Elliot’s Debates: Volume 4
Convention of North Carolina
Tuesday, July 29, 1788.
Mr. KENNION in the chair.
Mr. SPENCER. Mr. Chairman, I hope to be excused for making some observations on what was said yesterday, by gentlemen, in favor of these two clauses. The motion which was made that the committee should rise, precluded me from speaking then. The gentlemen have showed much moderation and candor in conducting this business; but I still think that my observations are well founded, and that some amendments are necessary. The gentleman said, all matters not given up by this form of government were retained by the respective states. I know that it ought to be so; it is the general doctrine, but it is necessary that it should be expressly declared in the Constitution, and not left to mere construction and opinion. I am authorized to say it was heretofore thought necessary. The Confederation says, expressly, that all that was not given up by the United States was retained by the respective states. If such a clause had been inserted in this Constitution, it would have superseded the necessity of a bill of rights. But that not being the case, it was necessary that a bill of rights, or something of that kind, should be a part of the Constitution. It was observed that, as the Constitution is to be a delegation of power from the several states to the United States. a bill of rights was unnecessary. But it will be noticed that this is a different case.
The states do not act in their political capacities, but the government is proposed for individuals. The very caption of the Constitution shows that this is the case. The expression, “We, the people of the United States,” shows that this government is intended for individuals; there ought, therefore, to be a bill of rights. I am ready to acknowledge that the Congress ought to have the power of executing its laws. Heretofore, because all the laws of the Confederation were binding on the states in their political capacities, courts had nothing to do with them; but now the thing is entirely different. The laws of Congress will be binding on individuals, and those things which concern individuals will be brought properly before the courts. In the next place, all the officers are to take an oath to carry into execution this general government, and are bound to support every act of the government, of whatever nature it may be. This is a fourth reason for securing the rights of individuals. It was also observed that the federal judiciary and the courts of the states, under the federal authority, would have concurrent jurisdiction with respect to any subject that might arise under the Constitution. I am ready to say that I most heartily wish that, whenever this government takes place, the two jurisdictions and the two governmentsthat is, the general and the several state governmentsmay go hand in hand, and that there may be no interference, but that every thing may be rightly conducted. But I will never concede that it is proper to divide the business between the two different courts. I have no doubt that there is wisdom enough in this state to decide the business, without the necessity of federal assistance to do our business. The worthy gentleman from Edenton dwelt a considerable time on the observations on a bill of rights, contending that they were proper only in monarchies, which were founded on different principles from those of our government; and, therefore, though they might be necessary for others, yet they were not necessary for us. I still think that a bill of rights is necessary. This necessity arises from the nature of human societies. When individuals enter into society, they give up some rights to secure the rest. There are certain human rights that ought not to be given up, and which ought in some manner to be secured. With respect to these great essential rights, no latitude ought to be left. They are the most inestimable gifts of the great Creator, and therefore ought not to be destroyed, but ought to be secured. They ought to be secured to individuals in consideration of the other rights which they give up to support society.
The trial by jury has been also spoken of Every person who is acquainted with the nature of liberty need not be informed of the importance of this trial. Juries are called the bulwarks of our rights and liberty; and no country can ever be enslaved as long as those cases which affect their lives and property are to be decided, in a great measure, by the consent of twelve honest, disinterested men, taken from the respectable body of yeomanry. It is highly improper that any clause which regards the security of the trial by jury should be any way doubtful. In the clause that has been read, it is ascertained that criminal cases are to be tried by jury in the states where they are committed. It has been objected to that clause, that it is not sufficiently explicit. I think that it is not. It was observed that one may be taken to a great distance. One reason of the resistance to the British government was, because they required that we should be carried to the country of Great Britain, to be tried by juries of that country. But we insisted on being tried by juries of the vicinage, in our own country. I think it therefore proper that something explicit should be said with respect to the vicinage.
With regard to that part, that the Supreme Court shall have appellate jurisdiction both as to law and fact, it has been observed that, though the federal court might decide without a jury, yet the court below, which tried it, might have a jury. I ask the gentleman what benefit would be received in the suit by having a jury trial in the court below, when the verdict is set aside in the Supreme Court. It was intended by this clause that the trial by jury should be suppressed in the superior and inferior courts. It has been said, in defence of the omission concerning the trial by jury in civil cases, that one general regulation could not be made; that in several cases the constitution of several states did not require a trial by jury,for instance, in cases of equity and admiralty,whereas in others it did, and that, therefore, it was proper to leave this subject at large. I am sure that, for the security of liberty, they ought to have been at the pains of drawing some line. I think that the respectable body who formed the Constitution should have gone so far as to put matters on such a footing as that there should no danger. They might have provided that all those cases which are now triable by a jury should be tried in each state by a jury, according to the mode usually practised in such state. This would have been easily done, if they had been at the trouble of writing five or six lines. Had it been done, we should have been entitled to say that our rights and liberties were not endangered. If we adopt this clause as it is, I think, notwithstanding what gentlemen have said, that there will be danger. There ought to be some amendments to it, to put this matter on a sure footing. There does not appear to me to be any kind of necessity that the federal court should have jurisdiction in the body of the country. I am ready to give up that, in the cases expressly enumerated, an appellate jurisdiction (except in one or two instances) might be given. I wish them also to have jurisdiction in maritime affairs, and to try offences committed on the high seas. But in the body of a state, the jurisdiction of the courts in that state might extend to carrying into execution the laws of Congress. It must be unnecessary for the federal courts to do it, and would create trouble and expense which might be avoided. In all cases where appeals are proper, I will agree that it is necessary there should be one Supreme Court. Were those things properly regulated, so that the Supreme Court might not be oppressive, I should have no objection to it.
Mr. DAVIE. Mr. Chairman, yesterday and to-day I have given particular attention to the observations of the gentleman last up. I believe, however, that, before we take into consideration these important clauses, it will be necessary to consider in what manner laws can be executed. For my own part, I know but two ways in which the laws can be executed by any government. If there be any other, it is unknown to me. The first mode is coercion by military force, and the second is coercion through the judiciary. With respect to coercion by force, I shall suppose that it is so extremely repugnant to the principles of justice and the feelings of a free people, that no man will support it. It must, in the end, terminate in the destruction of the liberty of the people. I take it, therefore, that there is no rational way of enforcing the laws but by the instrumentality of the judiciary. From these premises we are left only to consider how far the jurisdiction of the judiciary ought to extend. It appears to the that the judiciary ought to be competent to the decision of any question arising out of the Constitution itself. On a review of the principles of all free governments, it seems to me also necessary that the judicial power should be coëxtensive with the legislative.
It is necessary in all governments, but particularly in a federal government, that its judiciary should be competent to the decision of all questions arising out of the constitution. If I understand the gentleman right, his objection was not to the defined jurisdiction, but to the general jurisdiction, which is expressed thus: “The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;” and also the appellate jurisdiction in some instances. Every member who has read the Constitution with attention must observe that there are certain fundamental principles in it, both of a positive and negative nature, which, being intended for the general advantage of the community, ought not to be violated by any future legislation of the particular states. Every member will agree that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to disregarded or violated. Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened. There are certain prohibitory provisions in this Constitution, the wisdom and propriety of which must strike every reflecting mind, and certainly meet with the warmest approbation of every citizen of this state. It provides, “that no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; that no preference shall be given, by any regulation of commerce or revenue, to the ports of one state over those of another; and that no state shall emit bills of credit, make any thing but gold and silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” These restrictions ought to supersede the laws of particular states. With respect to the prohibitory provisionthat no duty or impost shall be laid by any particular statewhich is so highly in favor of us and the other non-importing states, the importing states might make laws laying duties notwithstanding, and the Constitution might be violated with impunity, if there were no power in the general government to correct and counteract such laws. This great object can only be safely and completely obtained by the instrumentality of the federal judiciary. Would not Virginia, who has raised many thousand pounds out of our citizens by her imposts, still avail herself of the same advantage if there were no constitutional power to counteract her regulations? If cases arising under the Constitution were left to her own courts, might she not still continue the same practices? But we are now to look for justice to the controlling power of the judiciary of the United States. If the Virginians were to continue to oppress us by laying duties, we can be relieved by a recurrence to the general judiciary. This restriction in the Constitution is a fundamental principle, which is not to be violated, but which would have been a dead letter, were there no judiciary constituted to enforce obedience to it. Paper money and private contracts were in the same condition. Without a general controlling judiciary, laws might be made in particular states to enable its citizens to defraud the citizens of other states, Is it probable, if a citizen of South Carolina owed a sum of money to a citizen of this state, that the latter would be certain of recovering the full value in their courts? That state might in future, as they have already done, make pine-barren acts to discharge their debts. They might say that our citizens should be paid in sterile, inarable lands, at an extravagant price. They might pass the most iniquitous instalment laws, procrastinating the payment of debts due from their citizens, for yearsnay, for ages. Is it probable that we should get justice from their own judiciary, who might consider themselves obliged to obey the laws of their own state? Where, then, are we to look for justice? To the judiciary of the United States. Gentlemen must have observed the contracted and narrow-minded regulations of the individual states, and their predominant disposition to advance the interests of their own citizens to the prejudice of others. Will not these evils be continued if there be no restraint? The people of the United States have one common interest; they are all members of the same community, and ought to have justice administered to them equally in every part of the continent, in the same manner, with the same despatch, and on the same principles. It is therefore absolutely necessary that the judiciary of the Union should have jurisdiction in all cases arising in law and equity under the Constitution. Surely there should be somewhere a constitutional authority for carrying into execution constitutional provisions: otherwise, as I have already said, they would be a dead letter.
With respect to their having jurisdiction of all cases arising under the laws of the United States, although I have a very high respect for the gentleman, I heard his objection to it with surprise. I thought, if there were any political axiom under the sun, it must be, that the judicial power ought to be coëxtensive with the legislative. The federal government ought to possess the means of carrying the laws into execution. This position will not be disputed. A government would be a felo de se to put the execution of its laws under the control of any other body. If laws are not to be carried into execution by the interposition of the judiciary, how is it to be done?
I have already observed that the mind of every honest man, who has any feeling for the happiness of his country, must have the highest repugnance to the idea of military coercion. The only means, then, of enforcing obedience to the legislative authority must be through the medium of the officers of peace. Did the gentleman carry his objection to the extension of the judicial power to treaties? It is another principle, which I imagine will not be controverted, that the general judiciary ought to be competent to the decision of all questions which involve the general welfare or peace of the Union. It was necessary that treaties should operate as laws upon individuals. They ought to be binding upon us the moment they are made. They involve in their nature not only our own rights, but those of foreigners. If the rights of foreigners were left to be decided ultimately by thirteen distinct judiciaries, there would necessarily be unjust and contradictory decisions. If our courts of justice did not decide in favor of foreign citizens and subjects when they ought, it might involve the whole Union in a war: there ought, therefore, to be a paramount tribunal, which should have ample power to carry them into effect. To the decision of all causes which might involve the peace of the Union may be referred, also, that of controversies between the citizens or subjects of foreign states and the citizens of the United States. It has been laid down by all writers that the denial of justice is one of the just causes of war. If these controversies were left to the decision of particular states, it would be in their power, at any time, to involve the continent in a war, usually the greatest of all national calamities. It is certainly clear that where the peace of the Union is affected, the general judiciary ought to decide. It has generally been given up, that all cases of admiralty and maritime jurisdiction should also be determined by them. It has been equally ceded, by the strongest opposers to this government, that the federal courts should have cognizance of controversies between two or more states, between a state and the citizens of another state, and between the citizens of the same state claiming lands under the grant of different states. Its jurisdiction in these cases is necessary to secure impartiality in decisions, and preserve tranquillity among the states. It is impossible that there should be impartiality when a party affected is to be judge.
The security of impartiality is the principal reason for giving up the ultimate decision of controversies between citizens of different states. It is essential to the interest of agriculture and commerce that the hands of the states should be bound from making paper money, instalment laws, or pine-barren acts. By such iniquitous laws the merchant or farmer may be defrauded of a considerable part of his just claims. But in the federal court, real money will be recovered with that speed which is necessary to accommodate the circumstances of individuals. The tedious delays of judicial proceedings, at present, in some states, are ruinous to creditors. In Virginia, many suits are twenty or thirty years spun out by legal ingenuity, and the defective construction of their judiciary. A citizen of Massachusetts or this country might be ruined before he could recover a debt in that state. It is necessary, therefore, in order to obtain justice, that we recur to the judiciary of the United States, where justice must be equally administered, and where a debt may be recovered from the citizen of one state as soon as from the citizen of another.
As to a bill of rights, which has been brought forward in a manner I cannot account for, it is unnecessary to say any thing. The learned gentleman has said that, by a concurrent jurisdiction, the laws of the United States must necessarily clash with the laws of the individual states, in consequence of which the laws of the states will be obstructed, and the state governments absorbed. This cannot be the case. There is not one instance of a power given to the United States, whereby the internal policy or administration of the states is affected. There is no instance that can be pointed out wherein the internal policy of the state can be affected by the judiciary of the United States. He mentioned impost laws. It has been given up, on all hands, that, if there was a necessity of a federal court, it was on this account. Money is difficult to be got into the treasury. The power of the judiciary to enforce the federal laws is necessary to facilitate the collection of the public revenues. It is well known, in this state, with what reluctance and backwardness collectors pay up the public moneys. We have been making laws after laws to remedy this evil, and still find them ineffectual. Is it not, therefore, necessary to enable the general government to compel the delinquent receivers to be punctual? The honorable gentleman admits that the general government ought to legislate upon individuals, instead of states.
Its laws will otherwise be ineffectual, but particularly with respect to treaties. We have seen with what little ceremony the states violated the peace with Great Britain. Congress had no power to enforce its observance. The same cause will produce the same effect. We need not flatter ourselves that similar violations will always meet with equal impunity. I think he must be of opinion, upon reflection, that the jurisdiction of the federal judiciary could not have been constructed otherwise with safety or propriety. It is necessary that the Constitution should be carried into effect, that the laws should be executed, justice equally done to all the community, and treaties observed. These ends can only be accomplished by a general, paramount judiciary. These are my sentiments, and if the honorable gentleman will prove them erroneous, I shall readily adopt his opinions.
Mr. MACLAINE. Mr. Chairman, I beg leave to make a few observations. One of the gentleman’s objections to the Constitution now under consideration is, that it is not the act of the states, but of the people; but that it ought to be the act of the states; and he instances the delegation of power by the states to the Confederation, at the commencement of the war, as a proof of this position. I hope, sir, that all power is in the people, and not in the state governments. If he will not deny the authority of the people to delegate power to agents, and to devise such a government as a majority of them thinks will promote their happiness, he will withdraw his objection. The people, sir, are the only proper authority to form a government. They, sir, have formed their state governments, and can alter them at pleasure. Their transcendent power is competent to form this or any other government which they think promotive of their happiness. But the gentleman contends that there ought to be a bill of rights, or something of that kindsomething declaring expressly, that all power not expressly given to the Constitution ought to be retained by the states; and he produces the Confederation as an authority for its necessity. When the Confederation was made, we were by no means so well acquainted with the principles of government as we are now. We were then jealous of the power of our rulers, and had an idea of the British government when we entertained that jealousy. There is no people on earth so well acquainted with the nature of government as the people of America generally are. We know now that it is agreed upon by most writers, and men of judgment and reflection, that all power is in the people, and immediately derived from them. The gentleman surely must know that, if there be certain rights which never can, nor ought to, be given up, these rights cannot be said to be given away, merely because we have omitted to say that we have not given them up. Can any security arise from declaring that we have a right to what belongs to us? Where is the necessity of such a declaration? If we have this inherent, this unalienable, this indefeasible title to those rights, if they are not given up, are they not retained? If Congress should make a law beyond the powers and the spirit of the Constitution, should we not say to Congress, “You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt.”
But the gentleman seems to be most tenacious of the judicial power of the states. The honorable gentleman must know, that the doctrine of reservation of power not relinquished, clearly demonstrates that the judicial power of the states is not impaired. He asks, with respect to the trial by jury, “When the cause has gone up to the superior court, and the verdict is set aside, what benefit arises froth having had a jury trial in the inferior court?” I would ask the gentleman, “What is the reason, that, on a special verdict or case agreed, the decision is left to the court?” There are a number of cases where juries cannot decide. When a jury finds the fact specially, or when it is agreed upon by the parties, the decision is referred to the court. If the law be against the party, the court decides against him; if the law be for him, the court judges accordingly. He, as well as every gentleman here, must know that, under the Confederation, Congress set aside juries. There was an appeal given to Congress: did Congress determine by a jury? Every party carried his testimony in writing: to the judges of appeal, and Congress determined upon it.
The distinction between matters of law and of fact has not been sufficiently understood, or has been intentionally misrepresented. On a demurrer in law, in which the facts are agreed upon by the parties, the law arising thereupon is referred to the court. An inferior court may give an erroneous judgment; an appeal may be had from this court to the Supreme Federal Court, and a right decision had. This is an instance wherein it can have cognizance of matter of law solely. In cases where the existence of facts has been first disputed by one of the parties, and afterwards established as in a special verdict, the consideration of these facts, blended with the law, is left to the court. In such cases, inferior courts may decide contrary to justice and law, and appeals may be had to the Supreme Court. This is an instance wherein it may be said they have jurisdiction both as to law and fact. But where facts only are disputed, and where they are once established by a verdict, the opinion of the judges of the Supreme Court cannot, I conceive, set aside these facts; for I do not think they have the power so to do by this Constitution.
The federal court has jurisdiction only in some instances. There are many instances in which no court but the state courts can have any jurisdiction whatsoever, except where parties claim land under the grant of different states, or the subject of dispute arises under the Constitution itself. The state courts have exclusive jurisdiction over every other possible controversy that can arise between the inhabitants of their own states; nor can the federal courts intermeddle with such disputes, either originally or by appeal. There is a number of other instances, where, though jurisdiction is given to the federal court, it is not taken away from the state courts. If a man in South Carolina owes me money, I can bring suit in the courts of that state, as well as in any inferior federal court. I think gentlemen cannot but see the propriety of leaving to the general government the regulation of the inferior federal tribunals. This is a power which our own state legislature has. We may trust Congress as well as them.
Mr. SPENCER answered, that the gentleman last up had misunderstood him. He did not object to the caption of the Constitution, but he instanced it to show that the United States were not, merely as states, the objects of the Constitution; but that the laws of Congress were to operate upon individuals, and not upon states. He then continued: I do not mean to contend that the laws of the general government should not operate upon individuals. I before observed that this was necessary, as laws could not be put in execution against states without the agency of the sword, which, instead of answering the ends of government, would destroy it. I endeavored to show that, as the government was not to operate against states, but against individuals, the rights of individuals ought to be properly secured. In order to constitute this security, it appears to me there ought to be such a clause in the Constitution as there was in the Confederation, expressly declaring, that every power, jurisdiction, and right, which are not given up by it, remain in the states. Such a clause would render a bill of rights unnecessary. But as there is no such clause, I contend that there should be a bill of rights, ascertaining and securing the great rights of the states and people. Besides my objection to the revision of facts by the federal court, and the insecurity of jury trial, I consider the concurrent jurisdiction of those courts with the state courts as extremely dangerous. It must be obvious to every one that, if they have such a concurrent jurisdiction, they must in time take away the business from the state courts entirely. I do not deny the propriety of having federal courts; but they should be confined to federal business, and ought not to interfere in those cases where the state courts are fully competent to decide. The state courts can do their business without federal assistance. I do not know how far any gentleman may suppose that I may, from my office, be biased in favor of the state jurisdiction. I am no more interested than any other individual. I do not think it will affect the respectable office which I hold. Those courts will not take place immediately, and even when they do, it will be a long time before their concurrent jurisdiction will materially affect the state judiciaries. I therefore consider myself as disinterested. I only wish to have the government so constructed as to promote the happiness, harmony, and liberty, of every individual at home, and render us respectable as a nation abroad. I wish the question to be decided coolly and calmly with moderation, candor, and deliberation.
Mr. MACLAINE replied, that the gentleman’s objections to the want of a bill of rights had been sufficiently answered; that the federal jurisdiction was well guarded, and that the federal courts had not, in his opinion, cognizance, in any one case, where it Could be alone vested in the state judiciaries with propriety or safety. The gentleman, he said, had acknowledged that the laws of the Union could not be executed under the existing government; and yet he objected to the federal judiciary’s having cognizance of such laws, though it was the only probable means whereby they could be enforced. The treaty of peace with Great Britain was the supreme law of the land; yet it was disregarded, for want of a federal judiciary. The state judiciaries did not enforce an observance of it. The state courts were highly improper to be intrusted with the execution of the federal laws, as they were bound to judge according to the state laws, which might be repugnant to those of the Union.
Mr. IREDELL. Mr. Chairman, I beg leave to make a few observations on some remarks that have been made on this part of the Constitution. The honorable gentleman said that it was very extraordinary that the Convention should not have taken the trouble to make an addition of five or six lines, to secure the trial by jury in civil cases. Sir, if by the addition, not only of five or six lines, but of five or six hundred lines, this invaluable object could have been secured, I should have thought the Convention criminal in omitting it; and instead of meriting the thanks of their country, as I think they do now, they might justly have met with its resentment and indignation. I am persuaded the omission arose from the real difficulty of the case. The gentleman says that a mode might have been provided, whereby the trial by jury might have been secured satisfactorily to all the states. I call on him to show that mode. I know of none; nor do I think it possible for any man to devise one to which some states would not have objected. It is said, indeed, that it might have been provided that it should be as it had been heretofore. Had this been the case, surely it would have been highly incongruous.
The trial by jury is different in different states. It is regulated in one way in the state of North Carolina, and in another way in the state of Virginia. It is established in a different way from either in several other states. Had it, then, been inserted in the Constitution, that the trial by jury should be as it had been heretofore, there would have been an example, for the first time in the world, of a judiciary belonging to the same government being different in different parts of the same country. What would you think of an act of Assembly which should require the trial by jury to be had in one mode in the county of Orange, and in another mode in Granville, and in a manner different from both in Chatham? Such an act of Assembly, so manifestly injudicious, impolitic, and unjust, would be repealed next year.
But what would you say of our Constitution, if it authorized such an absurdity? The mischief, then, could not be removed without altering the Constitution itself. It must be evident, therefore, that the addition contended for would not have answered the purpose. If the method of any particular state had been established, it would have been objected to by others, because, whatever inconveniences it might have been attended with, nothing but a change in the Constitution itself could have removed them; whereas, as it is now, if any mode established by Congress is found inconvenient, it can easily be altered by a single act of legislation. Let any gentleman consider the difficulties in which the Convention was placed. A union was absolutely necessary. Every thing could be agreed upon except the regulation of the trial by jury in civil cases. They were all anxious to establish it on the best footing, but found they could fix upon no permanent rule that was not liable to great objections and difficulties. If they could not agree among themselves, they had still less reason to believe that all the states would have unanimously agreed to any one plan that could be proposed. They, therefore, thought it better to leave all such regulations to the legislature itself, conceiving there could be no real danger, in this case, from a body composed of our own representatives, who could have no temptation to undermine this excellent mode of trial in civil cases, and who would have, indeed, a personal interest, in common with others, in making the administration of justice between man and man secure and easy.
In criminal cases, however, no latitude ought to be allowed. In these the greatest danger from any government subsists; and accordingly it is provided that there shall be a trial by jury, in all such cases, in the state wherein the offence is committed. I thought the objection against the want of a bill of rights had been obviated unanswerably. It appears to me most extraordinary. Shall we give up any thing hut what is positively granted by that instrument? It would be the greatest absurdity for any man to pretend that, when a legislature is formed for a particular purpose, it can have any authority but what is so expressly given to it, any more than a man acting under a power of attorney could depart from the authority it conveyed to him, according to an instance which I stated when speaking on the subject before. As for example: if I had three tracts of land, one in Orange, another in Caswell, and another in Chatham, and I gave a power of attorney to a man to sell the two tracts in Orange and Caswell, and he should attempt to sell my land in Chatham, would any man of common sense suppose he had authority to do so? In like manner, I say, the future Congress can have no right to exercise any power but what is contained in that paper. Negative words, in my opinion, could make the matter no plainer than it was before. The gentleman says that unalienable rights ought not to be given up. Those rights which are unalienable are not alienated. They still remain with the great body of the people. If any right be given up that ought not to be, let it be shown. Say it is a thing which affects your country, and that it ought not to be surrendered: this would be reasonable. But when it is evident that the exercise of any power not given up would be a usurpation, it would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.
Mr. BLOODWORTH. Mr. Chairman, I have listened with attention to the gentleman’s arguments; but whether it be for want of sufficient attention, or from the grossness of my ideas, I cannot be satisfied with his defence of the omission, with respect to the trial by jury. He says that it would be impossible to fall on any satisfactory mode of regulating the trial by jury, because there are various customs relative to it in the different states. Is this a satisfactory cause for the omission? Why did it not provide that the trial by jury should be preserved in civil cases? It has said that the trial should be by jury in criminal cases; and yet this trial is different in its manner in criminal cases in the different states. If it has been possible to secure it in criminal cases, notwithstanding the diversity concerning it, why has it not been possible to secure it in civil cases? I wish this to be cleared up. By its not being provided for, it is expressly provided against. I still see the necessity of a bill of rights. Gentlemen use contradictory arguments on this subject, if I recollect right. Without the most express restrictions, Congress may trample on your rights. Every possible precaution should be taken when we grant powers. Rulers are always disposed to abuse them. I beg leave to call gentlemen’s recollection to what happened under our Confederation. By it, nine states are required to make a treaty; yet seven states said that they could, with propriety, repeal part of the instructions given our secretary for foreign affairs, which prohibited him from making a treaty to give up the Mississippi to Spain, by which repeal the rest of his instructions enabled him to make such treaty. Seven states actually did repeal the prohibitory part of these instructions, and they insisted it was legal and proper. This was in fact a violation of the Confederation. If gentlemen thus put what construction they please upon words, how shall we be redressed, if Congress shall say that all that is not expressed is given up, and they assume a power which is expressly inconsistent with the rights of mankind? Where is the power to pretend to deny its legality? This has occurred to me, and I wish it to be explained.
Mr. SPENCER. Mr. Chairman, the gentleman expresses admiration as to what we object with respect to a bill of rights, and insists that what is not given up in the Constitution is retained. He must recollect I said, yesterday, that we could not guard with too much care those essential rights and liberties which ought never to be given up. There is no express negative no fence against their being trampled upon. They might exceed the proper boundary without being taken notice of. When there is no rule but a vague doctrine, they might make great strides, and get possession of so much power that a general insurrection of the people would be necessary to bring an alteration about. But if a boundary were set up, when the boundary is passed, the people would take notice of it immediately. These are the observations which I made; and I have no doubt that, when he reflects, he will acknowledge the necessity of it. I acknowledge, however, that the doctrine is right; but if that Constitution is not satisfactory to the people, I would have a bill of rights, or something of that kind, to satisfy them.
Mr. LOCKE. Mr. Chairman, I wish to throw some particular light upon the subject, according to my conceptions, I think the Constitution neither safe nor beneficial, as it grants powers unbounded with restrictions. One gentleman has said that it was necessary to give cognizance of causes to the federal court, because there was partiality in the judges of the states; that the state judges could not be depended upon in causes arising under the Constitution and laws of the Union, I agree that impartiality in judges is indispensable; but I think this alteration will not produce more impartiality than there is now in our courts, whatever evils it may bring forth. Must there not be judges in the federal courts, and those judges taken from some of the states? The same partiality, therefore, may be in them. For my part, I think it derogatory to the honor of this state to give this jurisdiction to the federal courts. It must be supposed that the same passions, dispositions, and failings of humanity which attend the state judges, will be equally the lot of the federal judges. To justify giving this cognizance to those courts, it must be supposed that all justice and equity are given up at once in the states. Such reasoning is very strange to me. I fear greatly for this state, and for other states. I find there has a considerable stress been laid upon the injustice of laws made heretofore. Great reflections are thrown on South Carolina for passing pine-barren and instalment laws, and on this state for making paper money. I wish those gentlemen who made those observations would consider the necessity which compelled us in a great measure to make such money. I never thought the law which authorized it a good law. If the evil could have been avoided, it would have been a very bad law; but necessity, sir, justified it in some degree. I believe I have gained as little by it as any in this house. If we are to judge of the future by what we have seen, we shall find as much or more injustice in Congress than in our legislature. Necessity compelled them to pass the law, in order to save vast numbers of people from ruin. I hope to be excused in observing that it would have been hard for our late Continental army to lay down their arms, with which they had valiantly and successfully fought for their country, without receiving or being promised and assured of some compensation for their past services. What a situation would this country have been in, if they had had the power over the purse and sword! If they had the powers given up by this Constitution, what a wretched situation would this country have been in! Congress was unable to pay them, but passed many resolutions and laws in their favor, particularly one that each state should make up the depreciation of the pay of the Continental line, who were distressed for the want of an adequate compensation for their services. This state could not pay her proportion in specie. To have laid a tax for that purpose would have been oppressive. What was to be done? The only expedient was to pass a law to make paper money, and make it a tender. The Continental line was satisfied, and approved of the measure, it being done at their instance in some degree. Notwithstanding it was supposed to be highly beneficial to the state, it is found to be injurious to it. Saving expense is a very great object, but this incurred much expense. This subject has for many years embroiled the state; but the situation of the country, and the distress of the people are so great, that the public measures must be accommodated to their circumstances with peculiar delicacy and caution, or another insurrection may be the consequence. As to what the gentleman said of the trial by jury, it surprises me much to hear gentlemen of such great abilities speak such language. It is clearly insecure, nor can ingenuity and subtle arguments prove the contrary. I trust this country is too sensible of the value of liberty, and her citizens have bought it too dearly, to give it up hastily.
Mr. IREDELL. Mr. Chairman, I hope some other gentleman will answer what has been said by the gentlemen who have spoken last. I only rise to answer the question of the member from New Hanover which was, if there was such a difficulty, in establishing the trial by jury in civil cases, that the Convention could not concur in any mode, why the difficulty did not extend to criminal cases? I beg leave to say, that the difficulty, in this case, does not depend so much on the mode of proceedings, as on the difference of the subjects of controversy, and the laws relative to them. In some states, there are no juries in admiralty and equity cases. In other states, there are juries in such cases. In some states, there are no distinct courts of equity, though in most states there are. I believe that, if a uniform rule had been fixed by the Constitution, it would have displeased some states so far that they would have rejected the Constitution altogether. Had it been declared generally, as the gentleman mentioned, it would have included equity and maritime cases, and created a necessity of deciding them in a manner different from that in which they have been decided heretofore in many of the states, which would very probably have met with the disapprobation of those states.
We have been told, and I believe this was the real reason, why they could not concur in any general rule. I have great respect for the characters of those gentlemen who formed the Convention, and I believe the were not ca able overlooking the importance of the trial by jury, much less of designedly plotting against it. But I fully believe that the real difficulty of the thing was the cause of the omission. I trust sufficient reasons have been offered, to show that it is in no danger. As to criminal cases, I must observe that the great instrument of arbitrary power is criminal prosecutions. By the privileges of the habeas corpus, no man can be confined without inquiry; and if it should appear that he has been committed contrary to law, he must be discharged. That diversity which is to be found in civil controversies, does not exist in criminal cases. That diversity which contributes to the security of property in civil eases, would have pernicious effects in criminal ones. There is no other safe mode to try these but by a jury. If any man had the means of trying another his own way, or were it left to the control of arbitrary judges, no man would have that security for life and liberty which every freeman ought to have. I presume that in no state on the continent is a man tried on a criminal accusation but by a jury. It was necessary, therefore, that it should be fixed, in the Constitution, that the trial should be by jury in criminal eases; and such difficulties did not occur in this as in the other case. The worthy gentleman says, that by not being provided for in civil cases, it is expressly provided against, and that what is not expressed is given up. Were it so, no man would be more against this Constitution than myself. I should detest and oppose it as much as any man. But, sir, this cannot be the ease. I beg leave to say that that construction appears to me absurd and unnatural. As it could not be fixed either on the principles of uniformity or diversity, it must be left to Congress to modify it. If they establish it in any manner by law, and find it inconvenient, they can alter it. But I am convinced that a majority of the representatives of the people will never attempt to establish a mode oppressive to their constituents, as it will be their own interest to take care of this right. But it is observed that there ought to be a fence provided against future encroachments of power. If there be not such a fence, it is a cause of objection. I readily agree that there ought to be such a fence. The instrument ought to contain such a definition of authority as would leave no doubt; and if there be any ambiguity, it ought not to be admitted. He says this construction is not agreeable to the people, though he acknowledges it is a right one. In my opinion, there is no man, of any reason at all, but must be satisfied with so clear and plain a definition. If the Congress should claim any power not given them, it would he as bare a usurpation as making a king in America. If this Constitution be adopted, it must be presumed the instrument will be in the hands of every man in America, to see whether authority be usurped; and any person by inspecting it may see if the power claimed be enumerated. If it be not, he will know it to be a usurpation.
Mr. MACLAINE. Mr. Chairman, a gentleman lately up (Mr. Locke) has informed us of his doubts and fears respecting the federal courts. He is afraid for this state and other states. He supposes that the idea of cognizance of the laws of the Union to federal courts, must have arisen from suspicions of partiality and want of common integrity in our state judges. The worthy gentleman is mistaken in his construction of what I said. I did not personally reflect on the members of our state judiciary; nor did I impute the impropriety of vesting the state judiciaries with exclusive jurisdiction over the laws of the Union, and cases arising under the Constitution, to any want of probity in the judges. But if they be the judges of the local or state laws, and receive emoluments for acting in that capacity, they will be improper persons to judge of the laws of the Union. A federal judge ought to be solely governed by the laws of the United States, and receive his salary from the treasury of the United States. It is impossible for any judges, receiving pay from a single state, to be impartial in cases where the local laws or interests of that state clash with the laws of the Union, or the general interests of America. We have instances here which prove this partiality in such cases. It is also so in other states. The gentleman has thrown out something very uncommon. He likens the power given by this Constitution to giving the late army the purse and the sword. I am much astonished that such an idea should be thrown out by that gentleman, because his respectability is well known. If he considers for a moment, he must see that his observation is bad, and that the comparison is extremely absurd and improper. The purse and the sword must be given to every government. The sword is given to the executive magistrate; but the purse remains, by this Constitution, in the representatives of the people. We know very well that they cannot raise one shilling but by the consent of the representatives of the people. Money bills do not even originate in the Senate; they originate solely in the other house. Every appropriation must be by law. We know, therefore, that no executive magistrate or officer can appropriate a shilling, but as he is authorized by law. With respect to paper money, the gentleman has acted and spoken with great candor. He was against paper money from the first emission. There was no other way to satisfy the late army but by paper money, there being not a shilling of specie in the state. There were other modes adopted by other states, which did not produce such inconveniences. There was, however, a considerable majority of that assembly who adopted the idea, that not one shilling more paper money should be made, because of the evil consequences that must necessarily follow. The experience of this country, for many years, has proved that such emissions involve us in debts and distresses, destroy our credit, and produce no good consequences; and yet, contrary to all good policy, the evil was repeated.
With respect to our public security and paper money, the apprehensions of gentlemen are groundless. I believe this Constitution cannot affect them at all. In the 10th section of the 1st article, it is provided, among other restrictions, “that no state shall emit bills of credit, make any thing but gold and silver coin a tender in payment of debts, or pass any law impairing the obligation of contracts.” Now, sir, this has no retrospective view. It looks to futurity. It is conceived by many people, that the moment this new Constitution is adopted, our present paper money will sink to nothing. For my part, I believe that, instead of sinking, it will appreciate. If we adopt, it will rise in value, so that twenty shillings of it will be equal to two Spanish milled dollars and a half. Paper money is as good as gold and silver where there are proper funds to redeem it, and no danger of its being increased. Before the late war, our paper money fluctuated in value. Thirty-six years ago, when I came into this country, our paper money was at seven shillings to the dollar. A few years before the late war, the merchants of Great Britain remonstrated to the ministry of that country, that they lost much of their debts by paper money losing its value. This caused an order to be made through all the states not to pass any money bills whatever. The effect of this was, that our paper money appreciated. At the commencement of the war, our paper money in circulation was equal to gold or silver. But it is said that, on adoption, all debts contracted heretofore must then be paid in gold or silver coin. I believe that, if any gentleman will attend to the clause above recited, he will find that it has no retrospective, hut a prospective view. It does not look back, but forward. It does not destroy the paper money which is now actually made, but prevents us from making any more. This is much in our favor, because we may pay in the money we contracted for, (or such as is equal in value to it;) and the very restriction against an increase of it will add to its value. It is in the power of the legislature to establish a scale of depreciation, to fix the value of it. There is nothing against this in the Constitution. On the contrary, it favors it. I should be much injured if it was really to be the case that the paper money should sink. After the Constitution was adopted, I should think myself, as a holder of our paper money, possessed of Continental security. I am convinced our money will be good money; and if I was to speculate in any thing, I would in paper money, though I never did speculate. I should be satisfied that I should make a profit, Why say that the state security will be paid in gold and silver after all these things are considered? Every real, actual debt of the state ought to be discharged in real and not nominal value, at any rate.
Mr. BASS took a general view of the original and appellate jurisdiction of the federal court. He considered the Constitution neither necessary nor proper. He declared that the last part of the 1st paragraph of the 2d section appeared to him totally inexplicable. He feared that dreadful oppression would be committed by carrying people too great a distance to decide trivial causes. He observed that gentlemen of the law and men of learning did not concur in the explanation or meaning of this Constitution. For his part, he said, he could not understand it, although he took great pains to find out its meaning, and although he flattered himself with the possession of common sense and reason. He always thought that there ought to be a compact between the governors and governed. Some called this a compact; others said it was not. From the contrariety of opinions, he thought the thing was either uncommonly difficult, or absolutely unintelligible. He wished to reflect on no gentleman, and apologized for his ignorance, by observing that he never went to school, and had been born blind; but he wished for information, and supposed that every gentleman would consider his desire as laudable.
Mr. MACLAINE first, and then Mr. IREDELL, endeavored to satisfy the gentleman, by a particular explanation of the whole paragraph. It was observed that, if there should be a controversy between this state and the king of France or Spain, it must be decided in the federal court. Or if there should arise a controversy between the French king, or any other foreign power, or one of their subjects or citizens, and one of our citizens, it must be decided there also. The distinction between the words citizen and subject was explainedthat the former related to individuals of popular governments, the latter to those of monarchies; as, for instance, a dispute between this state, or a citizen of it, and a person in Holland. The words foreign citizen would properly refer to such persons. If the dispute was between this state and a person in France or Spain, the words foreign subject would apply to this; and all such controversies might be decided in the federal courtthat the words citizens or subjects, in that part of the clause, could only apply to foreign citizens or foreign subjects; and another part of the constitution made this plain, by confining disputes, in general, between citizens of the same state, to the single case of their claiming lands under grants of different states.
The last clause of the 2d section under consideration.
Mr. MACLAINE. Mr. Chairman, an objection was made yesterday by a gentleman against this clause, because it confined the trial to the state; and he observed that a person on the Mississippi might be tried in Edenton.
Gentlemen ought to consider that it was impossible for the Convention, when devising a general rule for all the states, to descend to particular districts. The trial by jury is secured generally, by providing that the trial shall be in the state where the crime was committed. It is left to Congress to make such regulations, by law, as will suit the circumstances of each state. It would have been impolitic to fix the mode of proceeding, because it would alter the present mode of proceedings in such cases, in this state, or in several others; for there is such a dissimilarity in the proceedings of different states, that it would be impossible to make a general law which would he satisfactory to the whole; But as the trial is to be in the state, there is no doubt but it will be the usual and common mode practised in the state.
3d section read without any observation.
Article 4th. The 1st section, and two first clauses of the 2d section, read without observation.
The last clause read.
Mr. IREDELL begged leave to explain the reason of this clause. In some of the Northern States they have emancipated all their slaves. If any of our slaves, said he, go there, and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the Southern States; and to prevent it, this clause is inserted in the Constitution. Though the word slave is not mentioned, this is the meaning of it. The northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.
The rest of the 4th article read without any observation.
Mr. IREDELL. Mr. Chairman, this is a very important clause. In every other constitution of government that I have ever heard or read of, no provision is made for necessary amendments. The misfortune attending most constitutions which have been deliberately formed, has been, that those who formed them thought their wisdom equal to all possible contingencies, and that there could be no error in what they did. The gentlemen who framed this Constitution thought with much more diffidence of their capacities; and, undoubtedly, without a provision for amendment it would have been more justly liable to objection, and the characters of its framers would have appeared much less meritorious. This, indeed, is one of the greatest beauties of the system, and should strongly recommend it to every candid mind. The Constitution of any government which cannot be regularly amended when its defects are experienced, reduces the people to this dilemmathey must either submit to its oppressions, or bring about amendments, more or less, by a civil war. Happy this, the country we live in! The Constitution before us, if it be adopted, can be altered with as much regularity, and as little confusion, as any act of Assembly; not, indeed, quite so easily, which would be extremely impolitic; but it is a most happy circumstance, that there is a remedy in the system itself for its own fallibility, so that alterations can without difficulty be made, agreeable to the general sense of the people. Let us attend to the manner in which amendments may be made. The proposition for amendments may arise from Congress itself, when two thirds of both houses shall deem it necessary. If they should not, and yet amendments be generally wished for by the people, two thirds of the legislatures of the different states may require a general convention for the purpose, in which case Congress are under the necessity of convening one. Any amendments which either Congress shall propose, or which shall be proposed by such general convention, are afterwards to be submitted to the legislatures of the different states, or conventions called for that purpose, as Congress shall think proper, and, upon the ratification of three fourths of the states, will become a part of the Constitution. By referring this business to the legislatures, expense would be saved; and in general, it may be presumed, they would speak the genuine sense of the people. It may, however, on some occasions, be better to consult an immediate delegation for that special purpose. This is therefore left discretionary. It is highly probable that amendments agreed to in either of these methods would be conducive to the public welfare, when so large a majority of the states consented to them. And in one of these modes, amendments that are now wished for may, in a short time, be made to this Constitution by the states adopting it.
It is, however, to be observed, that the 1st and 4th clauses in the 9th section of the 1st article are protected from any alteration till the year 1808; and in order that no consolidation should take place, it is provided that no state shall, by any amendment or alteration, be ever deprived of an equal suffrage in the Senate without its own consent. The first two prohibitions are with respect to the census, (according to which direct taxes are imposed,) and with respect to the importation of slaves. As to the first, it must be observed, that there is a material difference between the Northern and Southern States. The Northern States have been much longer settled, and are much fuller of people, than the Southern, but have not land in equal proportion, nor scarcely any slaves. The subject of this article was regulated with great difficulty, and by a spirit of concession which it would not be prudent to disturb for a good many years. In twenty years, there will probably be a great alteration, and then the subject may be reconsidered with less difficulty and greater coolness. In the mean time, the compromise was upon the best footing that could be obtained. A compromise likewise took place in regard to the importation of slaves. It is probable that all the members reprobated this inhuman traffic; but those of South Carolina and Georgia would not consent to an immediate prohibition of it one reason of which was, that, during the last war, they lost a vast number of negroes, which loss they wish to supply. In the mean time, it is left to the states to admit or prohibit the importation, and Congress may impose a limited duty upon it.
Mr. BASS observed, that it was plain that the introduction of amendments depended altogether on Congress.
Mr. IREDELL replied, that it was very evident that it did not depend on the will of Congress; for that the legislatures of two thirds of the states were authorized to make application for calling a convention to propose amendments, and, on such application, it is provided that Congress shall call such convention, so that they will have no option.
Article 6th. 1st clause read without any observation.
2d clause read.
Mr. IREDELL. This clause is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles. What does it say? That “this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, raider the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” What is the meaning of this, but that, as we have given power, we will support the execution of it? We should act like children, to give power and deny the legality of executing it. It is saying no more than that, when we adopt the government, we will maintain and obey it; in the same manner as if the Constitution of this state had said that, when a law is passed in conformity to it, we must obey that law. Would this be objected to? Then, when the Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution. I presume, therefore, that this explanation, which appears to me the plainest in the world, will be entirely satisfactory to the committee.
Mr. BLOODWORTH. Mr. Chairman, I confess his explanation is not satisfactory to me. I wish the gentleman had gone farther. I readily agree that it is giving them no more power than to execute their laws. But how far does this go? It appears to me to sweep off all the constitutions of the states. It is a total repeal of every act and constitution of the states. The judges are sworn to uphold it. It will produce an abolition of the state governments. Its sovereignty absolutely annihilates them.
Mr. IREDELL. Mr. Chairman, every power delegated to Congress is to be executed by laws made for that purpose. It is necessary to particularize the powers intended to be given, in the Constitution, as having no existence before; but, after having enumerated what we give up, it follows, of course, that whatever is done, by virtue of that authority, is legal without any new authority or power. The question, then, under this clause, will always be, whether Congress has exceeded its authority. If it has not exceeded it, we must obey, otherwise not. This Constitution, when adopted, will become a part of our state Constitution; and the latter must yield to the former only in those cases where power is given by it. It is not to yield to it in any other case whatever For instance, there is nothing in the Constitution of this state establishing the authority of a federal court. Yet the federal court, when established, will be as constitutional as the superior Court is now under our Constitution. It appears to me merely a general clause, the amount of which is that, when they pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not. As to the sufficiency or extent of the power, that is another consideration, and has been discussed before.
Mr. BLOODWORTH. This clause will be the destruction of every law which will come in competition with the laws of the United States. Those laws and regulations which have been, or shall be, made in this state, must be destroyed by it, if they come in competition with the powers of Congress. Is it not necessary to define the extent of its operation? Is not the force of our tender-laws destroyed by it? The worthy gentleman from Wilmington has endeavored to obviate the objection as to the Constitution’s destroying the credit of our paper money, and paying debts in coin, but unsatisfactorily to me. A man assigns, by legal action, a bond to a man in another state; could that bond be paid by money? I know it is very easy to be wrong. I am conscious of being frequently so. I endeavor to be open to conviction. This clause seems to me too general, and I think its extent ought to be limited and defined. I should suppose every reasonable man would think some amendments to k were necessary.
Mr. MACLAINE. Mr. Chairman, that it will destroy the state sovereignty is a very popular argument. I beg leave to have the attention of the committee. Government is formed for the happiness and prosperity of the people at large. The powers given it are for their own good. We have found, by several years’ experience, that government, taken by itself nominally, without adequate power, is not sufficient to promote their prosperity. Sufficient powers must be given to it. The powers to be given the general government are proposed to be withdrawn from the authority of the state governments, in order to protect and secure the Union at large. This proposal is made to the people No man will deny their authority to delegate powers and recall them, in all free countries. But, says the gentleman last up, the construction of the Constitution is in the power of Congress, and it will destroy the sovereignty of the state governments. It may be justify said that it diminishes the power of the state legislatures, and the diminution is necessary to the safety and prosperity of the people; but it may be fairly said that the members of the general government,the President, senators, and representatives,whom we send thither, by our free suffrages, to consult our common interest, will not wish to destroy the state governments, because the existence of the general government will depend on that of the state governments.
But what is the sovereignty, and who is Congress? One branch, the people at large; and the other branch, the states by their representatives. Do people fear the delegation of power to themselvesto their own representatives? But he objects that the laws of the Union are to be the supreme laws of the land. Is it not proper that their laws should be the laws of the land, and paramount to those of any particular state?or is it proper that the laws of any particular state should control the laws of the United States? Shall a part control the whole? To permit the local laws of any state to control the laws of the Union, would be to give the general government no powers at all. If the judges are not to be bound by it, the powers of Congress will be nugatory. This is self-evident and plain. Bring it home to every understanding; it is so clear it will force itself upon it. The worthy gentleman says, in contradiction to what I have observed, that the clause which restrains the states from emitting paper money, &c., will operate upon the present circulating paper money, and that gold and silver must pay paper contracts. The clause cannot possibly have a retrospective view. It cannot affect the existing currency in any manner, except to enhance its value by the prohibition of future emissions. It is contrary to the universal principles of jurisprudence, that a law or constitution should have a retrospective operation, unless it be expressly provided that it shall. Does he deny the power of the legislature to fix a scale of depreciation as a criterion to regulate contracts made for depreciated money? As to the question he has put, of an assigned bond, I answer that it can be paid with paper money. For this reason, the assignee can be in no better situation than the assignor. If it be regularly transferred, it will appear what person had the bond originally, and the present possessor can recover nothing but what the original holder of it could. Another reason which may be urged is, that the federal courts could have no cognizance of such a suit. Those courts have no jurisdiction in cases of debt between the citizens of the same state. The assignor being a citizen of the same state with the debtor, and assigning it to a citizen of another state, to avoid the intent of the Constitution, the assignee can derive no advantage from the assignment, except what the assignor had a right to; and consequently the gentleman’s objection falls to the ground.
Every gentleman must see the necessity for the laws of the Union to be paramount to those of the separate states, and that the powers given by this Constitution must be executed. What, shall we ratify a government and then say it shall not operate? This would be the same as not to ratify. As to the amendments, the best characters in the country, and those whom I most highly esteem, wish for amendments. Some parts of it are not organized to my wish. But I apprehend no danger from the structure of the government. One gentleman (Mr. Bass) said he thought it neither necessary nor proper. For my part, I think it essential to our very existence as a nation, and our happiness and prosperity as a free people. The men who composed it were men of great abilities and various minds. They carried their knowledge with them. It is the result, not only of great wisdom and mutual reflection, but of “mutual deference and concession.” It has trifling faults, but they are not dangerous. Yet at the same time I declare that, if gentlemen propose amendments, if they be not such as would destroy the government entirely, there is not a single member here more willing to agree to them than myself.
Mr. DAVIE. Mr. Chairman: permit me, sir, to make a few observations on the operation of the clause so often mentioned. This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed, without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of a power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations. If you grant any power to the federal government, the laws made in pursuance of that power must be supreme, and uncontrolled in their operation. This consequence is involved in the very nature and necessity of the thing. The only rational inquiry is, whether those powers are necessary, and whether they are properly granted. To say that you have vested the federal government with power to legislate for the Union, and then deny the supremacy of the laws, is a solecism in terms. With respect to its operation on our own paper money, I believe that a little consideration will satisfy every man that it cannot have the effect asserted by the gentleman from New Hanover. The Federal Convention knew that several states had large sums of paper money in circulation, and that it was an interesting property, and they were sensible that those states would never consent to its immediate destruction, or ratify any system that would have that operation. The mischief already done could not be repaired: all that could be done was, to form some limitation to this great political evil. As the paper money had become private property, and the object of numberless contracts, it could not be destroyed or intermeddled with in that situation, although its baneful tendency was obvious and undeniable. It was, however, effecting an important object to put bounds to this growing mischief. If the states had been compelled to sink the paper money instantly, the remedy might be worse than the disease. As we could not put an immediate end to it, we were content with prohibiting its future increase, looking forward to its entire extinguishment when the states that had an emission circulating should be able to call it in by a gradual redemption.
In Pennsylvania, their paper money was not a tender in discharge of private contracts. In South Carolina, their bills became eventually a tender; and in Rhode Island, New York, New Jersey, and North Carolina, the paper money was made a legal tender in all cases whatsoever. The other states were sensible that the destruction of the circulating paper would be a violation of the rights of private property, and that such a measure would render the accession of those states to the system absolutely impracticable. The injustice and pernicious tendency of this disgraceful policy were viewed with great indignation by the states which adhered to the principles of justice. In Rhode Island, the paper money had depreciated to eight for one, and a hundred per cent. with us. The people of Massachusetts and Connecticut had been great sufferers by the dishonesty of Rhode Island, and similar complaints existed against this state. This clause became in some measure a preliminary with the gentlemen who represented the other states. “You have,” said they, “by your iniquitous laws and paper emissions, shamefully defrauded our citizens. The Confederation prevented our compelling you to do them justice; but before We confederate with you again, you must not only agree to be honest, but put it out of your power to be otherwise? Sir, a member from Rhode Island itself could not have set his face against such language. The clause was, I believe, unanimously assented to: it has only a future aspect, and can by no means have a retrospective operation; and I trust the principles upon which the Convention proceeded will meet the approbation of every honest man.
Mr. CABARRUS. Mr. Chairman, I contend that the clause which prohibits the states from emitting bills of credit will not affect our present paper money. The clause has no retrospective view. This Constitution declares, in the most positive terms, that no ex post facto law shall be passed by the general government. Were this clause to operate retrospectively, it would clearly be ex post facto, and repugnant to the express provision of the Constitution. How, then, in the name of God, can the Constitution take our paper money away? If we have contracted for a sum of money, we ought to pay according to the nature of our contract. Every honest man will pay in specie who engaged to pay it. But if we have contracted for a sum of paper money, it must be clear to every man in this committee, that we shall pay in paper money. This is a Constitution for the future government of the United States. It does not look back. Every gentleman must be satisfied, on the least reflection, that our paper money will not be destroyed. To say that it will be destroyed, is a popular argument, but not founded in fact, in my opinion. I had my doubts, but on consideration, I am satisfied.
Mr. BLOODWORTH. Mr. Chairman, I beg leave to ask if the payment of sums now due be ex post facto. Will it be an ex post facto law to compel the payment of money now due in silver coin? If suit be brought in the federal court against one of our citizens, for a sum of money, will paper money be received to satisfy the judgment? I inquire for information; my mind is not yet satisfied. It has been said that we are to send our own gentlemen to represent us, and that there is not the least doubt they will put that construction on it which will be most agreeable to the people they represent. But it behoves us to consider whether they can do so if they would, when they mix with the body of Congress. The Northern States are much more populous than the Southern ones. To the north of the Susquehannah there are thirty-six representatives, and to the south of it only twenty-nine. They will always outvote us. Sir, we ought to be particular in adopting a Constitution which may destroy our currency, when it is to be the supreme law of the land, and prohibits the emission of paper money. I am not, for my own part, for giving an indefinite power. Gentlemen of the best abilities differ in the construction of the Constitution. The members of Congress will differ too. Human nature is fallible. I am not for throwing ourselves out of the Union; but we ought to be cautious by proposing amendments. The majority in several great adopting states was very trifling. Several of them have proposed amendments, but not in the mode most satisfactory to my mind. I hope this Convention never will adopt it till the amendments are actually obtained.
Mr. IREDELL. Mr. Chairman, with respect to this clause, it cannot have the operation contended for. There is nothing in the Constitution which affects our present paper money. It prohibits, for the future, the emitting of any, but it does not interfere with the paper money now actually in circulation in several states. There is an express clause which protects it. It provides that there shall be no ex post facto law. This would be ex post facto, if the construction contended for were right, as has been observed by another gentleman. If a suit were brought against a man in the federal court, and execution should go against his property, I apprehend he would, under this Constitution, have a right to pay our paper money, there being nothing in the Constitution taking away the validity of it. Every individual in the United States will keep his eye watchfully over those who administer the general government, and no usurpation of power will be acquiesced in. The possibility of usurping powers ought not to be objected against it. Abuse may happen in any government. The only resource against usurpation is the inherent right of the people to prevent its exercise. This is the case in all free governments in the world. The people will resist if the government usurp powers not delegated to it. We must run the risk of abuse. We must take care to give no more power than is necessary; but, having given that, we must submit to the possible dangers arising from it.
With respect to the great weight of the Northern States, it will not, on a candid examination, appear so great as the gentleman supposes. At present, the regulation of our representation is merely temporary. Whether greater or less, it will hereafter depend on actual population. The extent of this state is very great, almost equal to that of any state in the Union; and our population will probably be in proportion. To the north of Pennsylvania, there are twenty-seven votes. To the south of Pennsylvania, there are thirty votes, leaving Pennsylvania out. Pennsylvania has eight votes. In the division of what is called the northern and southern interests, Pennsylvania does not appear to be decidedly in either scale. Though there may be a combination of the Northern States, it is not certain that the interests of Pennsylvania will coincide with theirs. If, at any time, she join us, we shall have thirty-eight against twenty-seven. Should she be against us, they will have only thirty-five to thirty. There are two states to the northward, who have, in some respect, a similarity of interests with ourselves. What is the situation of New Jersey? It is, in one respect, similar to ours. Most of the goods they use come through New York, and they pay for the benefit of New York, as we pay for that of Virginia. It is so with Connecticut; so that, in every question between importing and non-importing states, we may expect that two of the Northern States would probably join with North Carolina. It is impossible to destroy altogether this idea of separate interests. But the difference between the states does not appear to me so great as the gentleman imagines; and I beg leave to say, that, in proportion to the increase of population, the Southern States will have greater weight than the Northern, as they have such large quantities of land still uncultivated, which is not so much the case to the north. If we should suffer a Small temporary inconvenience, we shall be compensated for it by having the weight of population in our favor in future.
Mr. BLOODWORTH. Mr. Chairman, when I was in Congress, the southern and northern interests divided at Susquehannah. I believe it is so now. The advantage to be gained by future population is no argument at all. Do we gain any thing when the other states have an equality of members in the Senate, notwithstanding the increase of members in the House of Representatives? This is no consequence at all. I am sorry to mention it, but I can produce an instance which will prove the facility of misconstruction. [Here Mr. Bloodworth cited an instance which took place in Congress with respect to the Indian trade, which, not having been distinctly heard, is omitted.]
They may trample on the rights of the people of North Carolina if there be not sufficient guards and checks. I only mentioned this to show that there may be misconstructions, and that, in so important a case as a constitution, every thing ought to be clear and intelligible, and no ground left for disputes.
Mr. CALDWELL. Mr. Chairman, it is very evident that there is a great necessity for perspicuity. In the sweeping clause, there are words which are not plain and evident. It says that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, &c., shall be the supreme law of the land? The word pursuance is equivocal and ambiguous; a plainer word would be better. They may pursue bad as well as good measures, and therefore the word is improper; it authorizes bad measures. Another thing is remarkable,that gentlemen, as an answer to every improper part of it, tell us that every thing is to be done by our own representatives, who are to be good men. There is no security that they will be so, or continue to be so. Should they be virtuous when elected, the laws of Congress will be unalterable. These laws must be annihilated by the same body which made them. It appears to me that the laws which they make cannot be altered without calling a convention. [Mr. Caldwell added some reasons for this opinion, but spoke too low to be heard.]
Gov. JOHNSTON. Mr. Chairman, I knew that many gentlemen in this Convention were not perfectly satisfied with every article of this Constitution; but I did not expect that so many would object to this clause. The Constitution must be the supreme law of the land; otherwise, it would be in the power of any one state to counteract the other states, and withdraw itself from the Union. The laws made in pursuance thereof by Congress ought to be the supreme law of the land; otherwise, anyone state might repeal the laws of the Union at large. Without this clause, the whole Constitution would be a piece of blank paper. Every treaty should be the supreme law of the land; without this, any one state might involve the whole Union in war. The worthy member who was last up has started an objection which I cannot answer. I do not know a word in the English language so good as the word pursuance, to express the idea meant and intended by the Constitution. Can any one understand the sentence any other way than this? When Congress makes a law in virtue of their constitutional authority, it will be an actual law. I do not know a more expressive or a better way of representing the idea by words. Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it cannot have been made in pursuance of its powers. The latter will be nugatory and void. I am at a loss to know what he means by saying the laws of the Union will be unalterable. Are laws as immutable as constitutions? Can any thing be more absurd than assimilating the one to the other? The idea is not warranted by the Constitution, nor consistent with reason.
Mr. J. M’DOWALL wished to know how the taxes are to be paid which Congress were to lay in this state. He asked if paper money would discharge them. He calculated that the taxes would be higher, and did not know how they could be discharged; for, says he, every man is to pay so much more, and the poor man has not the money locked up in his chest. He was of opinion that our laws could be repealed entirely by those of Congress.
Mr. MACLAINE. Mr. Chairman, taxes must be paid in gold or silver coin, and not in imaginary money. As to the subject of taxation, it has been the opinion of many intelligent men that there will be no taxes laid immediately, or, if any, that they will be very inconsiderable: There will be no occasion for it, as proper regulations will raise very large sums of money. We know that Congress will have sufficient power to make such regulations. The moment that the Constitution is established, Congress will have credit with foreign nations. Our situation being known, they can borrow any sum. It will be better for them to raise any money they want at present by borrowing than by taxation. It is well known that in this country gold and silver vanish when paper money is made. When we adopt, if ever, gold and silver will again appear in circulation. People will not let their hard money go, because they know that paper money cannot repay it. After the war, we had more money in gold and silver, in circulation, than we have nominal money now. Suppose Congress wished to raise a million of money more than the imposts. Suppose they borrow it. They can easily borrow it in Europe at four per cent. The interest of that sum will be but £40,000. So that the people, instead of having the whole £1,000,000 to pay, will have but £40,000 to pay, which will hardly be felt. The proportion of £40,000 for this state would be a trifle. In seven years’ time, the people would be able, by only being obliged to pay the interest annually, to save money, and pay the whole principal, perhaps, afterwards, without much difficulty. Congress will not lay a single tax when it is not to the advantage of the people at large. The western lands will also be a considerable fired. The sale of them will aid the revenue greatly, and we have reason to believe the impost will be productive.
Mr. J. M’DOWALL. Mr. Chairman, instead of reasons and authorities to convince me, assertions are made. Many respectable gentlemen are satisfied that the taxes will be higher. By what authority does the gentleman say that the impost will be productive, when our trade is come to nothing? Sir, borrowing money is detrimental and ruinous to nations. The interest is lost money. We have been obliged to borrow money to pay interest! We have no way of paying additional and extraordinary sums. The people cannot stand them. I should be extremely sorry to live under a government which the people could not understand, and which it would require the greatest abilities to understand. It ought to be plain and easy to the meanest capacity. What would be the consequence of ambiguity? It may raise animosity and revolutions, and involve us in bloodshed. It becomes us to be extremely cautious.
Mr. MACLAINE. Mr. Chairman, I would ask the gentleman what is the state of our trade. I do not pretend to a very great knowledge in trade, but I know something of it. If our trade be in a low situation, it must be the effect of our present weak government, I really believe that Congress will be able to raise almost what sums they please by the impost. I know it will, though the gentleman may call it assertion, I am not unacquainted with the territory or resources of this country. The resources, under proper regulations, are very great. In the course of a few years, we can raise money without borrowing a single shilling. It is not disgraceful to borrow money. The richest nations have recurred to loans on some emergencies. I believe, as much as I do in my existence, that Congress will have it in their power to borrow money if our government be such as people can depend upon. They have been able to borrow now under the present feeble system. If so, can there be any doubt of their being able to do it under a respectable government?
Mr. M’DOWALL replied, that our trade was on a contemptible footing; that it was come almost to nothing, and lower in North Carolina than any where; that therefore little could be expected from the impost.
Mr. J. GALLOWAY. Mr. Chairman, I should make no objection to this clause were the powers granted by the Constitution sufficiently defined; for I am clearly of opinion that it is absolutely necessary for every government, and especially for a general government, that its laws should be the supreme law of the land. But I hope the gentlemen of the committee will advert to the 10th section of the 1st article. This is a negative which the Constitution of our own state does not impose upon us. I wish the committee to attend to that part of it which provides that no state shall pass any law which will impair the obligation of contracts. Our public securities are at a low ebb, and have been so for many years. We well know that this country has taken those securities as specie. This hangs over our heads as a contract. There is a million and a half in circulation at least. That clause of the Constitution may compel us to make good the nominal value of these securities. I trust this country never will leave it to the hands of the general government to redeem the securities which they have already given. Should this be the case, the consequence will be, that they will be purchased by speculators, when the citizens will part with them, perhaps for a very trifling consideration. Those speculators will look at the Constitution, and see that they will be paid in gold and silver. They will buy them at a half-crown in the pound, and get the full nominal value for them in gold and silver. I therefore wish the committee to consider whether North Carolina can redeem those securities in the manner most agreeable to her citizens, and justifiable to the world, if this Constitution be adopted.
Mr. DAVIE. Mr. Chairman, I believe neither the 10th section, cited by the gentleman, nor any other part of the Constitution, has vested the general government with power to interfere with the public securities of any state. I will venture to say that the last thing which the general government will attempt to do will be this. They have nothing to do with it. The clause refers merely to contracts between individuals. That section is the best in the Constitution. It is founded on the strongest principles of justice. It is a section, in short, which I thought would have endeared the Constitution to this country. When the worthy gentleman comes to consider, he will find that the general government cannot possibly interfere with such securities. How can it? It has no negative clause to that effect. Where is there a negative clause, operating negatively on the states themselves? It cannot operate retrospectively, for this would be repugnant to its own express provisions. It will be left to ourselves to redeem them as we please. We wished we could put it on the shoulders of Congress, but could not. Securities may be higher, but never less. I conceive, sir, that this is a very plain case, and that it must appear perfectly clear to the committee that the gentleman’s alarms are groundless.