Elliot’s Debates: Volume 4
Convention of North Carolina
Monday, July 28, 1788.
The 2d section of the 2d article read.
Mr. IREDELL. Mr. Chairman, this part of the Constitution has been much objected to. The office of superintending the execution of the laws of the Union is an office of the utmost importance. It is of the greatest consequence to the happiness of the people of America, that the person to whom this great trust is delegated should be worthy of it. It would require a man of abilities and experience; it would also require a man who possessed, in a high degree, the confidence of his country. This being the case, it would be a great defect, in forming a constitution for the United States, if it Was so constructed that, by any accident, an improper person could have a chance to obtain that office. The committee will recollect that the President is to be elected by electors appointed by each state, according to the number of senators and representatives to which the state may be entitled in the Congress; that they are to meet on the same day throughout the states, and vote by ballot for two persons, one of whom shall not be an inhabitant of the same state with themselves. These votes are afterwards to be transmitted, under seal, to the seat of the general government. The person who has the greatest number of votes, if it be a majority of the whole, will be the President. If more than one have a majority, and equal votes, the House of Representatives are to choose one of them. If none have a majority of votes, then the House of Representatives are to choose which of the persons they think proper, out of the five highest on the list. The person having the next greatest number of votes is to be the Vice-President, unless two or more should have equal votes, in which case the Senate is to choose one of them for Vice-President. If I recollect right, these are the principal characteristics. Thus, sir, two men will be in office at the same time; the President, who possesses, in the highest degree, the confidence of his country, and the Vice-President, who is thought to be the next person in the Union most fit to perform this trust. Here, sir, every contingency is provided for. No faction or combination can bring about the election. It is probable that the choice will always fall upon a man of experienced abilities and fidelity. In all human probability, no better mode of election could have been devised.
The rest of the 1st section read without any observations.
2d section read.
Mr. IREDELL. Mr. Chairman, I was in hopes that some other gentleman would have spoken to this clause. It conveys very important powers, and ought not to be passed by. I beg leave, in as few words as possible, to speak my sentiments upon it. I believe most of the governors of the different states have powers similar to those of the President. In almost every country, the executive has the command of the military forces. From the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, despatch, and decision, which are necessary in military operations, can only be expected from one person. The President, therefore, is to command the military forces of the United States, and this power I think a proper one; at the same time it will be found to be sufficiently guarded. A very material difference may be observed between this power, and the authority of the king of Great Britain under similar circumstances. The king of Great Britain is not only the commander-in-chief of the land and naval forces, but has power, in time of war, to raise fleets and armies. He has also authority to declare war. The President has not the power of declaring war by his own authority, nor that of raising fleets and armies. These powers are vested in other hands. The power of declaring war is expressly given to Congress, that is, to the two branches of the legislaturethe Senate, composed of representatives of the state legislatures, the House of Representatives, deputed by the people at large. They have also expressly delegated to them the powers of raising and supporting armies, and of providing and maintaining a navy.
With regard to the militia, it must be observed, that though he has the command of them when called into the actual service of the United States, yet he has not the power of calling them out. The power of calling them out is vested in Congress, for the purpose of executing the laws of the Union. When the militia are called out for any purpose, some person must command them; and who so proper as that person who has the best evidence of his possessing the general confidence of the people? I trust, therefore, that the power of commanding the militia, when called forth into the actual service of the United States, will not be objected to.
The next part, which says “that he may require the opinion in writing of the principal officers,” is, in some degree, substituted for a council. He is only to consult them if he thinks proper. Their opinion is to be given him in writing. By this means he will be aided by their intelligence; and the necessity of their opinions being in writing, will render them more cautious in giving them, and make them responsible should they give advice manifestly improper. This does not diminish the responsibility of the President himself.
They might otherwise have colluded, and opinions have been given too much under his influence.
It has been the opinion of many gentlemen, that the President should have a council. This opinion, probably, has been derived from the example in England. It would be very proper for every gentleman to consider attentively whether that example ought to be imitated by us. Although it be a respectable example, yet, in my opinion, very satisfactory reasons can be assigned for a departure from it in this Constitution.
It was very difficult, immediately on our separation from Great Britain, to disengage ourselves entirely from ideas of government we had been used to. We had been accustomed to a council under the old government, and took it for granted we ought to have one under the new. But examples ought not to be implicitly followed; and the reasons which prevail in Great Britain for a council do not apply equally to us. In that country, the executive authority is vested in a magistrate who holds it by birthright. He has great powers and prerogatives, and it is a constitutional maxim, that he can do no wrong. We have experienced that he can do wrong, yet no man can say so in his own country. There are no courts to try him for any high crimes; nor is there any constitutional method of depriving him of his throne. If he loses it, it must be by a general resistance of his people, contrary to forms of law, as at the revolution which took place about a hundred years ago. It is, therefore, of the utmost moment in that country, that whoever is the instrument of any act of government should be personally responsible for it, since the king is not; and, for the same reason, that no act of government should be exercised but by the instrumentality of some person who can be accountable for it. Every thing, therefore, that the king does, must be by some advice, and the adviser of course answerable. Under our Constitution we are much happier.
No man has an authority to injure another with impunity. No man is better than his fellow-citizens, nor can pretend to any superiority over the meanest man in the country. If the President does a single act by which the people are prejudiced, he is punishable himself, and no other man merely to screen him. If he commits any misdemeanor in office, he is impeachable, removable from office, and incapacitated to hold any office of honor, trust, or profit. If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life. This being the case, there is not the same reason here for having a council which exists in England. It is, however, much to be desired, that a man who has such extensive and important business to perform should have the means of some assistance to enable him to discharge his arduous employment. The advice of the principal executive officers, which he can at all times command, will, in my opinion, answer this valuable purpose. He can at no time want advice, if he desires it. as the principal officers will always be on the spot. Those officers, from their abilities and experience, will probably be able to give as good, if not better, advice than any counsellors would do; and the solemnity of the advice in writing, which must be preserved, would be a great check upon them.
Besides these considerations, it was difficult for the Convention to prepare a council that would be unexceptionable. That jealousy which naturally exists between the different states enhanced this difficulty. If a few counsellors were to be chosen from the Northern, Southern, or Middle States, or from a few states only, undue preference might be given to those particular states from which they should come. If, to avoid this difficulty, one counsellor should be sent from each state, this would require great expense, which is a consideration, at this time, of much moment, especially as it is probable that, by the method proposed, the President may be equally well advised without any expense at all.
We ought also to consider that, had he a council by whose advice he was bound to act, his responsibility, in all such cases, must be destroyed. You surely would not oblige him to follow their advice, and punish him for obeying it. If called upon on any occasion of dislike, it would be natural for him to say, “You know my council are men of integrity and ability: I could not act against their opinions, though I confess my own was contrary to theirs.” This, sir, would be pernicious. In such a situation, he might easily combine with his council, and it might be impossible to fix a fact upon him. It would be difficult often to know whether the President or counsellors were most to blame. A thousand plausible excuses might be made, which would escape detection. But the method proposed in the Constitution creates no such embarrassment. It is plain and open. And the President will personally have the credit of good, or the censure of bad measures; since, though he may ask advice, he is to use his own judgment in following or rejecting it. For all these reasons, I am clearly of opinion that the clause is better as it stands than if the President were to have a council. I think every good that can be derived from the institution of a council may be expected from the advice of these officers, without its being liable to the disadvantages to which, it appears to me, the institution of a council would be.
Another power that he has is to grant pardons, except in cases of impeachment. I believe it is the sense of a great part of America, that this power should be exercised by their governors. It is in several states on the same footing that it is here. It is the genius of a republican government that the laws should be rigidly executed, without the influence of favor or ill-willthat, when a man commits a crime, however powerful he or his friends may be, yet he should be punished for it; and, on the other hand, though he should be universally hated by his country, his real guilt alone, as to the particular charge, is to operate against him. This strict and scrupulous observance of justice is proper in all governments; but it is particularly indispensable in a republican one, because, in such a government, the law is superior to every man, and no man is superior to another. But, though this general principle he unquestionable, surely there is no gentleman in the committee who is not aware that there ought to be exceptions to it; because there may be many instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy. It is impossible for any general law to foresee and provide for all possible cases that may arise; and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice. For this reason, such a power ought to exist somewhere; and where could it be more properly vested, than in a man who had received such strong proofs of his possessing the highest confidence of the people? This power, however, only refers to offences against the United States, and not against particular states. Another reason for the President possessing this authority, is this: it is often necessary to convict a man by means of his accomplices. We have sufficient experience of that in this country. A criminal would often go unpunished, were not this method to be pursued against him. In my opinion, till an accomplice’s own danger is removed, his evidence ought to be regarded with great diffidence. If, in civil causes of property, a witness must be entirely disinterested, how much more proper is it he should be so in cases of life and death! This power is naturally vested in the President, because it is his duty to watch over the public safety; and as that may frequently require the evidence of accomplices to bring great offenders to justice, he ought to be intrusted with the most effectual means of procuring it.
I beg leave further to observe, that, for another reason, I think there is a propriety in leaving this power to the general discretion of the executive magistrate, rather than to fetter it in any manner which has been proposed. It may happen that many men, upon plausible pretences, may be seduced into very dangerous measures against their country. They may aim, by an insurrection, to redress imaginary grievances, at the same time believing, upon false suggestions, that their exertions are necessary to save their country from destruction. Upon cool reflection, however, they possibly are convinced of their error, and clearly see through the treachery and villany of their leaders. In this situation, if the President possessed the power of pardoning, they probably would throw themselves on the equity of the government, and the whole body be peaceably broken up. Thus, at a critical moment, the President might, perhaps, prevent a civil war. But if there was no authority to pardon, in that delicate exigency, what would be the consequence? The principle of self-preservation would prevent their parting. Would it not be natural for them to say, “We shall be punished if we disband. Were we sure of mercy, we would peaceably part. But we know not that there is any chance of this. We may as well meet one kind of death as another. We may as well die in the field as at the gallows? I therefore submit to the committee if this power be not highly necessary for such a purpose.
We have seen a happy instance of the good effect of such an exercise of mercy in the state of Massachusetts, where, very lately, there was so formidable an insurrection. I believe a great majority of the insurgents were drawn into it by false artifices. They at length saw their error, and were willing to disband. Government, by a wise exercise of lenity, after having shown its power, generally granted a pardon; and the whole party were dispersed. There is now as much peace in that country as in any state in the Union.
A particular instance which occurs to me shows the utility of this power very strongly. Suppose we were involved in war. It would be then necessary to know the designs of the enemy. This kind of knowledge cannot always be procured but by means of spiesa set of wretches whom all nations despise, but whom all employ; and, as they would assuredly be used against us, a principle of self-defence would urge and justify the use of them on our part. Suppose, therefore, the President could prevail upon a man of some importance to go over to the enemy, in order to give him secret information of his measures. He goes off privately to the enemy. He feigns resentment against his country for some ill usage, either real or pretended, and is received, possibly, into favor and confidence. The people would not know the purpose for which he was employed. In the mean time, he secretly informs the President of the enemy’s designs, and by this means, perhaps, those designs are counteracted, and the country saved from destruction. After his business is executed, he returns into his own country, where the people, not knowing he had rendered them any service, are naturally exasperated against him for his supposed treason. I would ask any gentleman whether the President ought not to have the power of pardoning this man. Suppose the concurrence of the Senate, or any other body, was necessary; would this obnoxious person be properly safe? We know in every country there is a strong prejudice against the executive authority. If a prejudice of this kind, on such an occasion, prevailed against the President, the President might be suspected of being influenced by corrupt motives, and the application in favor of this man be rejected. Such a thing might very possibly happen when the prejudices of party were strong; and therefore no man, so clearly entitled as in the case I have supposed, ought to have his life exposed to so hazardous a contingency.
The power of impeachment is given by this Constitution, to bring great offenders to punishment. It is calculated to bring them to punishment for crime which it is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against the government. This power is lodged in those who represent the great body of the people, because the occasion for its exercise will arise from acts of great injury to the community, and the objects of it may be such as cannot be easily reached by an ordinary tribunal. The trial belongs to the Senate, lest an inferior tribunal should be too much awed by so powerful an accuser. After trial thus solemnly conducted, it is not probable that it would happen once in a thousand times, that a man actually convicted would be entitled to mercy; and if the President had the power of pardoning in such a case, this great check upon high officers of state would lose much of its influence. It seems, therefore, proper that the general power of pardoning should be abridged in this particular instance. The punishment annexed to this conviction on impeachment can only be removal from office, and disqualification to hold any place of honor, trust, or profit. But the person convicted is further liable to a trial at common law, and may receive such common-law punishment as belongs to a description of such offences, if it be punishable by that law. I hope, for the reasons I have stated, that the whole of this clause will be approved by the committee. The regulations altogether, in my opinion, are as wisely contrived as they could be. It is impossible for imperfect beings to form a perfect system. If the present one may be productive of possible inconveniences, we are not to reject it for that reason, but inquire whether any other system could be devised which would be attended with fewer inconveniences, in proportion to the advantages resulting. But we ought to be exceedingly attentive in examining, and still more cautious in deciding, lest we should condemn what may be worthy of applause, or approve of what may be exceptionable. I hope that, in the explanation of this clause, I have not improperly taken up the time of the committee.
Mr. MILLER acknowledged that the explanation of this clause by the member from Edenton had obviated some objections which he had to it; but still he could not entirely approve of it. He could not see the necessity of vesting this power in the President. He thought that his influence would be too great in the country, and particularly over the military, by being the commander-in-chief of the army, navy, and militia. He thought he could too easily abuse such extensive powers, and was of opinion that Congress ought to have power to direct the motions of the army. He considered it as a defect in the Constitution, that it was not expressly provided that Congress should have the direction of the motions of the army.
Mr. SPAIGHT answered, that it was true that the Command of the army and navy was given to the President; but that Congress, who had the power of raising armies, could certainly prevent any abuse of that authority in the Presidentthat they alone had the means of supporting armies, and that the President was impeachable if he in any manner abused his trust. He was surprised that any objection should be made to giving the command of the army to one man; that it was well known that the direction of an army could not be properly exercised by a numerous body of men; that Congress had, in the last war, given the exclusive command of the army to the commander-in-chief, and that if they had not done so, perhaps the independence of America would not have been established.
Mr. PORTER. Mr. Chairman, there is a power vested in the Senate and President to make treaties, which shall be the supreme law of the land. Which among us can call them to account? I always thought that there could be no proper exercise of power without the suffrage of the people; yet the House of Representatives has no power to intermeddle with treaties. The President and seven senators, as nearly as I can remember, can make a treaty which will be of great advantage to the Northern States, and equal injury to the Southern States. They might give up the rivers and territory of the Southern States. Yet, in the preamble of the Constitution, they say all the people have done it. I should be glad to know what power there is of calling the President and Senate to account.
Mr. SPAIGHT answered that, under the Confederation, two thirds of the states might make treaties; that, if the senators from all the states attended when a treaty was about to be made, two thirds of the states would have a voice in its formation. He added, that he would be glad to ask the gentleman what mode there was of calling the present Congress to account.
Mr. PORTER repeated his objection. He hoped that gentlemen would not impose on the house; that the President could make treaties with two thirds of the senate; that the President, in that case, voted rather in a legislative than in an executive capacity, which he thought impolitic.
Gov. JOHNSTON. Mr. Chairman, in my opinion, if there be any difference between this Constitution and the Confederation, with respect to treaties, the Constitution is more safe than the Confederation. We know that two members from each state have a right, by the Confederation, to give the vote of that state, and two thirds of the states have a right also to make treaties. By this Constitution, two thirds of the senators cannot make treaties without the concurrence of the President. Here is, then, an additional guard. The calculation that seven or eight senators, with the President, can make treaties, is totally erroneous. Fourteen is a quorum; two thirds of which are ten. It is upon the improbable supposition that they will not attend, that the objection is founded that ten men, with the President, can make treaties. Can it be reasonably supposed that they will not attend when the most important business is agitatedwhen the interests of their respective states are most immediately affected?
Mr. MACLAINE observed, that the gentleman was out of order with his objection that they had not yet come to the clause which enables the Senate and President to make treaties.
The 2d clause of the 2d section read.
Mr. SPENCER. Mr. Chairman, I rise to declare my disapprobation of this, likewise. h is an essential article in our Constitution, that the legislative, the executive, and the supreme judicial powers, of government, ought to be forever separate and distinct from each other. The Senate, in the proposed government of the United States, are possessed of the legislative authority in conjunction with the House of Representatives. They are likewise possessed of the sole power of trying all impeachments, which, not being restrained to the officers of the United States, may be intended to include all the officers of the several states in the Union. And by this clause they possess the chief of the executive power; they are, in effect, to form treaties, which are to be the law of the land; and they have obviously, in effect, the appointment of all the officers of the United States. The President may nominate, but they have a negative upon his nomination, till he has exhausted the number of those he wishes to be appointed. He will be obliged, finally, to acquiesce in the appointment of those whom the Senate shall nominate, or else no appointment will take place. Hence it is easy to perceive that the President, in order to do any business, or to answer any purpose in this department of his office, and to keep himself out of perpetual hot water, will be under a necessity to form a connection with that powerful body, and be contented to put himself at the head of the leading members who compose it. I do not expect, at this day, that the outline and organization of this proposed government will be materially altered. But I cannot but be of opinion that the government would have been infinitely better and more secure, if the President had been provided with a standing council, composed of one member from each of the states, the duration of whose office might have been the same as that of the President’s office, or for any other period that might have been thought more proper; for it can hardly be supposed, if two senators can be sent from each state, who are fit to give counsel to the President, that one such cannot be found in each state qualified for that purpose. Upon this plan, one half the expense of the Senate, as a standing council to the President in the recess of Congress, would evidently be saved; each state would have equal weight in this council, as it has now in the Senate. And what renders this plan the more eligible is, that two very important consequences would result from it, which cannot result from the present plan. The first is, that the whole executive department, being separate and distinct from that of the legislative and judicial, would be amenable to the justice of the land: the President and his council, or either or any of them, might be impeached, tried, and condemned, for any misdemeanor in office. Whereas, on the present plan proposed, the Senate, who are to advise the President, and who, in effect, are possessed of the chief executive powers, let their conduct be what it will, are not amenable to the public justice of their country: if they may be impeached, there is no tribunal invested with jurisdiction to try them. It is true that the proposed Constitution provides that, when the President is tried, the chief justice shall preside. But I take this to be very little more than a farce. What can the Senate try him for? For doing that which they have advised him to do, and which, without their advice, he would not have done. Except what he may do in a military capacitywhen, I presume, he will be entitled to be tried by a court martial of general officershe can do nothing in the executive department without the advice of the Senate, unless it be to grant pardons, and adjourn the two Houses of Congress to some day to which they cannot agree to adjourn themselvesprobably to some term that may be convenient to the leading members of the Senate.
I cannot conceive, therefore, that the President can ever be tried by the Senate with any effect, or to any purpose, for any misdemeanor in his office, unless it should extend to high treason, or unless they should wish to fix the odium of any measure on him, in order to exculpate themselves; the latter of which I cannot suppose will ever happen.
Another important consequence of the plan I wish had taken place is that, the office of the President being thereby-unconnected with that of the legislative, as well as the judicial, he would have that independence which is necessary to form the intended check upon the acts passed by the legislature before they obtain the sanction of laws. But, on the present plan, from the necessary connection of the President’s office with that of the Senate, I have little ground to hope that his firmness will long prevail against the over-bearing power and influence of the Senate, so far as to answer the purpose of any considerable check upon the acts they may think proper to pass in conjunction with the House of Representatives; for he will soon find that, unless he inclines to compound with them, they can easily hinder and control him in the principal articles of his office. But, if nothing else could be said in favor of the plan of a standing council to the President, independent of the Senate, the dividing the power of the latter would be sufficient to recommend it; it being of the utmost importance towards the security of the government, and the liberties of the citizens under it. For I think it must be obvious to every unprejudiced mind, that the combining in the Senate the power of legislation, with a controlling share in the appointment of all the officers of the United States, (except those chosen by the people,) and the power of trying all impeachments that any be found against such officers, invests the Senate at once with such an enormity of power, and with such an overbearing and uncontrollable influence, as is incompatible with every idea of safety to the liberties of a free country, and is calculated to swallow up all other powers, and to render that body a despotic aristocracy.
Mr. PORTER recommended the most serious consideration when they were about to give away power; that they were not only about to give away power to legislate or make laws of a supreme nature, and to make treaties, which might sacrifice the most valuable interests of the community, but to give a power to the general government to drag the inhabitants to any part of the world as long as they pleased; that they ought not to put it in the power of any man, or any set of men, to do so; and that the representation was defective, being not a substantial, immediate representation. He observed that, as treaties were the supreme law of the land, the House of Representatives ought to have a vote in making them, as well as in passing them.
Mr. J. M’DOWALL. Mr. Chairman: permit me, sir, to make a few observations, to show how improper it is to place so much power in so few men, without any responsibility whatever. Let us consider what number of them is necessary to transact the most important business. Two thirds of the members present, with the President, can make a treaty. Fourteen of them are a quorum, two thirds of which are ten. These ten may make treaties and alliances. They may involve us in any difficulties, and dispose of us in any manner, they please. Nay, eight is a majority of a quorum, and can do every thing but make treaties. How unsafe are we, when we have no power of bringing those to an account! It is absurd to try them before their own body. Our lives and property are in the hands of eight or nine men. Will these gentlemen intrust their rights in this manner?
Mr. DAVIE. 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.
The power of making treaties has, in all countries and governments, been placed in the executive departments. This has not only been grounded on the necessity and reason arising from that degree of secrecy, design, and despatch, which is always necessary in negotiations between nations, but to prevent their being impeded, or carried into effect, by the violence, animosity, and heat of parties, which too often infect numerous bodies. Both of these reasons preponderated in the foundation of this part of the system. It is true, sir, that the late treaty between the United States and Great Britain has not, in some of the states, been held as the supreme law of the laud. Even in this state, an act of Assembly passed to declare its validity. But no doubt that treaty was the supreme law of the land without the sanction of the Assembly; because, by the Confederation, Congress had power to make treaties. It was one of those original rights of sovereignty which were vested in them; and it was not the deficiency of constitutional authority in Congress to make treaties that produced the necessity of a law to declare their validity; but it was owing to the entire imbecility of the Confederation.
On the principle of the propriety of vesting this power in the executive department, it would seem that the whole power of making treaties ought to be left to the President, who, being elected by the people of the United States at large, will have their general interest at heart. But that jealousy of executive power which has shown itself so strongly in all the American governments, would not admit this improvement. Interest, sir, has a most powerful influence over the human mind, and is the basis on which all the transactions of mankind are built. It was mentioned before that the extreme jealousy of the little states, and between the commercial states and the non-importing states, produced the necessity of giving an equality of suffrage to the Senate. The same causes made it indispensable to give to the senators, as representatives of states, the power of making, or rather ratifying, treaties. Although it militates against every idea of just proportion that the little state of Rhode Island should have the same suffrage with Virginia, or the great commonwealth of Massachusetts, yet the small states would not consent to confederate without an equal voice in the formation of treaties. Without the equality, they apprehended that their interest would be neglected or sacrificed in negotiations. This difficulty could not be got over. It arose from the unalterable nature of things. Every man was convinced of the inflexibility of the little states in this point. It therefore became necessary to give them an absolute equality in making treaties.
The learned gentleman on my right, (Mr. Spencer,) after saying that this was an enormous power, and that blending the different branches of government was dangerous, said, that such accumulated powers were inadmissible, and contrary to all the maxims of writers. It is true, the great Montesquieu, and several other writers, have laid it down as a maxim not to be departed from, that the legislative, executive, and judicial powers should be separate and distinct. But the idea that these gentlemen had in view has been misconceived or misrepresented. An absolute and complete separation is not meant by them. It is impossible to form a government upon these principles. Those states who had made an absolute separation of these three powers their leading principle, have been obliged to depart from it. It is a principle, in fact, which is not to be found in any of the state governments. In the government of New York, the executive and judiciary have a negative similar to that of the President of the United States. This is a junction of all the three powers, and has been attended with the most happy effects. In this state, and most of the others, the executive and judicial powers are dependent on the legislature. Has not the legislature of this state the power of appointing the judges? Is it not in their power also to fix their compensation? What independence can there be in persons who are obliged to be obsequious and cringing for their office and salary? Are not our judges dependent on the legislature for every morsel they eat? It is not difficult to discern what effect this may have on human nature. The meaning of this maxim I take to be thisthat the whole legislative, executive, and judicial powers should not be exclusively blended in any one particular instance. The Senate try impeachments. This is their only judicial cognizance. As to the ordinary objects of a judiciarysuch as the decision of controversies, the trial of criminals, &c. the judiciary is perfectly separate and distinct from the legislative and executive branches. The House of Lords, in England, have great judicial powers; yet this is not considered as a blemish in their constitution. Why? Because they have not the whole legislative power. Montesquieu, at the same time that he laid down this maxim, was writing in praise of the British government. At the very time he recommended this distinction of powers, he passed the highest eulogium on a constitution wherein they were all partially blended. So that the meaning of the maxim, as laid down by him and other writers, must be, that these three branches must not be entirely blended in one body. And this system before you comes up to the maxim more completely than the favorite government of Montesquieu. The gentleman from Anson has said that the Senate destroys the independence of the President, because they must confirm the nomination of officers. The necessity of their interfering in the appointment of officers resulted from the same reason which produced the equality of suffrage. In other countries, the executive or chief magistrate, alone, nominates and appoints officers. The small states would not agree that the House of Representatives should have a voice in the appointment to offices; and the extreme jealousy of all the states would not give it to the President alone. In my opinion, it is more proper as it is than it would be in either of those cases. The interest of each state will be equally attended to in appointments, and the choice will be more judicious by the junction of the Senate to the President. Except in the appointments of officers, and making of treaties, he is not joined with them in any instance. He is perfectly independent of them in his election. It is impossible for human ingenuity to devise any mode of election better calculated to exclude undue influence. He is chosen by the electors appointed by the people. He is elected on the same day in every state, so that there can be no possible combination between the electors. The affections of the people can be the only influence to procure his election. If he makes a judicious nomination, is it to be presumed that the Senate will not concur in it? Is it to be supposed the legislatures will choose the most depraved men in the states to represent them in Congress? Should he nominate unworthy characters, can it be reasonably concluded that they will confirm it? He then says that the senators will have influence to get themselves reëlected; nay, that they will be perpetually elected.
I have very little apprehension on this ground. I take it for granted that the man who is once a senator will very probably be out for the next six years. Legislative influence changes. Other persons rise, who have particular connections to advance them to office. If the senators stay six years out of the state governments, their influence will be greatly diminished. It will be impossible for the most influential character to get himself reëlected after being out of the country so long. There will be an entire change in six years. Such futile objections, I fear, proceed from an aversion to any general system. The same learned gentleman says that it would he better, were a council, consisting of one from every state, substituted to the Senate. Another gentleman has objected to the smallness of this number. This shows the impossibility of satisfying all men’s minds. I beg this committee to place these two objections together, and see their glaring inconsistency. If there were thirteen counsellors, in the manner he proposes, it would destroy the responsibility of the President. He must have acted also with a majority of them. A majority of them is seven, which would be a quorum. A majority of these would be four, and every act to which the concurrence of the Senate and the President is necessary could be decided by these four. Nay, less than a majorityeven onewould suffice to enable them to do the most important acts. This, sir, would be the effect of this council. The dearest interests of the community would be trusted to two men. Had this been the case, the loudest clamors would have been raised, with justice, against the Constitution, and these gentlemen would have loaded their own proposition with the most virulent abuse.
On a due consideration of this clause, it appears that this power could not have been lodged as safely any where else as where it is. The honorable gentleman (Mr. M’Dowall) has spoken of a consolidation in this government. That is a very strange inconsistency, when he points out, at the same time, the necessity of lodging the power of making treaties with the representatives, where the idea of a consolidation can alone exist; and when he objects to placing it in the Senate, where the federal principle is completely preserved. As the Senate represents the sovereignty of the states, whatever might affect the states in their political capacity ought to be left to them. This is the certain means of preventing a consolidation. How extremely absurd is it to call that disposition of power a consolidation of the states, which must to all eternity prevent it! I have only to add the principle upon which the General Convention wentthat the power of making treaties could nowhere be so safety lodged as in the President and Senate; and the extreme jealousy subsisting between some of the states would not admit of it elsewhere. If any man will examine the operation of that jealousy, in his own breast, as a citizen of North Carolina, he will soon feel the inflexibility that results from it, and perhaps be induced to acknowledge the propriety of this arrangement.
Mr, M’DOWALL declared, that he was of the same opinion as before, and that he believed the observations which the gentleman had made, on the apparent inconsistency of his remarks, would have very little weight with the committee; that giving such extensive powers to so few men in the Senate was extremely dangerous; and that he was not the more reconciled to it from its being brought about by the inflexibility of the small, pitiful states to the north. He supposed that eight members in the Senate from those states, with the President, might do the most important acts.
Mr. SPAIGHT. Mr. Chairman, the gentleman objects to the smallness of the number, and to their want of responsibility. He argues as if the senators were never to attend, and as if the northern senators were to attend more regularly than those from the south. Nothing can be more unreasonable than to suppose that they will be absent on the most important occasions. What responsibility is there in the present Congress that is not in the Senate? What responsibility is therein our state legislature? The senators are as responsible as the members of our legislature. It is to be observed, that though the senators are not impeachable, yet the President is. He may be impeached and punished for giving his consent to a treaty, whereby the interest of the community is manifestly sacrificed.
Mr. SPENCER. Mr. Chairman, the worthy gentleman from Halifax has endeavored to obviate my objections against the want of responsibility in the President and senators, and against the extent of their power. He has not removed my objections. It is totally out of their power to show any degree of responsibility. The executive is tried by his advisers. The reasons I urged are so cogent and strong with me, that I cannot approve of this clause. I can see nothing of any weight against them. Mr. PORTER. Mr. Chairman, I only rise to make one observation on what the gentleman has said. He told us, that if the Senate were not amenable, the President was. I beg leave to ask the gentleman if it be not inconsistent that they should punish the President, whom they advised themselves to do what he is impeached for. My objection still remains. I cannot find it in the least obviated.
Mr. BLOODWORTH desired to be informed whether treaties were not to be submitted to the Parliament in Great Britain before they were valid.
Mr. IREDELL. Mr. Chairman, the objections to this clause deserve great consideration. I believe it will be easy to obviate the objections against it, and that it will be found to have been necessary, for the reasons stated by the gentleman from Halifax, to vest this power in some body composed of representatives of states, where their voices should be equal; for in this case the sovereignty of the states is particularly concerned, and the great caution of giving the states an equality of suffrage in making treaties, was for the express purpose of taking care of that sovereignty, and attending to their interests, as political bodies, in foreign negotiations. It is objected to as improper, because, if the President or Senate should abuse their trust, there is not sufficient responsibility, since he can only be tried by the Senate, by whose advice he acted; and the Senate cannot be tried at all. I beg leave to observe that, when any man is impeached, it must be for an error of the heart, and not of the head. God forbid that a man, in any country in the world, should be liable to be punished for want of judgment. This is not the case here. As to errors of the heart, there is sufficient responsibility. Should these be committed, there is a ready way to bring him to punishment. This is a responsibility which answers every purpose that could be desired by a people jealous of their liberty. I presume that, if the President, with the advice of the Senate, should make a treaty with a foreign power, and that treaty should be deemed unwise, or against the interest of the country, yet if nothing could be objected against it but the difference of opinion between them and their constituents, they could not justly be obnoxious to punishment. If they were punishable for exercising their own judgment, and not that of their constituents, no man who regarded his reputation would accept the office either of a senator or President. Whatever mistake a man may make, he ought not to be punished for it, nor his posterity rendered infamous. But if a man be a villain, and wilfully abuse his trust, he is to be held up as a public offender, and ignominiously punished. A public officer ought not to act from a principle of fear. Were he punishable for want of judgment, he would be continually in dread; but when he knows that nothing but real guilt can disgrace him, he may do his duty firmly, if he be an honest man; and if he be not, a just fear of disgrace may, perhaps, as to the public, have nearly the effect of an intrinsic principle of virtue. According to these principles, I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other. If the President had received a bribe, without the privity or knowledge of the Senate, from a foreign power, and, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty, if it appeared afterwards that this was the case, would not that Senate be as competent to try him as any other persons whatsoever? Would they not exclaim against his villany? Would they not feel a particular resentment against him, for being made the instrument of his treacherous purposes? In this situation, if any objection could be made against the Senate as a proper tribunal, it might more properly be made by the President himself, lest their resentment should operate too strongly, rather than by the public, on the ground of a supposed partiality. The President must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to thee Senate every material intelligence he receives. If it should appear that he has not given them full information, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them, in this case, I ask whether, upon an impeachment for a misdemeanor upon such an account, the Senate would probably favor him. With respect to the impeachability of the Senate, that is a matter of doubt.
There have been no instances of impeachment for legislative misdemeanors; and we shall find, upon examination, that the inconveniences resulting from such impeachments would more than preponderate the advantages. There is no greater honor in the world than being the representative of a free people. There is no trust on which the happiness of the people has a greater dependence. Yet who ever heard of impeaching a member of the legislature for any legislative misconduct? It would be a great check on the public business, if a member of the Assembly was liable to punishment for his conduct as such. Unfortunately, it is the case, not only in other countries, but even in this, that division and differences in opinion will continually arise. On many questions there will be two or more parties. These often judge with little charity of each other, and attribute every opposition to their own system to an ill motive, We know this very well from experience; belt, in my opinion, this constant suspicion is frequently unjust. I believe, in general, both parties really think themselves right, and that the majority of each commonly act with equal innocence of intention. But, with the usual want of charity in these cases, how dangerous would it be to make a member of the legislature liable to impeachment! A mere difference of opinion might be interpreted, by the malignity of party, into a deliberate, wicked action.
It therefore appears to me at least very doubtful whether it would be proper to render the Senate impeachable at all; especially as, in the branches of executive government where their concurrence is required, the President is the primary agents and plainly responsible, and they, in fact, are but a council to validate proper, or restrain improper, conduct in him; but if a senator is impeachable, it could only be for corruption, or some other wicked motive, in which case, surely those senators who had acted from upright motives would be competent to try him. Suppose there had been such a council as was proposed, consisting of thirteen, one from each state, to assist the President in making treaties, &c.; more general alarm would have been excited, and stronger opposition made to this Constitution, than even at present. The power of the President would have appeared more formidable, and the states would have lost one half of their security; since, instead of two representatives, which each has now for those purposes, they would have had but one. A gentleman from New Hanover has asked whether it is not the practice, in Great Britain, to submit treaties to Parliament, before they are esteemed as valid. The king has the sole authority, by the laws of that country, to make treaties. After treaties are made, they are frequently discussed in the two houses, where, of late years, the most important measures of government have been narrowly examined. It is usual to move for an address of approbation; and such has been the complaisance of Parliament for a long time, that this seldom hath been withheld. Sometimes they pass an act in conformity to the treaty made; but this, I believe, is not for the mere purpose of confirmation, but to make alterations in a particular system, which the change of circumstances requires. The constitutional power of making treaties is vested in the crown; and the power with whom a treaty is made considers it as binding, without any act of Parliament, unless an alteration by such is provided for in the treaty itself, which I believe is sometimes the case. When the treaty of peace was made in 1763, it contained stipulations for the surrender of some islands to the French. The islands were given up, I believe, without any act of Parliament. The power of making treaties is very important, and must be vested somewhere, in order to counteract the dangerous designs of other countries, and to be able to terminate a war when it is begun. Were it known that our government was weak, two or more European powers might combine against us. Would it not be politic to have some power in this country, to obviate this danger by a treaty? If this power was injudiciously limited, the nations where the power was possessed without restriction would have greatly the advantage of us in negotiation; and every one must know, according to modern policy, of what moment an advantage in negotiation is. The honorable member from Anson said that the accumulation of all the different branches of power in the Senate would be dangerous. The experience of other countries shows that this fear is without foundation. What is the Senate of Great Britain opposed to the House of Commons, although it be composed of an hereditary nobility, of vast fortunes, and entirely independent of the people Their weight is far inferior to that of the Commons. Here is a strong instance of the accumulation of powers of the different branches of government without producing any inconvenience. That Senate, sir, is a separate branch of the legislature, is the great constitutional council of the crown, and decides on lives and fortunes in impeachments, besides being the ultimate tribunal for trying controversies respecting private rights. Would it not appear that all these things should render them more formidable than the other house? Yet the Commons have generally been able to carry every thing before them. The circumstance of their representing the great body of the people, alone gives them great weight. This weight has great authority added to it, by their possessing the right (a right given to the people’s representatives in Congress) of exclusively originating money bills. The authority over money will do every thing. A government cannot be supported without money. Our representatives may at any time compel the Senate to agree to a reasonable measure, by withholding supplies till the measure is consented to. There was a great debate, in the Convention. whether the Senate should have an equal power of originating money bills. It was strongly insisted, by some, that they should; but at length a majority thought it unadvisable, and the clause was passed as it now stands. I have reason to believe that our representatives had a great share in establishing this excellent regulation, and in my opinion they deserve the public thanks for it. It has been objected that this power must necessarily injure the people, inasmuch as abate majority of the Senate might alone be assembled, and eight would be sufficient for a decision. This is on a supposition that many of the senators would neglect attending. 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. When it is known of how much importance attendance is, no senator would dare to incur the universal resentment of his fellow-citizens by grossly absenting himself from his duty. Do gentlemen mean that it ought to have been provided, by the Constitution, that the whole body should attend before particular business was done? Then it would be in the power of a few men, by neglecting to attend, to obstruct the public business, and possibly bring on the destruction of their country. If this power be improperly vested, it is incumbent on gentlemen to tell us in what body it could be more safely and properly lodged.
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. Should the government, on trial, be found to want amendments, those amendments can be made in a regular method, in a mode prescribed by the Constitution itself. Massachusetts, South Carolina, New Hampshire, and Virginia, have all proposed amendments; but they all concurred in the necessity of an immediate adoption. 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.
Mr. SPENCER. Mr. Chairman, I think that no argument can be used to show that this power is proper. If the whole legislative body if the House of Representatives do not interfere in making treaties, I think they ought at least to have the sanction of the whole Senate. The worthy gentleman last up has mentioned two cases wherein he supposes that impeachments will be fairly tried by the senators. He supposes a case where the President had been guilty of corruption, and by that means had brought over and got the sanction of two thirds of the senators; and that, if it should be afterwards found that he brought them over by artifices, they would be a proper body to try him. As they will be ready to throw the odium off their own shoulders on him, they may pronounce sentence against him. He mentions another case, where, if a majority was obtained by bribing some of the senators, those who were innocent might try those who were guilty. I think that these cases will happen but rarely in comparison to other cases, where the senators may advise the President to deviate from his duty, and where a majority of them may be guilty. And should they be tried by their own body when thus guilty, does not every body see the impropriety of it? It is universally disgraceful, odious, and contemptible, to have a trial where the judges are accessory to the misdemeanor of the accused. Whether the accusation against him be true or not, if afraid for themselves, they will endeavor to throw the odium upon him. There is an extreme difference between the case of trying this officer and that of trying their own members. They are so different, that I consider they will always acquit their own members; and if they condemn the President, it will be to exonerate themselves. It appears to me that the powers are too extensive, and not sufficiently guarded. I do not wish that an aristocracy should be instituted. An aristocracy may arise out of this government, though the members be not hereditary. I would therefore wish that every guard should be placed, in order to prevent it. I wish gentlemen would reflect that the powers of the Senate are so great in their legislative and judicial capacities, that, when added to their executive powers, particularly their interference in the appointment of all officers in the continent, they will render their power so enormous as to enable them to destroy our rights and privileges. This, sir, ought to be strictly guarded against.
Mr. IREDELL. Mr. Chairman, the honorable gentleman must be mistaken. He suggests that an aristocracy will arise out of this government. Is there any thing like an aristocracy in this government? This insinuation is uncandidly calculated to alarm and catch prejudices. In this government there is not the least symptom of an aristocracy, which is, where the government is in a select body of men entirely independent of the people; as, for instance, an hereditary nobility, or a senate for life, filling up vacancies by their own authority. Will any member of this government hold his station by any such tenure? Will not all authority flow, in every instance, directly or indirectly from the people? It is contended, by that gentleman, that the addition of the power of making treaties to their other powers, will make the Senate dangerous; that they would be even dangerous to the representatives of the people. The gentleman has not proved this in theory. Whence will he adduce an example to prove it? What passes in England directly disproves his assertion. In that country, the representatives of the people are chosen under undue influence; frequently by direct bribery and corruption. They are elected for seven years, and many of the members hold offices under the crown some during pleasure, others for life. They are also not a genuine representation of the people, but, from a change of circumstances, a mere shadow of it. Yet, under these disadvantages, they having the sole power of originating money bills, it has been found that the power of the king and lords is much less considerable than theirs. The high prerogatives of the king, and the great power and wealth of the lords, have been more than once mentioned in the course of the debates. If, under such circumstances, such representatives, mere shadows of representatives, by having the power of the purse, and the sacred name of the people, to rely upon, are an overmatch for the king and lords, who have such great hereditary qualifications, we may safely conclude that our own representatives, who will be a genuine representation of the people, and having equally the right of originating money bills, will, at least, be a match for the Senate, possessing qualifications so inferior to those of the House of Lords in England.
It seems to be forgotten that the Senate is placed there for a very valuable purpose as a guard against any attempt of consolidation. The members of the Convention were as much averse to consolidation as any gentleman on this floor; but without this institution, (I mean the Senate, where the suffrages of the states are equal,) the danger would be greater. There ought to be some power given to the Senate to counteract the influence of the people by their biennial representation in the other house, in order to preserve completely the sovereignty of the states. If the people, through the medium of their representatives, possessed a share in making treaties and appointing officers, would there not be a greater balance of power in the House of Representatives than such a government ought to possess? It is true that it would be very improper if the Senate had authority to prevent the House of Representatives from protecting the people. It would be equally so if the House of Representatives were able to prevent the Senate from protecting the sovereignty of the states. It is probable that either house would have sufficient authority to prevent much mischief. As to the suggestion of a tendency to aristocracy, it is totally groundless. I disdain every principle of aristocracy. There is not a shadow of an aristocratical principle in this government. The President is only chosen for four years liable to be impeached and dependent on the people at large for his reelection. Can this mode of appointment be said to have an aristocratical principle in it? The Senate is chosen by the legislatures. Let us consider the example of other states, with respect to the construction of their Senate. In this point, most of them differ; though they almost all concur in this, that the term of election for senators is longer than that for representatives. The reason of this is, to introduce stability into the laws, and to prevent that mutability which would result from annual elections of both branches. In New York, they are chosen for three years; in Virginia, they are chosen for four years; and in Maryland, they are chosen for five years. In this Constitution, although they are chosen for six years, one third go out every second year, (a method pursued in some of the state constitutions,) which at the same time secures stability to the laws, and a due dependence on the state legislatures Will any man say that there are any aristocratical principles in a body who have no power independent of the people, and whereof one third of the members are chosen, every second year, by a wise and select body of electors? I hope, therefore, that it will not be considered that there are any aristocratical principles in this government, and that it will be given up as a point not to be contended for. The gentleman contends that a council ought to be instituted in this case. One objection ought to be compared with another. It has been objected against the Constitution that it will be productive of great expense. Had there been a council, it would have been objected that it was calculated for creating new offices, and increasing the means of undue influence. Though he approves of a council, others would not. As to offices, the Senate has no other influence but a restraint on improper appointments. The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate. Suppose a man nominated by the President; with what face would any senator object to him without a good reason? There must be some decorum in every public body. He would not say, “I do not choose this man, because a friend of mine wants the office.” Were he to object to the nomination of the President, without assigning any reason, his conduct would be reprobated, and still might not answer his purpose. Were an office to be vacant, for which a hundred men on the continent were equally well qualified, there would be a hundred chances to one whether his friend would be nominated to it. This, in effect, is but a restriction on the President. The power of the Senate would be more likely to be abused were it vested in a council of thirteen, of which there would be one from each state. One man could be more easily influenced than two. We have therefore a double security. I am firmly of opinion that, if you take all the powers of the President and Senate together, the vast influence of the representatives of the people will preponderate against them in every case where the public good is really concerned.
Mr. BLOODWORTH. Mr. Chairman, I confess I am sorry to take up any time. I beg leave to make a few observations; for it would be an Herculean task, and disagreeable to this committee, to mention every thing. It has indeed been objected, and urged, that the responsibility of the Senate was not sufficient to secure the states. When we consider the length of the term for which they are elected, and the extent of their powers, we must be persuaded that there is no real security. A gentleman has said that the Assembly of North Carolina are rogues. It is, then, probable that they may be corrupted. In this case, we have not a sufficient cheek on those gentlemen who are gone six years. A parallel is drawn between them and the members of our Assembly; but if you reflect a moment, you will find that the comparison is not good. There is a responsibility in the members of the Assembly: at the end of a year they are liable to be turned out. This is not the case with the senators. I beg gentlemen to consider the extreme difference between the two cases. Much is said about treaties. I do not dread this so much as what will arise from the jarring interests of the Eastern, Southern, and the Middle States. They are different in soil, climate, customs, produce, and every thing. Regulations will be made evidently to the disadvantage of some part of the community, and most probably to ours. I will not take up more of the time of the committee.
3d clause of the 2d section of the 2d article read.
Mr. MACLAINE. It has been objected to this part, that the power of appointing officers was something like a monarchical power. Congress are not to be sitting at all times; they will only sit from time to time, as the public business may render it necessary. Therefore the executive ought to make temporary appointments, as well as receive ambassadors and other public ministers. This power can be vested nowhere but in the executive, because he is perpetually acting for the public; for, though the Senate is to advise him in the appointment of officers, &c., yet, during the recess, the President must do this business, or else it will be neglected; and such neglect may occasion public inconveniences. But there is an objection made to another part, that has not yet been read. His power of adjourning both houses, when they disagree, has been by some people construed to extend to any length of time. If gentlemen look at another part of the Constitution, they will find that there is a positive injunction, that the Congress must meet at least once in every year; so that he cannot, were he so inclined, prevent their meeting within a year. One of the best provisions contained in it is, that he shall commission all officers of the United States, and shall take care that the laws be faithfully executed. If he takes care to see the laws faithfully executed, it will be more than is done in any government on the continent; for I will venture to say that our government, and those of the other states, are, with respect to the execution of the laws, in many respects mere ciphers.
Rest of the article read without any observations.
Article 3d, 1st and 2d sections, read.
Mr. SPENCER. 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 eases 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 eases 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. Nothing can be more oppressive than the cognizance with respect to controversies between citizens of different states. In all cases of appeal, those persons who are able to pay had better pay down in the first instance, though it be unjust, than be at such a dreadful expense by going such a distance to the Supreme Federal Court. Some of the most respectable states have proposed, by way of amendments, to strike out a great part of these two clauses. If they be admitted as they are, it will render the country entirely unhappy. On the contrary, I see no inconvenience from reducing the power as has been proposed. I am of opinion that it is inconsistent with the happiness of the people to admit these two clauses. The state courts are. sufficient to decide the common controversies of the people, without distressing them by carrying them to such far-distant tribunals. If I did not consider these two clauses to be dangerous, I should not object to them. I mean not to object to any thing that is not absolutely necessary. I wish to be candid, and not be prejudiced or warped.
Mr. SPAIGHT. Mr. Chairman, the gentleman insinuates that differences existed in the Federal Convention respecting the clauses which he objects to. Whoever told him so was wrong; for I declare that, in that Convention, the unanimous desire of all was to keep separate and distinct the objects of the jurisdiction of the federal from that of the state judiciary. They wished to separate them as judiciously as possible, and to consult the ease and convenience of the people. The gentleman objects to the cognizance of all cases in law and equity arising under the Constitution and the laws of the United States. This objection is very astonishing. When any government is established, it ought to have power to enforce its laws, or else it might as well have no power. What but that is the use of a judiciary? The gentleman, from his profession, must know that no government can exist without a judiciary to enforce its laws, by distinguishing the disobedient from the rest of the people, and imposing sanctions for securing the execution of the laws. As to the inconvenience of distant attendance, Congress has power of establishing inferior tribunals in each state, so as to accommodate every citizen. As Congress have it in their power, will they not do it? Are we to elect men who will wantonly and unnecessarily betray us?
Mr. MACLAINE. Mr. Chairman, I hoped that some gentleman more capable than myself would have obviated the objections to this part. The objections offered by the gentleman appear to me totally without foundation. He told us that these clauses tended to a consolidation of the states. I cannot see how the states are to be consolidated by establishing these two clauses. He enumerated a number of eases which would be involved within the cognizance of the federal courts; customs, excises, duties, stamp duties a stamp on every article, on every contract in order to bring all persons into the federal court; and said that there would be necessarily courts in every district and county, which would be attended with enormous and needless expense, for that the state courts could do every thing. He went on further, and said that there would be a necessity of having sheriffs and other officers in these inferior departments. A wonderful picture indeed, drawn up in a wonderful manner! I will venture to say that the gentleman’s suggestions are not warranted by any reasonable construction of the Constitution. The laws can, in general, be executed by the officers of the states. State courts and state officers will, for the most part, probably answer the purpose of Congress as well as any other. But the gentleman says that the state courts will be swallowed up by the federal courts. This is only a general assertion, unsupported by any probable reasons or arguments. The objects of each are separate and distinct. I suppose that whatever courts there may be, they will be established according to the convenience of the people. This we must suppose from the mode of electing and appointing the members of the government. State officers will as much as possible be employed, for one very considerable reasonI mean, to lessen the expense. 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 doorsthat 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. There is an express clause which, however disingenuously it has been perverted from its true meaning, clearly demonstrates that they are confined to those powers which are given them. This clause enables them to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or any department or officers thereof.” This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws. I hope this will satisfy gentlemen.
Gov. JOHNSTON. Mr. Chairman, the learned member from Anson says that the federal courts have exclusive jurisdiction of all cases in law and equity arising under the Constitution and laws of the United States. The opinion which t have always entertained is, that they will, in these cases, as well as in several others, have concurrent jurisdiction with the state courts, and not exclusive jurisdiction. I see nothing in this Constitution which hinders a man from bringing suit wherever he thinks he can have justice done him. The jurisdiction of these courts is established for some purposes with which the state courts have nothing to do, and the Constitution takes no power from the state courts which they now have. They will have the same business which they have now, and if so, they will have enough to employ their time. We know that the gentlemen who preside in our superior courts have more business than they can determine. Their complicated jurisdiction, and the great extent of country, occasions them a vast deal of business. The addition of the business of the United States would be no manner of advantage to them. It is obvious to every one that there ought to be one Supreme Court for national purposes. But the gentleman says that a bill of rights was necessary. It appears to me, sir, that it would have been the highest absurdity to undertake to define what rights the people of the United States were entitled to; for that would be as much as to say they were entitled to nothing else. A bill of rights may be necessary in a monarchical government, whose powers are undefined. Were we in the situation of a monarchical country? No, sir. Every right could not be enumerated, and the omitted rights would be sacrificed, if security arose from an enumeration. The Congress cannot assume any other powers than those expressly given them, without a palpable violation of the Constitution. Such objections as this, I hope, will have no effect on the minds of any members in this house. When gentlemen object, generally, that it tends to consolidate the states and destroy their state judiciaries, they ought to be explicit, and explain their meaning. They make use of contradictory arguments. The Senate represents the states, and can alone prevent this dreaded consolidation; yet the powers of the Senate are objected to. The rights of the people, in my opinion, cannot be affected by the federal courts. I do not know how inferior courts will be regulated. Some suppose the state courts will have this business. Others have imagined that the continent would be divided into a number of districts, where courts would be held so as to suit the convenience of the people. Whether this or some other mode will be appointed by Congress, I know not; but this I am sure of, that the state judiciaries are not divested of their present judicial cognizance, and that we have every security that our ease and convenience will be consulted. Unless Congress had this power, their laws could not be carried into execution.
Mr. BLOODWORTH. Mr. Chairman, the worthy gentleman up last has given me information on the subject which I had never heard before. Hearing so many opinions, I did not know which was right. The honorable gentleman has said that the state courts and the courts of the United States would have concurrent jurisdiction. I beg the committee to reflect what would be the consequence of such measures. It has ever been considered that the trial by jury was one of the greatest rights of the people. I ask whether, if such causes go into the federal court, the trial by jury is not cut off, and whether there is any security that we shall have justice done us. I ask if there be any security that we shall have juries in civil causes. In criminal cases there are to be juries, but there is no provision made for having civil causes tried by jury. This concurrent jurisdiction is inconsistent with the security of that great right. If it be not, I would wish to hear how it is secured. I have listened with attention to what the learned gentlemen have said, and have endeavored to see whether their arguments had any weight; but I found none in them. Many words have been spoken, and long time taken up; but with me they have gone in at one ear, and out at the other. It would give me much pleasure to hear that the trial by jury was secured.
Mr. J. M’DOWALL. Mr. Chairman, the objections to this part of the Constitution have not been answered to my satisfaction yet. We know that the trial by a jury of the vicinage is one of the greatest securities for property. If causes are to be decided at such a great distance, the poor will be oppressed; in land affairs, particularly, the wealthy suitor will prevail. A poor man, who has a just claim on a piece of land, has not substance to stand it. Can it be supposed that any man, of common circumstances, can stand the expense and trouble of going from Georgia to Philadelphia, there to have a suit tried? And can it be justly determined without the benefit of a trial by jury? These are things which have justly alarmed the people. What made the people revolt from Great Britain? The trial by jury, that great safeguard of liberty, was taken away, and a stamp duty was laid upon them. This alarmed them, and led them to fear that greater oppressions would take place. We then resisted. It involved us in a war, and caused us to relinquish a government which made us happy in every thing else. The war was very bloody, but we got our independence. We are now giving away our dear-bought rights. We ought to consider what we are about to do before we determine.
Mr. SPAIGHT. Mr. Chairman, the trial by jury was not forgotten in the Convention; the subject took up a considerable time to investigate it. It was impossible to make any one uniform regulation for all the states, or that would include all cases where it would be necessary. It was impossible, by one expression, to embrace the whole. There are a number of equity and maritime cases, in some of the states, in which jury trials are not used. Had the Convention said that all causes should be tried by a jury, equity and maritime cases would have been included. It was therefore left to the legislature to say in what cases it should be used; and as the trial by jury is in full force in the state courts, we have the fullest security.
Mr. IREDELL. Mr. Chairman, I have waited a considerable time, in hopes that some other gentleman would fully discuss this point. I conceive it to be my duty to speak on every subject whereon I think I can throw any light; and it appears to me that some things ought to be said which no gentleman has yet mentioned. The gentleman from New Hanover said that our arguments went in at one ear, and out at the other. This sort of language, on so solemn and important an occasion, gives me pain. [Mr. Bloodworth here declared that he did not mean to convey any disrespectful idea by such an expression; that he did not mean an absolute neglect of their arguments, but that they were not sufficient to convince him; that he should be sorry to give pain to any gentleman; that he had listened. and still would listen, with attention, to what would be said. Mr. Iredell then continued.] I am by no means surprised at the anxiety which is expressed by gentlemen on this subject. Of all the trials that ever were instituted in the world, this, in my opinion, is the best, and that which I hope will continue the longest. If the gentlemen who composed the Convention had designedly omitted it, no man would be more ready to condemn their conduct than myself. But I have been told that the omission of it arose from the difficulty of establishing one uniform, unexceptionable mode: this mode of trial being different, in many particulars, in the several states. Gentlemen will be pleased to consider that there is a material difference between an article fixed in the Constitution, and a regulation by law. An article in the Constitution, however inconvenient it may prove by experience, can only be altered by altering the Constitution itself, which manifestly is a thing that ought not to be done often. When regulated by law, it can easily be occasionally altered so as best to suit the conveniences of the people. Had there been an article in the Constitution taking away that trial, it would justly have excited the public indignation. It is not taken away by the Constitution. Though that does not provide expressly for a trial by jury in civil cases, it does not say that there shall not be such a trial. The reasons of the omission have been mentioned by a member of the late General Convention, (Mr. Spaight.) There are different practices in regard to this trial in different states. In some cases, they have no juries in admiralty and equity cases; in others, they have juries in these cases, as well as in suits at common law. I beg leave to say that, if any gentleman of ability and knowledge of the subject will only endeavor to fix upon any one rule that would be pleasing to all the states under the impression of their present different habits, he will be convinced that it is impracticable. If the practice of any particular state had been adopted, others, probably, whose practice had been different, would have been discontented. This is a consequence that naturally would have ensued, had the provision been made in the Constitution itself. But when the regulation is to be by law, as that law, when found injudicious, can be easily repealed, a majority may be expected to agree upon some method, since some method or other must be first tried, and there is a greater chance of the favorite method of one state being in time preferred. It is not to be presumed that the Congress would dare to deprive the people of this valuable privilege. Their own interest will operate as an additional guard, as none of them could tell how soon they might have occasion for such a trial themselves. The greatest danger from ambition is in criminal cases. But here they have no option. The trial must be by jury, in the state wherein the offence is committed; and the writ of habeas corpus will in the mean time secure the citizen against arbitrary imprisonment, which has been the principal source of tyranny in all ages.
As to the clause respecting cases arising under the Constitution and the laws of the Union, which the honorable member objected to, it must be observed, that laws are useless unless they are executed. At present, Congress have powers which they cannot execute. After making laws which affect the dearest interest of the people, in the constitutional mode, they have no way of enforcing them. The situation of those gentlemen who have lately served in Congress must have been very disagreeable. Congress have power to enter into negotiations with foreign nations, but cannot compel the observance of treaties that they make. They have been much distressed by their inability to pay the pressing demands of the public creditors. They have been reduced so low as to borrow principal to pay interest. Such are the unfortunate consequences of this unhappy situation! These are the effects of the pernicious mode of requisitions! Has any state fully paid its quota? I believe not, sir. Yet I am far from thinking that this has been owing altogether to an unwillingness to pay the debts. It may have been in some instances the case, but I believe not in all. Our state legislature has no way of raising any considerable sums but by laying direct taxes. Other states have imports of consequence. These may afford them a considerable relief; but our state, perhaps, could not have raised its full quota by direct taxes, without imposing burdens too heavy for the people to bear. Suppose, in this situation, Congress had proceeded to enforce their requisitions, by sending an army to collect them; what would have been the consequence? Civil war,, in which the innocent must have suffered with the guilty. Those who were willing to pay would have been equally distressed with those who were unwilling. Requisitions thus having failed of their purpose, it is proposed, by this Constitution, that, instead of collecting taxes by the sword, application shall be made by the government to the individual citizens. If any individual disobeys, the courts of justice can give immediate relief. This is the only natural and effectual method of enforcing laws. As to the danger of concurrent jurisdictions, has any inconvenience resulted from the concurrent jurisdictions, in sundry cases, of the superior and county courts of this state? The inconvenience of attending at a great distance, which has been so much objected to, is one which would be so general, that there is no doubt but that a majority would always feel themselves and their constituents personally interested in preventing it. I have no doubt, therefore, that proper care will be taken to lessen this evil as much as possible; and, in particular, that an appeal to the Supreme Court will not be allowed but in cases of great importance, where the object may be adequate to the expense. The Supreme Court may possibly be directed to sit alternately in different parts of the Union.
The propriety of having a Supreme Court in every government must be obvious to every man of reflection. There can be no other way of securing the administration of justice uniformly in the several states. There might be, otherwise, as many different adjudications on the same subject as there are states. It is to be hoped that, if this government be established, connections still more intimate than the present will subsist between the different states. The same measure of justice, therefore, as to the objects of their common concern, ought to prevail in all. A man in North Carolina, for instance, if he owed £100 here, and was compellable to pay it in good money, ought to have the means of recovering the same sum, if due to him in Rhode Island, and not merely the nominal sum, at about an eighth or tenth part of its intrinsic value. To obviate such a grievance as this, the Constitution has provided a tribunal to administer equal justice to all.
A gentleman has said that the stamp act, and the taking away of the trial by jury, were the principal causes of resistance to Great Britain, and seemed to infer that opposition would therefore be justified on this part of the system. The stamp act was much earlier than the immediate cause of our independence. But what was the great ground of opposition to the stamp act? Surely it was because the act was not passed by our own representatives, but by those of Great Britain. Under this Constitution, taxes are to be imposed by our own representatives in the General Congress. The fewness of their numbers will be compensated by the weight and importance of their characters. Our representatives will be in proportion to those of the other states. This case is certainly not like that of taxation by a foreign legislature. In respect to the trial by jury, its being taken away, in certain cases, was, to be sure, one of the causes assigned in the Declaration of Independence. But that was done by a foreign legislature, which might continue it so forever; and therefore jealousy was justly excited. But this Constitution has not taken it away, and it is left to the discretion of our own legislature to act, in this respect, as their wisdom shall direct. In Great Britain, the people speak of the trial by jury with admiration. No monarch, or minister, however arbitrary in his principles, would dare to attack that noble palladium of liberty. The enthusiasm of the people in its favor would, in such a case, produce general resistance. That trial remains unimpaired there, although they have a considerable standing army, and their Parliament has authority to abolish it, if they please. But who to those who should attempt it! If it be secure in that country, under these circumstances, can we believe that Congress either would or could take it away in this? Were they to attempt it, their authority would be instantly resisted. They would draw down on themselves the resentment and detestation of the people. They and their families, so long as any remained in being, would be held in eternal infamy, and the attempt prove as unsuccessful as it was wicked.
With regard to a bill of rights, this is a notion originating in England, where no written constitution is to be found, and the authority of their government is derived from the most remote antiquity. Magna Charta itself is no constitution, but a solemn instrument ascertaining certain rights of individuals, by the legislature for the time being; and every article of which the legislature may at any time alter. This, and a bill of rights also, the invention of later times, were occasioned by great usurpations of the crown, contrary, as was conceived, to the principles of their government, about which there was a variety of opinions. But neither that instrument, nor any other instrument, ever attempted to abridge the authority of Parliament, which is supposed to be without any limitation whatever. Had their constitution been fixed and certain, a bill of rights would have been useless, for the constitution would have shown plainly the extent of that authority which they were disputing about. Of what use, therefore, can a bill of rights be in this Constitution, where the people expressly declare how much power they do give, and consequently retain all they do not? It is a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before, that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell? or could he, without absurdity, say, “‘Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other.” A bill of rights, as I conceive, would not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, “We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them.” Thus a bill of rights might operate as a snare rather than a protection. If we had formed a general legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American constitutions, where the powers of legislation are general. But where they are powers of a particular nature, and expressly defined, as in the case of the Constitution before us, I think, for the reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous.
Mr. J. M’DOWALL. Mr. Chairman, the learned gentleman made use of several arguments to induce us to believe that the trial by jury, in civil cases, was not in danger, and observed that, in criminal cases, it is provided that the trial is to be in the state where the crime was committed. Suppose a crime is committed at the Mississippi; the man may be tried at Edenton. They ought to be tried by the people of the vicinage; for when the trial is at such an immense distance, the principal privilege attending the trial by jury is taken away; therefore the trial ought to be limited to a district or certain part of the state. It has been said, by the gentleman from Edenton, that our representatives will have virtue and wisdom to regulate all these things. But it would give me much satisfaction, in a matter of this importance, to see it absolutely secured. The depravity of mankind militates against such a degree of confidence. I wish to see every thing fixed.
Gov. JOHNSTON. Mr. Chairman, the observations of the gentleman last up confirm what the other gentleman said. I mean that, as there are dissimilar modes with respect to the trial by jury in different states, there could be no general rule fixed to accommodate all. He says that this clause is defective, because the trial is not to be by a jury of the vicinage. Let us look at the state of Virginia, where, as long as I have known it, the laws have been executed so as to satisfy the inhabitants, and, I believe, as well as in any part of the Union. In that country, juries are summoned every day from the by-standers. We may expect less partiality when the trial is by strangers; and were I to be tried for my property or life, I would rather be tried by disinterested men, who were not biased, than by men who were perhaps intimate friends of my opponent. Our mode is different from theirs; but whether theirs be better than ours or not, is not the question. It would the improper for our delegates to impose our mode upon them, or for theirs to impose their mode upon us. The trial will probably be, in each state, as it has been hitherto used in such state, or otherwise regulated as conveniently as possible for the people. The delegates who are to meet in Congress will, I hope, be men of virtue and wisdom. If not, it will be our own fault. They will have it in their power to make necessary regulations to accommodate the inhabitants of each state. In the Constitution, the general principles only are laid down. It will be the object of the future legislation to Congress to make such laws as will be most convenient for the people. With regard to a bill of rights, so much spoken of, what the gentleman from Edenton has said, I hope, will obviate the objections against the want of it. In a monarchy, all power may be supposed to be vested in the monarch, except what may be reserved by a bill of rights. In England, in every instance where the rights of the people are not declared, the prerogative of the king is supposed to extend. But in this country, we say that what rights we do not give away remain with us.
Mr. BLOODWORTH. Mr. Chairman, the footing on which the trial by jury is, in the Constitution, does not satisfy me. Perhaps I am mistaken; but if I understand the thing right, the trial by jury is taken away. If the Supreme Federal Court has jurisdiction both as to law and fact, it appears to me to be taken away. The honorable gentleman who was in the Convention told us that the clause, as it now stands, resulted from the difficulty of fixing the mode of trial. I think it was easy to have put it on a secure footing. But, if the genius of the people of the United States is so dissimilar that our liberties cannot be secured, we can never hang long together. Interest is the band of social union; and when this is taken away, the Union itself’ must dissolve.
Mr. MACLAINE. Mr. Chairman, I do not take the interest of the states to be so dissimilar; I take them to be all nearly alike, and inseparably connected. It is impossible to lay down any constitutional rule for the government of all the different states in each particular. But it will be easy for the legislature to make laws to accommodate the people in every part of the Union, as circumstances may arise. Jury trial is not taken away in such cases where it may be found necessary. Although the Supreme Court has cognizance of the appeal, it does not follow but that the trial by jury may be had in the court below, and the testimony transmitted to the Supreme Court, who will then finally determine, on a review of all the circumstances. This is well known to be the practice in some of the states. In our own state, indeed, when a cause is instituted in the county court, and afterwards there is an appeal upon it, a new trial is had in the superior court, as if no trial had been had before. In other countries, however, when a trial is had in an inferior court, and an appeal is taken, no testimony can be given in the court above, but the court determines upon the circumstances appearing upon the record. If I am right, the plain inference is, that there may be a trial in the inferior courts, and that the record, including the testimony, may be sent to the Supreme Court. But if there is a necessity for a jury in the Supreme Court, it will be a very easy matter to empanel a jury at the bar of the Supreme Court, which may save great expense, and be very convenient to the people. It is impossible to make every regulation at once. Congress, who are our own representatives, will undoubtedly make such regulations as will suit the convenience and secure the liberty of the people.
Mr. IREDELL declared it as his opinion that there might be juries in the Superior Court as well as in the inferior courts, and that it was in the power of Congress to regulate it so.