Mr. Jay, General Knox, Mr. Madison
May , 1787
Does not think the giving any further powers to Congress will answer our purposes,
Because some of the members will have partial and personal purposes in view, which, and ignorance, prejudice, and interested views of others, will always embarrass those who are well disposed.
Because secrecy and dispatch will be too uncommon, and foreign as well as local interests will frequently oppose, and sometimes frustrate, the wisest measures.
Because large assemblies often misunderstand, or neglect the obligations of character, honor, and dignity, and will collectively do, or omit, things which an individual gentleman in his private capacity would not approve.
The executive business of sovereignty, depending on so many wills, and those wills moved by such a variety of contradictory motives and inducements, will, in general, be but feebly done; and
Such a sovereign, however theoretically responsible, cannot be effectually so in its department and officers, without adequate judicatories. He, therefore,
Does not promise himself anything very desirable from any change, which does not divide the sovereignty into its proper departments. Let Congress legislate; let others execute; let others judge. Proposes
A Governor General, limited in his prerogatives and duration; that Congress should be divided into an upper and lower house, the former appointed for life, the latter annually; that the Governor General (to preserve the balance) with the advice of a council, formed, for that only purpose, of the great judicial officers, have a negative on their acts.
What powers should be granted to the government so constituted, is a question which deserves much thought; the more [powers], however, he thinks, the better; the states retaining only so much as may be necessary for domestic purposes, and all their principal officers, civil and military, being commissioned and removed by the national government.
Questions the policy of the Convention, because it ought to have originated with, and the proceedings be confirmed by, the people, the only source of just authority.
It is out of all question, that the foundation of the government must be of republican principles, but so modified and wrought together, that whatever shall be erected thereon should be durable and efficient. He speaks entirely of the Federal Government, or, what would be better, one government, instead of an association of governments.
Were it possible to effect a government of this kind, it might be constituted of an assembly, or lower house, chosen for one, two, or three years; a Senate chosen for five, six, or seven years; and the executive under the title of Governor General chosen by the Assembly and Senate for the term of seven years, but liable to an impeachment of the lower house, and triable by the Senate.
A judiciary to be appointed by the Governor General during good behavior, but impeachable by the lower house and triable by the Senate.
The laws passed by the General Government, to be obeyed by the local governments, and if necessary, to be enforced by a body of armed men.
All national objects to be designed and executed by the General Government, without any reference to the local governments.
This is considered as a government of the least possible powers, to preserve the confederated government. To attempt to establish less, will be to hazard the existence of republicanism, and to subject us either to a division of the European powers, or to a despotism arising from high handed commotions.
Thinks an individual independence of the states utterly irreconcilable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic, would be as inexpedient as it is unattainable. He, therefore, proposes a middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities whenever they can be subordinately useful. As the ground work, he proposes that a change be made in the principle of representation, and thinks there would be no great difficulty in effecting it.
Next, that in addition to the present federal powers, the national government should be armed with positive and complete authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, &c.
Next, that in addition to the present federal powers, a negative in all cases whatever on the legislative acts of the states, as heretofore exercised by the kingly prerogative, appears to him absolutely necessary, and to be the least possible encroachment on the state jurisdictions. Without this defensive power he conceives that every positive [law?], which can be given on paper, will be evaded.
This control over the laws would prevent the internal vicissitudes of state policy, and the aggressions of interested majorities.
The national supremacy ought also to be extended, he thinks, to the judiciary departments; the oaths of the judges should at least include a fidelity to the general as well as the local constitution; and that an appeal should be to some national tribunals in all cases, to which foreigners or inhabitants of other states may be parties. The admiralty jurisdictions to fall entirely within the purview of the national government.
The national supremacy in the executive departments is liable to some difficulty, unless the officers administering them could be made appointable by the supreme government. The militia ought entirely to be placed in some form or other under the authority, which is interested with the general protection and defense.
A government composed of such extensive powers should be well organized and balanced.
The legislative department might be divided into two branches, one of them chosen every _____ years by the people at large, or by the legislatures: the other to consist of fewer members, to hold their places for a longer term, and to go out in such a rotation as always to leave in office a large majority of old members.
Perhaps the negative on the laws might be most conveniently exercised by this branch.
As a further check, a council of revision, including the great ministerial officers, might be superadded.
A national executive must also be provided. He has scarcely ventured as yet to form his own opinion, either of the manner in which it ought to be constituted, or of the authorities with which it ought to be clothed.
An article should be inserted expressly guarantying the tranquility of the states against internal, as well as external dangers.
In like manner, the right of coercion should be expressly declared. With the resources of commerce in hand, the national administration might always find means of exerting it either by sea or land; but the difficulty and awkwardness of operating by force on the collective will of a state, render it particularly desirable that the necessity of it might be precluded. Perhaps the negative on the laws might create such a mutual dependence between the general and particular authorities as to answer; or perhaps some defined objects of taxation might be submitted along with commerce to the general authority.
To give a new system its proper validity and energy, a ratification must be obtained from the people, and not merely from the ordinary authority of the legislatures. This will be the more essential, as inroads on the existing constitutions of the states will be unavoidable.