USA > Virginia > The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body, Vol. I > Part 16
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and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have more frequently than any other cause produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have gener- ally resulted from those causes. If we consider the peculiar situation of the United States, and what are the sources of that diversity of sentiment which pervades their inhabitants, we shall find great danger to fear that the same causes may terminate here in the same fatal effects which they produced in those re- publics. This danger ought to be wisely guarded against. Per- haps in the progress of this discussion it may appear that the only possible remedy for those evils, and the means of preserv- ing and protecting the principles of republicanism, will be found in that very system which is now exclaimed against as the parent of oppression."
He next reverts to Henry's observation that the people were at peace until the new system was put upon them : "I wish sin- cerely, sir, this were true. If this be their happy situation, why has every State acknowledged the contrary ? Why were depu- ties from all the States sent to the General Convention? Why have complaints of national and individual distresses been echoed and re-echoed throughout the continent? Why has our general government been so shamefully disgraced and our Constitution violated? Wherefore have laws been made to authorize a change, and wherefore are we now assembled here ?"130 After
130 This argument, when used by Mr. Madison, was hardly fair. He knew that the Annapolis resolution had brought about the present state of things, and that he had offered that resolution when Virginia had settled upon a plan to arrange her commercial relations with Mary- land, Pennsylvania, and other States. That arrangement was com- pleted by the Assembly by the selection of five delegates, consisting of St. George Tucker, William Ronald, Robert Townsend Hooe, Thomas Pleasants, and Francis Corbin, on the 25th of November. 1786, and it was believed that our Federal relations were at an end for the session, and a large number of the members had probably left for their homes ; when, on the 30th of the same month, or five days later, and on the last day of the session, Mr. Madison caused the Annapolis resolution to be called up, to be hurried through the House, and sent to the Senate, which body passed it within an hour after receiving it. But two mem- bers in the House opposed the resolution. It was plain that the sequel
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replying to Henry's arguments on the majority of three-fourths, on the exclusive legislation of Congress in the federal district, on the provision concerning the militia, and on the tendency of power once transferred never to be voluntarily renounced, he discussed the objection that the raising and supporting of armies
of the resolution was mainly a matter of course, and afforded no legiti- mate argument to Mr. Madison, who was privy to the whole game. Nor was it quite fair for Mr. Madison to talk of the Constitution of the State as having been violated. These so-called violations were by acts of the Assembly, not by violence ; and on Madison's own principles the Legislature might be authorized to take what liberties they pleased with that instrument ; for he contended in his speech on the Conven- tion question in the House of Delegates, at the May session of 1784, that the Convention of May. 1776, which framed the Constitution, was "without due power from the people ;" that it was framed in conse- quence of the recommendation of Congress of the 15th of May (which is a great mistake, as the Virginia resolution of absolute independence was adopted on that very day, and a resolution to report a plan of gov- ernment for an independent State also, while the resolution of the 15th of May [or rather the roth, see Folwell's edition of the Journals of Congress, II, 158], which was only a re-enactment of the resolution of Congress of the previous year, advising the colonies to form such a plan of government "as would most effectually secure good order in the province during the present dispute between Great Britain and the colonies," was a temporizing measure only), which was prior to the Declaration of Independence ; that the Convention that framed the Constitution did not " pretend " that they had received "any power from the people " for that purpose; that they passed other ordinances during the same session that were deemed "alterable ;" that they made themselves a branch of the Legislature under the Constitution which they had framed; that the Constitution, if it be so called, etc., etc. (Rives' Madison, I, 559.) It is thus evident that in Madison's de- liberate judgment the Constitution of Virginia had no higher dignity than other ordinances of the Convention, which all admit were altera- ble ; and that it was competent for the legislature, in Mr. Madison's opinion, to alter the instrument at pleasure. It was then a little pru- dish to blame the Assembly for doing what they had a right to do, or to apply any other test than that of expediency to their action. We have shown in a previous note our views upon this subject, and will merely add that Mr. Randolph's views were quite as capricious as those of Mr. Madison, as that gentleman alleged in the course of one of his speeches in Convention that the Declaration of Rights was no part of the Constitution, and, of course, of no obligation whatever. It is necessary to know what ideas these gentlemen had of the Constitu- tion before we can estimate what they call "violations " of it.
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was a dangerous element in the Constitution. With apparent candor he declared that he wished there was no necessity of vesting this power in the general Government. "But," he said, "suppose a foreign nation to declare war against the United States ; must not the general legislature have the power of de- fending the United States ? Ought it to be known to foreign nations that the general Government of the United States of America has no power to raise and support an army, even in the utmost danger, when attacked by external enemies? Would not their knowledge of such a circumstance stimulate them to fall upon us? If, sir, Congress be not invested with this power, any powerful nation, prompted by ambition or avarice, will be invited by our weakness to attack us ; and such an attack by disciplined veterans would certainly be attended with success when only op- posed by irregular, undisciplined militia. Whoever considers the peculiar situation of this country, the multiplicity of its ex- cellent inlets and harbors, and the uncommon facility of attack- ing it-however he may regret the necessity of such a power- cannot hesitate a moment in granting it. One fact may elucidate this argument. In the course of the late war, when the weak parts of the Union were exposed, and many States were in the most deplorable condition by the enemies ravages, the assistance of foreign nations was thought so urgently necessary for our protection that the relinquishment of territorial advantages was not deemed too great a sacrifice for the acquisition of one ally. This expedient was admitted with great reluctance, even by those States who expected advantages from it. The crisis, however, at length arrived, when it was judged necessary for the salvation of this country to make certain cessions to Spain, whether wisely or otherwise is not for me to say ; but the fact was that instruc- tions were sent to our representative at the court of Spain to empower him to enter into negotiations for that purpose. How it terminated is well known. This fact shows the extremities to which nations will go in cases of imminent danger, and demon- strates the necessity of making ourselves more respectable. The necessity of making dangerous cessions, and of applying to for- eign aid, ought to be excluded."
When he had replied to the argument derived from the policy of the Swiss Cantons in their confederate alliance, and stated his impression that uniformity of religion, which he thought ineligi-
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ble, would not necessarily flow from uniformity of government, and that the government had no jurisdiction over religion, he adverted to the policy of previous amendments, contending that if amendments are to be proposed by one State, other States have the same right, and will also propose alterations, which would be dissimilar and opposite in their nature. " I beg leave," he said, "to remark that the governments of the different States are in many respects dissimilar in their structure ; their legisla- tive bodies are not similar ; their executive are more different. In several of the States the first magistrate is elected by the peo- ple at large ; in others by joint ballot of the members of both branches of the legislature; and in others in a different mode still. This dissimilarity has occasioned a diversity of opinion on the theory of government, which will, without many reciprocal concessions, render a concurrence impossible. Although the appointment of an executive magistrate has not been thought destructive to the principles of democracy in many of the States, yet, in the course of the debate, we find objections to the federal executive. It is argued that the President will degenerate into a tyrant. I intended, in compliance with the call of the honor- able member, to explain the reasons of proposing this Constitu- tion and develop its principles ; but I shall postpone my remarks till we hear the supplement, which, he has informed us, he in- tends to add to what he has already said."
He next investigated the nature of the government, and whether it was a consolidated system as had been urged by Henry. On this subject, he said, "there are a number of opinions ; but the principal question is whether it be a federal or consolidated government. In order to judge properly of the question before us, we must consider it minutely in its principal parts. I conceive myself that it is of a mixed nature ; it is in a manner unprecedented. We cannot find one express example in the experience of the world. It stands by itself. In some re- spects it is a government of a federal nature ; in others it is of a consolidated nature. Even if we attend to the manner in which the Constitution is investigated, ratified, and made the act of the people of America, I can say, notwithstanding what the honorable gentleman has alleged, that this Government is not completely consolidated, nor is it entirely federal. Who are parties to it ? The people-but not the people as composing one
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great body ; but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of the majority of the people would be sufficient for its establishment ; and as a majority has adopted it already, the remaining States would be bound by the act of the majority, even if they unanimously reprobated it. Were it such a gov- ernment as suggested, it would now be binding upon the people of this State, without their having had the privilege of deliberating upon it.131 But, sir, no State is bound by it, as it is without its own consent. Should all the States adopt it, it will then be a government established by the thirteen States of America, not through the intervention of the legislature, but by the people at large. In this particular respect the distinction between the ex- isting and proposed governments is very material. The existing system has been derived from the dependent derivative au- thority of the legislatures of the States ; whereas this is derived from the superior power of the people. If we look at the man- ner in which alterations are to be made in it, the same idea is in some degree attended to. By the new system a majority of the States cannot introduce amendments; nor are all the States re- quired for that purpose. Three-fourths of them must concur in alterations ; in this there is a departure from the federal idea. The members to the national House of Representatives are to be chosen by the people at large, in proportion to the numbers in the respective districts. When we come to the Senate, its members are elected by the States in their equal and political capacity. But had the Government been completely consolidated, the Senate would have been chosen by the people in their indi- vidual capacity, in the same manner as the members of the other house. Thus it is of a complicated nature, and this complica- tion will, I trust, be found to exclude the evils of absolute con- solidation, as well as of a mere confederacy. If Virginia was separated from all the States, her power and authority would ex- tend to all cases ; in like manner, were all powers vested in the general Government it would be a consolidated government; but the powers of the Federal Government are enumerated ; it can
181 This is an obvious sophism. Each State is called upon in the usual mode to say whether a particular system, be that system what it may, shall be henceforth its plan of government. Its mode of assent or dissent from the scheme cannot be called a part of the scheme itself.
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only operate in certain cases ; it has legislative powers on de- fined and limited objects, beyond which it cannot extend its juris- diction."
This reasoning of Madison, in seeking to establish the nature of a government from the mode of conducting elections pre- scribed by the rule creating it, is sophistical and unjust, and wars at once with sound philosophy and simple truth. Had William the Third been elected under the declaration of right by the people of Great Britain, assembled at the polls, instead of a con- vention of both houses of Parliament, the nature of the govern- ment which he was invited to administer would not have been altered by the change. He would still have been the King of England, the occupant of a hereditary throne, bound to rule according to the instrument which contained his right to the crown. Nor is the case altered by the frequent recurrence of elections under a particular system. The mode of electing the agents of that system cannot affect the nature of the system itself, which is fixed and unalterable except in the way agreed upon by its framers. It is evident that Madison believed the new government to be a consolidated system. The favorite term of a complete consolidation is a mere play upon words. A govern- ment must be either integral or federal. In can no more be both than an individual can-like the fabulous centaur of antiquity, be at one and the same time half a man and half a brute. If he is human at all he is human all over ; if he is a brute at all he is a brute all over. So with a collection of human beings united in a political system. If that system is integral at all it is wholly integral ; if federal at all it is wholly federal. Details may com- plicate and disguise, but cannot alter the nature of the thing.
Thus the new constitution was the chart of a strictly federal system. Had not Madison been swayed by early prepossessions, his admirable powers of analysis and his unrivalled stores of historic lore would have enabled him to furnish a conclusive answer to the arguments of Mason and of Henry, and to force those able men from their strongest ground to a contest on the mere details of the constitution-a ground peculiarly his own. Ten years later the true argument would instantly have risen to his lips. He would have said that compacts between States, like compacts between private persons, might be as various as the necessities or interests of the parties should require ; that a com-
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pact which should embrace an infinite variety of details bearing directly or indirectly on persons and things, however voluminous, was as strictly a federal alliance as an ordinary treaty of a few sections. Under the Confederation, he might have said, the legis- lative, judicial and executive powers were vested in a single body which might exercise them in the manner most conducive to the public welfare ; that revenue was obtained by requisitions on the States ; and that all control over the customs was denied to Con- gress; that the same parties which made these arrangements could abolish them and substitute others in their place ; might decree that the legislative, judicial and executive powers should be exercised by separate bodies under certain limitations ; that money should be obtained by levying a tax on persons and things in any given mode ; that the entire revenue accruing from customs should be appropriated by the central agency ; that these and other changes might be made, and that the nature of the federal alliance, however changed in outward form, would be no more changed in reality than an individual would be changed by throw- ing off the clothing of one season and putting on the clothing of another.
When Madison had concluded his review of the nature of the proposed Government, he adverted to the argument of Henry against the large powers which had been conferred by the Consti- tution on Congress. "I conceive," he said, "that the first ques . tion on this subject is whether these powers be necessary ; if they be, we are reduced to the dilemma of either submitting to the inconvenience or of losing the Union. Let us consider the most important of these reprobated powers; that of direct taxation is most generally objected to. With respect to the exigencies of government, there is no question but the most easy mode for providing for them will be adopted. When, therefore, direct taxes are not necessary they will not be recurred to. It can be of little advantage to those in power to raise money in a manner oppressive to the people. To consult the conveniences of the people will cost them nothing, and in many respects will be ad- vantageous to them. Direct taxes will only be recurred to for great purposes. What has brought on other nations those im- mense debts, under the pressure of which many of them labor ? Not the expenses of their governments, but war. If this country should be engaged in war-and I conceive we ought to provide
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for the possibility of such a case-how would it be carried on ? By the usual means provided from year to year? As our im- ports will be necessary for the expenses of government and other common exigencies, how are we to carry on the means of de- :- fense? How is it possible a war could be supported without money or credit ? And would it be possible for a government to have credit without having the power of raising money ? No ; it would be impossible for any government in such a case to de- fend itself. Then, I say, sir, that it is necessary to establish funds for extraordinary exigencies, and to give this power to the general Government ; for the utter inutility of previous requisi tions upon the States is too well known. Would it be possible for those countries, whose finances and revenues are carried to the highest perfection, to carry on the operations of government on great emergencies, such as the maintenance of a war, without an uncontrolled power of raising money? Has it not been necessary for Great Britain, notwithstanding the facility of the collection of her taxes, to have recourse very often to this and other extraordinary methods of procuring money ? Would not her public credit have been ruined if it was known that her power to raise money was limited ? Has not France been obliged on great occasions to use unusual means to raise funds ? It has been the case in many countries, and no government can exist unless its powers extend to make provisions for every contin- gency. If we were actually attacked by a powerful nation, and our general Government had not the power of raising money, but depended solely on requisitions, our condition would be truly deplorable ; if the revenue of this Commonwealth were to de- pend on twenty distinct authorities, it would be impossible for it to carry on its operations. This must be obvious to every mem- ber here; I think, therefore, that it is necessary, for the preser- vation of the Union, that this power shall be given to the general Government."
It had been urged by Henry and Mason that the consolidated nature of the Government, combined with the power of direct taxation, would eventually destroy all subordinate authority, and result in the absorption of the State governments. Madison thought that this would not be the case. "If the general Gov- ernment," he said, " were wholly independent of the govern- ments of the particular States, then indeed, usurpation might be
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expected to the fullest extent. But, sir, on whom does this gen- eral Government depend? It derives its authority from these governments, and from the same sources from which their au- thority is derived. The members of the Federal Government are taken from the same men from whom those of the State leg- islatures are taken. If we consider the mode in which the fed- eral representatives will be chosen, we shall be convinced that the general will never destroy the individual governments; and this conviction must be strengthened by an attention to the con- struction of the Senate. The representatives will be chosen probably under the influence of the members of the State legis- latures ; but there is not the least probability that the election of the latter will be influenced by the former. One hundred and sixty members represent this Commonwealth in one branch of the legislature, are drawn from the people at large, and must ever possess more influence than the few men who will be elected to . the general legislature."
He concluded by showing that the members of Congress would depend for their election on the popular men in the differ- ent counties, and the members of the Senate, appointed by the legislatures, would not be likely to forget or defy the source of their existence; that the biennial exclusion of one-third of the number of Federal senators would lessen the facility of combi- nations ; that the members of Congress had hitherto "signalized themselves by their attachment to their seats," and were not likely to neglect the interests of their constituents : closing this remarkable speech in these words: "I wish this Government may answer the expectation of its friends, and foil the apprehen- sions of its enemies. I hope the patriotism of the people will continue, and be a sufficient guard to their liberties. I believe its tendency will be that the State governments will counteract the general interest and ultimately prevail. The number of rep- resentatives is yet sufficient for our safety and will gradually in- crease ; and if we consider their different sources of information, the number will not appear too small."
It must ever be a source of regret to the student of history that a more extended report of this speech, revised by its author, has not been preserved. With all the faithful care of Robertson the existing report is hardly more than an outline of the original. The beautiful philosophy with which he illustrated the various
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causes which led to the loss of liberty among the nations of the earth wholly escaped the reporter ; and when, forty years later, an opportunity was presented on the republication of the debates to fill the void, a refined sense of delicacy, which we may admire while we deplore the result, impelled him to decline it.
But, however attractive and eloquent was the performance of Randolph ; however rich in the philosophy of history and in its application to the subject in hand, and in its wonderful display of the probable working of the new system, was the effort of Madison ; the speech which was now to be made, was, in logical vigor and practical sense, and in its present force on a popular body, perhaps more effective than either of its predecessors of this remarkable day.
George Nicholas succeeded Madison in the debate. Of all . the friends of the Constitution he was the most formidable to Henry. His perfect acquaintance with all the local and domestic topics of State policy, and especially of the whole system of legislation, in which he was a prominent actor since the dawn of the Commonwealth; his connections by descent and affinity with the old aristocratic families ; his physical qualities, which made him equally fearless in the House and out of the House, were evinced by his civil and military career since manhood ; his great powers of minute and sustained argumentation, so minute and so sustained that posterity in perusing the debates of the Convention will hesitate in awarding the palm of superiority to Madison; his expositions of the Constitution more elaborate in their details than those of Madison, added to his character of a thorough and unflinching representative of the patrimonial feuds and preju- dices with which from his early life Henry had been continually battling, made his opposition not only unwelcome but galling to the opponents of the new system. It was alike difficult to evade and repel his attacks. Henry would neutralize the speeches of Madison by the thunders of his oratory, and he could throw Randolph from his balance by a covert sarcasm discernible only by the person who felt its sting ; but neither oratory nor sarcasm availed in a contest with Nicholas, who was as potent in the war of wit as he was irresistible by the force of his logic. Not that Nicholas possessed or coveted wit in its higher manifestations ; but his knowledge of his opponents had supplied him with such an array of facts bearing on their past history, that, by a mar-
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