letter to congress
" We have now the honor to submit to the consideration of the United States, in Congress assembled, that Constitution which has appeared to us the most advisable.
" The friends of our country have long seen and desired, that the power of making war, peace, and treaties; that of levying money, and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the general government of the Union. But the impropriety of delegating such extensive trust to one body of men is evident. Thence results the necessity of a different organization. It is obviously impracticable, in the federal government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty, to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved. And on the present occasion this difficulty was increased by a difference among the several States, as to their situation, extent, habits, and particular interests.
" In all our deliberations on this subject we kept stead fly in our new that which appeared to us tile greatest interest of every true American, the consolidation of our union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid in points of inferior magnitudts, than might have been otherwise expected. And thus the Constitution which we now present is the result pf a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.
"That it will meet the fall and entire approbition of every State is not, perhaps, to be expected. But each will doubtless consider, that had her interest alone been consulted, the consequences might have been particularly disagreeable and injurious to others. That it is liable to asfew exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all; and secure her freedom and happiness, is our most ardent wish."
Mr. WILLIAMSON moved to reconsider the clause requiring three-fourths of each house to overrule the negative of the President, in order to strike out three-fourths and insert two-thirds. He had, he remarked, himself proposed threefourths instead of two-thirds; but he had since been convinced that the latter proportion was the best. The former puts too much in the power of the President.
Mr. SHERMAN was of the same opinion; adding that the States would not like to see so small a minority, and the President, prevailing over the general voice. In making laws, regard should be had to the sense of the people, who are to be bound by them; and it was more probable that a single man should mistake or betray this sense, than the Legislature.
Mr. GOUVERNEUR MORRIS. Considering the difference between the two proportions numerically, it amounts. in one House, to two members only; and in the other, to net more than five; according to the numbers of which tho Legislature is at first to be composed. It is the intereet, moreover, of the distant States, to prefer three-fourths, as they will be oftenest absent, and need the interposing cheek of the President. The excess, rather than the deficiency, of laws was to be dreaded. The example of New York shows that two-thirds is not sufficient to answer the purpose. Mr. HAMILTON added his testimony to the fact, that two-thirds in New York had been ineffectual, either where a popular object, or a legislative faction, operated; of which he mentioned some instances.
Mr. GERRY. It is necessary to consider the danger on the other side also. Two-thirds will be a considerable, perhaps, a proper, security. Three-fourths puts too much in the power of a few men. The primary object of the revisionary check of the President is, not to protect the general interest, but to defend his own department. If threefourths be required a few Senators, having hopes from the nomination of the President to offices, will combine with him and impede proper laws. Making the Vice President Speaker increases the danger.
Mr. WILLIAMSON was less afraid of too few then of too many laws. He was, most of all, afraid that the repeal of bad laws might be rendered too difficult by requiring three fourths to overcome the dissent of the President.
Colonel MASON had always considered this as one of the most exceptionable parts of the system. As to the numerical argument of Mr. GOUVERNEUR MORRIS, little arithmetic was necessary to understand that three-fourths was more than two-thirds, whatever the numbers of the Legislature might be. The example of New York depended on the real merits of the laws. The gentlemen citing it had no doubt given their own opinions. But perhaps there were others of opposite opinions, who could equally paint the abuses on the other side. His leading view was, to guard against too great an impediment to the repeal of laws.
Mr. GOUVERNEUR MORRIS dwelt on the danger to the public interest from the instability of laws, as the most to be guarded against. On the other side, there could be little danger. If one man in office will not consent whore he ought, every fourth year another can be substituted. This term was not too long for fair experiments. Many good laws are not tried long enough to prove their merit. This is often the case with new laws opposed to old habits. The inspection laws of Virginia and Maryland, to which all are now so much attached, were unpopular at first.
Mr. PINCZKNEY was warmly in opposition to three-fourths, as putting a dangerous power in the hands of a few Senators headed by the President.
Mr. MADISON. When three-fourths was agreed to, the President was to be elected by the Legislature, and for seven years. He is now to be elected by the people, and for four years. The object of the revisionary power is twofold, —first, to defend the Executive rights; secondly, to prevent popular or factious injustice. It was an important principle in this and in the State Constitutions, to check legislative injustice and encroachments. The experience of the States had demonstrated that their checks are insufficient. We must compare the danger from the weakness of two-thirds, with the danger from the strength of threefourths. He thought on the whole, the former was the greater. As to the difficulty of repeals, it was probable that in doubtful cases, the policy would soon take place, of limiting the duration of laws, so as to require renewal instead of repeal.
The reconsideration being agreed to, —
On the question to insert two-thirds ih place of three
Connecticut, New Jersey, Maryland, (Mr. McHENRY, no,) North Carolina, South Carolina, Georgia, aye—6; Massachusetts, Pennsylvania, Delaware, Virginia, (General WASHINGTON, Mr. BLAIR, Mr. MADISON, no; Colonel MASON, Mr. RANDOLPH, aye,) no—4; New Hampshire, divided.
Mr. WILLIAMSON observed to the House, that no provision was yet made for juries in civil cases, and suggested the necessity of it.
Mr. GORHAM. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.
Mr. GERRY urged the necessity of juries to guard against corrupt judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by juries.
Colonel MASON perceived the difficulty mentioned by Mr. GORHAM. The jury cases cannot be specified. A general principle laid down, on this and some other points, would be sufficient. He wished the plan had been prefaced with a Bill of Rights, and would second a motion if made for the purpose. It would give great quiet to the people; and with the aid of the State Declarations, a bill might be prepared in a few hours.
Mr. GERRY concurred in the idea, and moved for a Committee to prepare a Bill of Rights.
Colonel MASON seconded the motion.
Mr. SHERMAN was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient. There are many cases where juries are proper, which cannot be discriminated. The Legislature may be safely trusted.
Colonel MASON. The laws of the United States are to be paramount to State Bills of Rights.
On the question for a Committee to prepare a Bill of Rights, —
New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, aye—6; Maryland, Virginia, North Carolina, South Carolina, Georgia, no—6; Massachusetts, absent.
The clause relating to exports being reconsidered, at the instance of Colonel MASON, —who urged that the restrictions on the States would prevent the incidental duties necessary for the inspection and safe keeping of their produce, and be ruinous to the staple States, as he called the five Southern States, —he moved as follows: " provided, nothing herein contained shall be construed to restrain any State from laying duties upon exports for the sole purpose of defraying the charges of inspecting, packing, storing and indemnifying the losses in keeping the commodities in the care of public officers, before exportation." In answer to a remark which he anticipated, to wit, that the States could provide for these expenses, by a tax in some other way, he stated the inconvenience of requiring the planters to pay a tax before the actual delivery for exportation.
Mr. MADISON seconded the motion. It would at least be harmless; and might have the good effect of restraining the States to bona fide duties for the purpose, as well as of authorizing explicitly such duties; though perhaps the best guard against an abuse of the power of the States on this subject was the right in the General Government to regulate trade between State and State.
Mr. GOUVERNEUR MORRIS saw
Mr. DAYTON was afraid the proviso would enable Pennsylvania to tax New Jersey under the idea of inspection duties of which Pennsylvania would judge.
Mr. GORHAM and Mr. LANGDON thought there would be no security, if the proviso should be agreed to, for the States exporting through other States, against these oppressions of the latter. How was redress to be obtained, in case duties should be laid beyond the purpose expressed?
Mr. MADISON. There will be the same security as in other cases. The jurisdiction of the Supreme Court must be the source of redress. So far only had provision been made by the plan against injurious acts of the States. His own opinion was, that this was insufficient. A negative on the State laws alone could meet all the shapes which these could assume. But this had been overruled.
Mr. FITZSIMONS. Incidental duties on tobacco and dour never have been, and never can be, considered as duties on exports.
Mr. DICKINSON. Nothing will save the States in the situation of New Hampshire, New Jersey, Delaware, &c., from being oppressed by their neighbours, but requiring the assent of Congress to inspection duties. He moved that this assert should accordingly be required.
Mr. BUTLER seconded the motion.