited power over our purse, without any kind of control. The purse-strings are given up by this clause. The sword is also given up by this system. Is there no danger in giving up both? There is no danger, we are told. It may be so; but I am jealousy and suspicious of the liberties of mankind. And if it be a character which no man wishes but myself, I am willing to take it. Suspicions, in small communities, are a pest to mankind; but in a matter of this magnitude, which concerns the interest of millions yet unborn, suspicion is a very noble virtue. Let us see, therefore, how far we give power; for when it is once, given, we cannot take it away. It is said that those who formed this Constitution were great and good men. We do not dispute it. We also admit that great and learned people have adopted it. But I have a judgment of my own; and, though not so well informed always as others, yet I will exert it when manifest danger presents itself. When the power of the purse and the sword is given up, we dare not think for ourselves. In case of war, the last man and the last penny would be extorted from us. That the Constitution has a tendency to destroy the state governments, must be clear to every man of common understanding. Gentlemen, by their learned arguments, endeavor to conceal the danger from us. I have no notion of this method of evading arguments, and of clouding them over with rhetoric, and, I must say, sophistry too. But I hope no man will be led astray with them....
...Mr PORTER, (William). Mr Chairman, I must say that I think the gentleman last up, (Gov. Johnston), was wrong; for the other gentleman was, in my opinion, right. This is a money clause. I would fain know: whence this power originates. I have heard it said that the legislature were villains, and that this power was to be exercised by the representatives of the people. When a building is raised, it should be on solid ground. Every gentleman must agree that we should not build a superstructure on a foundation of villains. Gentlemen say that the mass of the people are honest. I hope gentlemen will consider that we should build the structure on the people, and not on the representatives of the people. Agreeably to the gentleman's argument, (Mr Hill,) our representatives will be mere villains. I expect that very learned arguments, and powerful oratory, will be displayed on this occasion. I expect that the great cannon from Halifax (meaning Mr Davie) will discharge fire-balls among us; but large batteries are often taken by small arms....
.... Mr. DAVIE, (William). Mr. Chairman, although treaties are mere conventional acts between the contracting parties, yet, by the law of nations, they are the supreme law of the land to their respective citizens or subjects. All civilized nations have concurred in considering them as paramount to an ordinary act of legislation. This concurrence is founded on the reciprocal convenience and solid advantages arising from it. A due observance of treaties makes nations more friendly to each other, and is the only means of rendering less frequent those mutual hostilities which tend to depopulate and ruin contending nations. It extends and facilitates that commercial intercourse, which, founded on the universal protection of private property, has, in a measure, made the world one nation.
Let's see now. One of he main people involved in constructing the Constitution had mentioned something about 'property'. Who was that? Oh yes, now I remember;
"As a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions."
- James Madison, National Gazette Essay, 27 March 1792
Tuesday, November 14, 2006
Monday, November 13, 2006
Debates in the Convention of the State of NO. Carolina, on the Adoption of the Federal Constitution:
Mr. Chairman, I conceive that I shall not be out of order to make some observations on this last part of the system, and take some retrospective view of some other parts of it. I think it not proper for our adoption, as I consider that it endangers our liberties. When we consider this system collectively, we must be surprised to think that any set of men, who were delegated to amend the Confederation, should propose to annihilate it; for that and this system are utterly different, and cannot exist together. It has been said that the fullest confidence should be put in those characters who formed this Constitution. We will admit them, in private and public transactions, to be good characters. But, sir, it appears to me, and every other member of this committee, that they exceeded their powers. Those gentlemen had no sort of power to form a new constitution altogether; neither had the citizens of this country such an idea in their view. I cannot undertake to say what principles actuated them. I must conceive they were mistaken in their politics, and that this system does not secure the unalienable rights of freemen. It has some aristocratical and some monarchical features, and perhaps some of them intended the establishment of one of these governments. Whatever might be their intent, according to my views, it will lead to the most dangerous aristocracy
that ever was thought of--an aristocracy established on a constitutional bottom! I conceive (and I believe most of this committee will likewise) that this is so dangerous, that I should like as well to have no constitution at all. Their powers are almost unlimited.
A constitution ought to be understood by every one. The most humble and trifling characters in the country have a right to know what foundation they stand upon. I confess I do not see the end of the powers here proposed, nor the reasons for granting them. The principal end of a constitution is to set forth what must be given up for the community at large, and to secure those rights which ought never to be infringed. The proposed plan secures no right; or, if it does, it is in so vague and undeterminate a manner, that we do not understand it. My constituents instructed me to oppose the adoption of this Constitution. The principal reasons are as follow: The right of representation is not fairly and explicitly preserved to the people, it being easy to evade that privilege as provided in this system, and the terms of election being too long. If our General Assembly be corrupt, at the end of the year we can make new men of them by sending others in their stead. It is not so here. If there be any reason to think that human nature is corrupt, and that there is a disposition in men to aspire to power, they may embrace an opportunity, during their long continuance in office, by means of their powers, to take away the rights of the people. The senators are chosen for six years, and two thirds of them, with the President, have most extensive powers. They may enter into a dangerous combination. And they may be continually reëlected. The President may be as good a man as any in existence, but he is but a man. He may be corrupt. He has an opportunity of forming plans dangerous to the community at large. I shall not enter into the minutiæ of this system, but I conceive, whatever may have, been the intention of its framers, that it leads to a most dangerous aristocracy. It appears to me that, instead of securing the sovereignty of the states, it is calculated to melt them down into one solid empire. If the citizens of this state like a
consolidated government, I hope they will have virtue enough to secure their rights. I am sorry to make use of the expression, but it appears to me to be a scheme to reduce this government to an aristocracy. It guaranties a republican form of government to the states; when all these powers are in Congress, it will only be a form. It will be past recovery, when Congress has the power of the purse and the sword. The power of the sword is in explicit terms given to it. The power of direct taxation gives the purse. They may prohibit the trial by jury, which is a most sacred and valuable right. There is nothing contained in this Constitution to bar them from it. The federal courts have also appellate cognizance of law and fact; the sole cause of which is to deprive the people of that trial, which it is optional in them to grant or not. We find no provision against infringement on the rights of conscience. Ecclesiastical courts may be established which will be destructive to our citizens. They may make any establishment they think proper. They have also an exclusive legislation in their ten miles square, to which may be added their power over the militia, who may be carried thither and kept there for life. Should any one grumble at their acts, he would be deemed a traitor, and perhaps taken up and carried to the exclusive legislation, and there tried without a jury. We are told there is no cause to fear. When we consider the great powers of Congress, there is great cause of alarm. They can disarm the militia. If they were armed, they would be a resource against great oppressions. The laws of a great empire are difficult to be executed. If the laws of the Union were oppressive, they could not carry them into effect, if the people were possessed of proper means of defence.
It was cried out that we were in a most desperate situation, and that Congress could not discharge any of their most sacred contracts. I believe it to be the case. But why give more power than is necessary? The men who went to the Federal Convention went for the express purpose of amending the government, by giving it such additional powers as were necessary. If we should accede to this system, it may be thought proper, by a few designing persons, to destroy it, in a future age, in the same manner that the old system is laid aside. The Confederation was binding on all the states. It could not be destroyed but with the consent of all the states. There was an express article to that purpose. The men who were deputed to the Convention, instead of amending the old, as they were solely empowered and directed to do, proposed a new system. If the best characters departed so far from their authority, what may not be apprehended from others, who may be agents in the new government?
It is natural for men to aspire to power--it is the nature of mankind to be tyrannical; therefore it is necessary for us to secure our rights and liberties as far as we can. But it is asked why we should suspect men who are to be chosen by ourselves, while it is their interest to act justly, and while men have self-interest at heart. I think the reasons which I have given are sufficient to answer that question. We ought to consider the depravity of human nature, the predominant thirst of power which is in the breast of every one, the
temptations our rulers may have, and the unlimited confidence placed in them by this system. These are the foundation of my fears, They would be so long in the general government that they would forget the grievances of the people of the states.
But it is said we shall be ruined if separated from the other states, which will be the case if we do not adopt. If so, I would put less confidence in those states. The states are all bound together by the Confederation, and the rest cannot break from us without violating the most solemn compact. If they break that, they will this.
But it is urged that we ought to adopt, because so many other states have. In those states which have patronized and ratified it, many great men have opposed it. The motives of those states I know not. It is the goodness of the Constitution we are to examine. We are to exercise our own judgments, and act independently. And as I conceive we are not out of the Union, I hope this Constitution will not be adopted till amendments are made. Amendments are wished for by the other states. It was urged here that the President should have power to grant reprieves and pardons. This power is necessary with proper restrictions. But the President may be at the head of a combination against the rights of the people, and may reprieve or pardon the whole, It is answered to this, that he cannot pardon in cases of impeachment, What is the punishment in such cases? Only removal from office and future disqualification. It does not touch life or
property. He has power to do away punishment in every other ease. It is too unlimited, in my opinion. It may be exercised to the public good, but may also be perverted to a different purpose. Should we get those who will attend to our interest, we should be safe under any Constitution, or without any. If we send men of a different disposition, we shall be in danger. Let us give them only such powers as are necessary for the good of the community. The President has other great powers. He has the nomination of all officers, and a
qualified negative on the laws. He may delay the wheels of government. He may drive the Senate to concur with his proposal. He has other extensive powers. There is no assurance of the liberty of the press. They may make it treason to write against the most arbitrary proceedings. They have power to control our elections as much as they please. It may be very oppressive on this state, and all the Southern States....
...I wish not to be so understood as to be so averse to this system, as that I should object to all parts of it, or attempt to reflect on the reputation of those gentlemen who formed it; though it appears to me that I would not have agreed to any proposal but the amendment of the Confederation. If there were any security for the liberty of the people, I would, for my own part, agree to it. But in this case, as millions yet unborn are concerned, and deeply interested in our decision, I would have the most positive and pointed security. I shall therefore hope that, before this house will proceed to adopt this Constitution, they will propose such amendments to it as will make it complete; and when amendments are adopted, perhaps I will be as ready to accede to it as any man. One thing will make it aristocratical. Its powers are very indefinite. There was a very necessary clause in the Confederation, which is omitted in this system. That was a clause declaring that every power, &c., not given to Congress, was reserved to the states. The omission of this clause makes the power so much greater. Men will naturally put the fullest construction on the power given them. Therefore lay all restraint on them, and form a plan to be understood by every gentleman of this committee, and every individual of the community....
July 30, 1788