Documents Illustrative of the Formation of the Union of the American States
PAPERS OF DR. JAMES McHENRY ON THE FEDERAL CONVENTION OF 17871
Selected, Arranged, and Indexed by Charles C. Tansill
PHILADELPHIA 14 May 1787
On the 25th seven states being represented viz. New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina and South Carolina, George Washington was elected (unanimously) president of the convention.
The convention appoint a committee to prepare and report rules for conducting business which were reported, debated, and in general agreed to on the 28th.
Governor Randolph opened the business of the convention.2 He observed that the confederation fulfilled none of the objects for which it was framed. 1st. It does not provide against foreign invasions. 2dly. It does not secure harmony to the States. 3d. It is incapable of producing certain blessings to the States. 4. It cannot defend itself against encroachments. 5th. It is not superior to State constitutions.
1st. It does not provide against foreign invasion. If a State acts against a foreign power contrary to the laws of nations or violates a treaty, it cannot punish that State, or compel its obedience to the treaty. It can only leave the offending State to the operations of the offended power. It therefore cannot prevent a war. If the rights of an ambassador be invaded by any citizen it is only in a few States that any laws exist to punish the offender. A State may encroach on foreign possessions in its neighbourhood and Congress cannot prevent it. Disputes that respect naturalization cannot be adjusted. None of the judges in the several States under the obligation of an oath to support the confederation, in which view this writing will be made to yield to State constitutions.
Imbecility of the Confederation equally conspicuous when called upon to support a war. The journals of Congress a history of expedients. The States in arrears to the federal treasury from the to the
What reason to expect that the treasury will be better filled in future, or that money can be obtained under the present powers of Congress to support a war. Volunteers not to be depended on for such a purpose. Militia difficult to be collected and almost impossible to be kept in the field. Draughts stretch the strings of government too violently to be adopted. Nothing short of a regular military force will answer the end of war, and this only to be created and supported by money.
2. It does not secure harmony to the States. It cannot preserve the particular States against seditions within themselves or combinations against each other. What laws in the confederation authorise Congress to intrude troops into a State. What authority to determine which of the citizens of a State is in the right, The supporters or the opposers of the government, Those who wish to change it, or they who wish to preserve it.
No provision to prevent the States breaking out into war. One State may as it were underbid another by duties, and thus keep up a State of war.
3. Incapable to produce certain blessings. The benefits of which we are singly incapable cannot be produced by the union. The 5 per cent impost not agreed; a blessing congress ought to be enabled to obtain.
Congress ought to posses[s] a power to prevent emissions of bills of credit.
Under this head may be considered the establishment of great national worksthe improvement of inland navigationagriculturemanufacturesa freer intercourse among the citizens.
4. It cannot defend itself against incroachments. Not an animated existence which has not the powers of defence. Not a political existence which ought not to possess it. In every Congress there has been a party opposed to federal measures. In every State assembly there has been a party opposed to federal measures. The States have been therefore delinquent. To What expedient can congress resort, to compel delinquent States to do what is right. If force, this force must be drawn from the States, and the States may or may not furnish it.
5. Inferior to State constitutions. State constitutions formed at an early period of the war, and by persons elected by the people for that purpose. These in general with one or two exceptions established about 1786 [sic]. The confederation was formed long after this, and had its ratification not by any special appointment from the people, but from the several assemblies. No judge will say that the confederation is paramount to a State consti[tu]tion.
Thus we see that the confederation is incompetent to any one object for which it was instituted. The framers of it wise and great men; but human rights were the chief knowle[d]ge of the times when it was framed so far as they applied to oppose Great Britain. Requisitions for men and money had never offered their form to our assemblies. None of those vices that have since discovered themselves were apprehended. Its defects therefore no reflextion [sic] on its contrivers.
Having pointed out its defects, let us not be affraid to view with a steady eye the perils with which we are surrounded. Look at the public countenance from New Hampshire to Georgia. Are we not on the eve of war, which is only prevented by the hopes from this convention.
Our chief danger arises from the democratic parts of our constitutions. It is a maxim which I hold incontrovertible, that the powers of government exercised by the people swallows [sic] up the other branches. None of the constitutions have provided sufficient checks against the democracy. The feeble Senate of Virginia is a phantom. Maryland has a more powerful senate, but the late distractions in that State, have discovered that it is not powerful enough. The check established in the constitution of New York and Massachusets is yet a stronger barrier against democracy, but they all seem insufficient.
He then submitted the following propositions which he read and commented upon seriatim.3