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 29
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was one cause of the complaints against British tyranny that this trade was permitted. His earnest desire was that it should be handed down to posterity that he had opposed this wicked clause. He also contended that as, according to the admission of Madison, Congress would have had power to abolish the traffic but for the restriction, and as no express power so to do was contained in the Constitution, then it followed that the dis- cretion of Congress was its rule of authority, and that the neces- sity of a bill of rights was indispensable. Madison rejoined, and was followed by Henry, who enforced at length the argument advanced by Tyler, and urged in eloquent terms the absolute necessity of a bill of rights. He denied that Madison had shown the security of our slave property. The argument of Madison, he said, was no more than this-that a runaway negro could be taken up in Maryland or in New York. This could not prevent Congress from interfering with that kind of property by laying a grievous and enormous tax upon it, so as to compel owners to emancipate their slaves rather than pay the tax. He feared that this property would be lost to this country. Nicholas replied to Henry with peculiar tact, showing the inconsistency of those who with one and the same breath blamed the Constitution for allowing the introduction of slaves for a limited period, and for not protecting the very interest which it allowed to increase for twenty years. He urged that it was better to have this clause and union, than disunion without it. He also contended that the ratio of taxation was fixed by the Constitution; and that as the people were now reduced to beggary by the taxes on negroes, so by the adoption of the Constitution which exempts two-fifths, the taxes would rather be lightened than rendered more oppressive. He intimated an inconsistency in the arguments urged by gentlemen here and those offered in the House of Delegates at a previous period.
The second, third, and fourth clauses of the ninth section were now read. 215 Mason said that the restriction in the fourth clause of the capitation tax was nominal and deceptive. It only meant that the quantum to be raised of each State should be in pro- portion to their numbers in the manner directed in the Consti-
215 Concerning the writ of habeas corpus, bills of attainder, and exx post facto laws, and the capitation and direct tax.
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tution. But the general government was not precluded from laying the proportion of any particular State on any one species of property. They might lay the whole tax on slaves, and anni- hilate that species of property. The security was extended only to runaway slaves. Madison replied that the Southern States in the Convention were satisfied with the protection accorded by the Constitution; that every member of that body desired an equality of taxation, which uniformity could not secure; that some confidence must be placed in human discretion, or civil society could not exist; and that five States were permanently interested in the security of slave property, and other States in a greater or less degree.
The fifth and sixth clauses of the ninth section were read.216 Mason thought the expression "from time to time" was loose. It might refer to triennial or septennial periods. Lee objected to such remarks as trivial. He wished gentlemen would confine themselves to an investigation of the principal parts of the Con- stitution, as the Assembly was about to meet the coming week. Mason begged to be allowed to use the mode of arguing to which he had been accustomed. However desirous he was of pleasing that worthy gentleman, his duty would give way to that pleasure. Nicholas, Corbin, and Madison replied to Mason, who still insisted on the vagueness of the words "from time to time," and said that in the Articles of Confederation a monthly publi- cation was required.
The seventh clause of the ninth section, which prohibits titles of nobility from being granted by the United States, or the public officers accepting presents from foreign powers without the con- sent of Congress, was now read. Henry said he considered himself at liberty to review all the clauses of the ninth section of the first article. He said that this seventh section was a sort of bill of rights to the Constitution, and, by comparing it in detail with the Virginia Bill of Rights, argued that it was wholly inefficient. He concluded by saying that if gentlemen thought that this section would secure their liberties, then he and his friend (Mason) had spoken in vain. Randolph followed in an
216 No tax or duty to be laid on articles exported from any State, or preference shown by any regulation ; no moneys to be drawn from the treasury but by appropriations, and a regular statement published from time to time, &c.
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elaborate review of the ninth section, and in reply to Henry. On the sweeping clause he thus spoke: "The rhetoric of the gentleman has highly colored the dangers of giving the gen- eral government an indefinite power of providing for the gen- eral welfare. I contend that no such power is given. They have power 'to lay and collect taxes, duties, imposts, and ex- cises, to pay the debts and provide for the common defence and general welfare of the United States.' Is this an independent, separate, substantial power to provide for the general welfare ? No, sir. They can lay and collect taxes-for what ? To pay the debts and provide for the general welfare. ' Were not this the case, the following part of the clause would be absurd. It would have been treason against common language. Take it altogether, and let me ask if the plain interpretation be not this : a power to lay and collect taxes, etc., in order to provide for the general welfare and pay debts."
In his remarks upon the clause which forbids public officers from receiving presents from foreign powers, he observed that " an accident which actually happened operated in producing that restriction. A box was presented to our ambassador by the king of our allies. It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign States. I believe that if at that moment, when we were in harmony with the king of France, we had supposed that he was corrupting our ambassador, it might have disturbed that confidence and dimin- ished that mutual friendship which contributed to carry us through the war."217
In reply to an objection of Henry that the trial by jury was unsafe, he showed that it was secured in criminal cases, and that in civil cases, as there was then great contrariety in the practices of the different States on this subject, the matter was wisely
217 Dr. Franklin is the person alluded to by Randolph. In the winter of 1856, in Philadelphia; under the roof of a venerable granddaughter of Dr. Franklin, I saw the beautiful portrait of Louis XVI, snuff-box size, presented by that king to the doctor. As the portrait is exactly such as is contained in the snuff-boxes presented by crowned heads, one of which I have seen, it is probable this portrait of Louis was ori- ginally attached to the box in question, which has in the lapse of years been lost or given away by Franklin.
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referred to legislation ; and in reply to another objection of that gentleman, that the common law was not established by the Constitution, he argued that "the wisdom of the Convention was displayed by its omission, because the common law ought not to be immutably fixed. It is established, not in our own Bill of Rights or in our State Constitution, but by the Legislature, and can therefore be changed as circumstances require. If it had been established by the new Constitution, it would be in many respects destructive to republican principles. It would have revived the writ for burning heretics, and involved other absurdities equally enormous. But it is not excluded. It may be established by the Legislature with such modifications as the public convenience and interests may hereafter prescribe."
Henry lamented that he could not see with that perspicuity which other gentlemen were blessed with.
The first clause of the tenth section, which prevents a State from entering into any treaty or alliance with a foreign power, or granting letters of marque or reprisal, or coining money, or making anything but gold and silver a tender in payment of debts, or passing any bill of attainder, ex post facto law, or any law im- pairing the obligation of contracts, or of laying, without the consent of Congress, any imposts or duties on imports or ex- ports, except what might be absolutely necessary for executing its inspection laws, etc., etc., was read. Henry regarded with concern these restrictions on the States. They may be good in themselves ; but he feared the States would be compelled by them to pay their share of the Continental money shilling for shil- ling. There had been great speculations in Continental money. He had been informed that some States had collected vast quan- tities of that money, which they should be able to recover in its nominal value of the other States. Madison admitted that there might be some speculation on the subject, and believed that the old Continental money had been settled in a very disproportion- ate manner. But the first clause of the sixth article settled this matter. That clause provided that all debts and engagements entered into before the adoption of the Constitution shall be as valid as under the Confederation. He affirmed that it was meant there should be no change with respect to claims by this political alteration. The validity of claims ought not to dimin- ish by the adoption of the Constitution. It could not increase
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the demands on the public. Mason said that there had been enormous speculations in Continental money, in the hope of re- covering shilling for shilling. The clause was well enough as far as it went. The money had depreciated a thousand for one. The old Congress could settle this matter. The hands of Con- gress were now tied. Under the new scheme we must pay it shilling for shilling, or at least one for forty. Madison made an- swer that the question as to who were the holders of the money was immaterial; it could not be affected by the Constitution, which made all claims as valid as they were before, and not more so. Henry replied that he saw clearly that we would be com- pelled to pay shilling for shilling. No ex post facto law could be passed by Congress or by the States, and there could be no re- lief. He instanced the case of relief by the Assembly from the payment of British debts. The State could be sued in the Fed- eral court. Barrels of paper money had been hoarded at the North. There could be no relief. Judgment will be given against you, and the people will be ruined. Nicholas said that Virginia could make no law affecting the value of Continental money. So the case will stand hereafter as it does now. He denied that Congress could be sued by speculators. Congress may be plaintiff, but not defendant in her own courts. Randolph urged the restriction concerning ex post facto laws had no rela- tion to the case at all; that the term was technical, and applied only to criminal cases. He said that the British debts, which were held contrary to treaty, ought to be paid. The payment might press the country, but we should retrench our extravagance and folly. He denied that private benefit affected his views, as, unless reduced very low indeed, he should never feel the benefit of the payment. Madison rose to quiet the fears which had been raised by Henry. Strike out the clause altogether, he said, and the case would stand just as it does now. As for the ruin threatened by the payment of debts, the original amount was only one hundred millions, of which some had been destroyed. But before it was destroyed, the share of Virginia was only twenty-six millions, which, at forty for one, amounted to five hundred thousand dollars only. Mason was still of his former opinion. Had three words been added after the words ex post .facto, confining those words to crimes, then the position of those debts would be the same hereafter as now. Randolph replied
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that ex post facto laws applied exclusively to criminal cases ; that such was the meaning of the words in interpreting treaties, and it was so understood by all civilians.
The next clause of the section concerning the inspection laws was read, and was discussed by Mason, Nicholas, and Madison.
The first clause of the first section of the second article, which provides that the executive power shall be vested in a President of the United States of Atnerica, who shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected as follows, was then read. Mason said that there was not a more important article in the Constitution than this. The great fundamental principle of republicanism is here sapped. The President is elected without rotation. It is said that you may remove him by a new election, but is there a single instance of a great man not being re-elected ? Our governor is obliged to return after a given period to a pri- vate station. Your President is in office for life. The great powers of Europe will not allow you to change him. The peo- ple of Poland have a right to displace their king; but will Rus- sia and Prussia allow them? He may receive a pension from European powers. One of those powers, since the Revolution, offered emoluments to persons holding offices under our govern- ment. I should be contented that he might be elected for eight years. As it now stands, he may be elected for life. Your government will be an elective monarchy. The gentleman (Ran- dolph), my colleague in the late Convention, says not a word about those parts of the Constitution which he denounced. He will excuse me for repeating his own arguments against this dan- gerous clause." Randolph thought that he had mentioned his objections with freedom and candour ; but he believed that the Constitution, in the present state of affairs, ought to be adopted as it stands. He had changed his opinion on this clause, be- lieving that the hope of a re-election would stimulate the incum- bent to direct his attention to his country instead of his own private gains. The President was excluded from receiving emoluments from foreign powers. It was impossible to guard better against corruption.
Mason said that the Vice-President was not only an unneces- sary but a dangerous officer; that the State from which he comes may have two votes when the others have but one; that he
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blended in his person executive and legislative functions ; that though he could not foresee in the distance of time the conse- quences of such an appointment, he feared he would become a tool in overturning the liberties of his country. He objected that as the Vice-President was to succeed the President in certain contingencies, and as there was no provision for a fresh election of a President, it would be the interest of the Vice President to postpone or prevent an election. Perhaps, he said, he might be mistaken. Madison replied that there were some peculiar advan - tages incident to this office, that he would probably come from one of the larger States, and his vote so far would be favorable ; that he approved the fact that he would be the choice of the peo- ple at large, as it was better to confer this power on a person so elected than on a senator elected by a single State ; that he also approved of the power which authorized Congress to provide against the death of the President and the Vice-President, and he saw that such an event would rarely occur, and that this power, which was well-guarded, kept the government in motion. The House then adjourned.
On Wednesday, the eighteenth of June, the House went into committee, Wythe in the chair, the first section of the second article still under consideration. Monroe addressed the com- mittee at some length, contending that our circumspection in politics should be commensurate with the extent of the powers granted ; that the President ought to act under the strongest impulses of rewards and punishments, the strongest incentives to human actions; that there were two ways of securing this point-dependence on the people for his appointment and con- tinuation in office, and responsibility in an equal degree to all the States, and trial by dispassionate judges. He proceeded to show in detail that these objects were not secured by the section under discussion, and declared that the person first elected might continue in office for life. He argued that the United States might become the arbiter between foreign powers; that vast territories belonging to foreign powers adjoined our own, and that the continuance of an individual in office might be important to their purposes, and that corruption would ensue. He opposed the office of Vice-President as unnecessary, and as justly amen- able to the objections urged by Mason. Grayson followed, and in an argument of uncommon ingenuity opposed the clause. He
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said that if we adverted to the democratic, aristocratical, or ex- ecutive branch of this new government, we would find their powers perpetually varying and fluctuating throughout the whole; that the democratic branch could be well constructed but for this defect ; that the executive branch was still worse in this respect than the democratic ; that the President was to be elected by a majority of electors, but that the principle was changed in the absence of that majority, when the election was to be decided by States. He pointed out the probability of the interference of foreign powers, and instanced in detail the case of Sweden ; and adverted to the motives which might govern France and England in seeking to influence the election of President. He sought to demonstrate the want of responsibility in the Presi- dent; and showed by an elaborate calculation that he might be elected by seventeen votes out of the whole number of one hun- dred and thirty-nine. Mason followed in corroboration of the views of Grayson. He said that it had been wittily remarked that the Constitution married the President and the Senate ; and he believed that the usual results of marriage would follow- they would be always helping one another. There could be no true responsibility in such a case. He referred to the trial of Milo at Rome, when the court was bristling with the myrmidons of the executive. Your President, he said, might surround the Senate with thirty thousand armed men.
Madison rose and encountered the opposition with more than his usual tact. He did not object to some of the opinions which had been advanced in detail ; that the mode of electing the Pres- ident created much difficulty in the general Convention ; that gentlemen who opposed the mode prescribed by the Constitu- tion had suggested no mode of their own; that it was the result of a compromise between the large and the small States, the large States having the opportunity of deciding the election in the first instance, and the small States in the last ; that the gen- tleman last up erred in saying that there must be a majority of the whole number of electors appointed; and that a majority of votes, equal to a majority of the electors appointed, will be suf- ficient. Mason replied and Madison rejoined.
The first clause of the second section of the second article, which provides " that the President shall be commander-in-chief of the army and navy of the United States, and of the militia of
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the several States, when called into the actual service of the United States," &c., was read. Mason did not object to the President's being the official head of the army and navy, but thought that he ought to be prohibited from commanding in person without the consent of Congress. He reminded the com- mittee of what Washington could have done, if to his great abil- ities and popularity he had added the ambition of the mere soldier. He did not disapprove of the President's consulting the executive officers, but he denounced the absence of a regular and responsible council. He thought the President ought not to have an unrestricted liberty of pardoning, as he might pardon crimes perpetrated by his own advisement ; and he should be expressly debarred from granting pardons before conviction. " It may happen," he said, " at some future day, he may destroy the republic and establish a monarchy." Lee observed that it did not follow that the President would command in person. He thought the pardoning power wisely lodged in the President. The experience of New York was in favor of the plan. Mason observed that he did not mean that the President was of necessity to command in person, but that he might do so when he pleased, and that if he were an ambitious man, he might make a dan- gerous use of his position. Nicholas reminded the committee that the army and navy were to be raised, not by the President, but by Congress. The arrangement was the same in our State government, where the governor commanded in chief. As to possible danger, any commander might pervert what was intended for the public safety. The President went out every four years. Any other commander might have a longer term of office. Mason denied that there was a resemblance between the Presi- dent and the governor. The latter had very few powers, went out every year, and had no command over the navy. He was comparatively harmless. The danger of the President consisted in the union of vast civil, military, and naval powers in a single person, without proper responsibility and control. The public liberty had been destroyed by military commanders only. Mad- ison, adverting to Mason's objections to the pardoning power being given to the President, said it would be extremely improper to vest that power in the House of Representatives. Such was the fact in Massachusetts, and it was found in the case of the late insurgents that the House at one session was for universal ven-
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geance, and at another for general mercy. He said one great security from the malfeasance of the President consisted in the power of impeaching and of suspending him when suspected. Mason replied that the seeming inconsistency of the Massachusetts House of Representatives was sound policy. It was wise to punish pending the rebellion, and to pardon when it was past. Madison rejoined that it so happened that both sessions of that House had been held after the rebellion was over.
- The second clause of the second section of the second article, which empowers the President by and with the advice and con- sent of the Senate to make treaties, provided two-thirds of the Senators present concur, to nominate and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, with certain restrictions, was read. Mason thought this a most dangerous clause. Five States could make a treaty. Now nine States were necessary. His principal fear, however, was not that five, but that seven States, a bare majority, would make treaties to bind the Union. Nicholas answered that we were on a more safe footing in this Constitution than under the Confederation. The possibility of five States forming a treaty was founded on the absence of the Senators from the other States. The absence would be reciprocal. It may be safely presumed that in important cases there would be a full attendance, and then nine States would be necessary. He thought the approbation of the President, who was elected by all the States, was an additional security. Mason differed widely from the gentleman. He conceived that the contiguity of some States and the remoteness of others would present that reciprocity to which Nicholas alluded. Some States were near; others were nine hundred miles off. Suppose a partial treaty made by the President. He has a right to convene the Senate. Is it pre- sumable that he would call or wait for distant States whose inte- rests were to be affected by the treaty ? Nicholas asked if it was probable that the President, who was elected by the people of all the States, would sacrifice the interest of the eight larger States to accommodate the five smallest? Lee compared the non- attendance of the Senators to that in our own Legislature, which consisted of one hundred and seventy members, of whom eighty- six were a majority sufficient to form a House; and of that House
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