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To the MINORITY of the CONVENTION of Pennsylvania
Gentlemen, The principal object of my last paper was to point out a variety of instances, in which the agency and power of the state governments are absolutely necessary to the existence of civil society, and to the execution of the federal constitution itself. I therein shewed that certain important matters, which must be done from time to time, cannot be attempted or performed by the general government. Here, then, we find, not only that the state powers will not be annihilated, but that they are so requisite to our system, that they cannot be dispensed with.
Having seen what Congress cannot do, let us now proceed to examine what the state governments must or may do.
First, them each state can appoint every officer of its own militia, and can train the same, by which it will be sure of a powerful military support attached to, and even part of itself, wherein no citizen of any other state can be a private centinel, much less have influence or command.
2dly. Every regulation relating to religion, or the property of religious bodies, must be made by the state governments, since no powers affecting those points are contained in the constitution.
3dly. The state legislatures and constitutions must determine the qualifications of the electors for both branches of the federal government; and here let us remember to adhere firmly within our respective commonwealths to genuine republican principles. Wisdom, on this point which lies entirely in our hands, will pervade the whole system, and will be a never failing antidote to aristocracy, oligarchy and monarchy.
4thly. Regulating the law of descents, and forbidding the entail of landed estates, are exclusively in the power of the state legislatures. A perfect equality, at least among the males, and possibly among the females, should be established, not only in the strict line of descent, but in the most remote collateral branches. If a man omits to make a will, the public should distribute his property equally among those who have equal pretensions, and who are able to render equal services to the community. By these means, poverty and extreme riches would be avoided, and a republican spirit would be given to our laws, not only without a violation of private rights, but consistently with the principles of justice and sound policy. This power with that mentioned under the last head, if exercised with wisdom and virtue, will preserve the freedom of the states beyond any other means.
5thly. The elections of the President, Vice President, Senators and Representatives, are exclusively in the hands of the states, even as to filling vacancies. The smallest interference of Congress is not permitted, either in prescribing the qualifications of electors, or in determining what persons may or may not be elected.
The clause which enables the federal legislature to make regulations on this head, permits them only to say at what time in the two years the house of representatives shall be chosen, at what time in the six years the Senate shall be chosen, and at what time in the four years the President shall be elected; but these elections, by other provisions in the constitution, must take place every two, four and six years, as is declared in the several clauses respectively.
6thly. The states elect, appoint and commission all their own officers, without any possible interference of the federal government.
7thly. The states can alter and amend their several constitutions, provided they do not make them aristocratical, oligarchic or monarchical–for the federal constitution restrains them from any alterations that are not really republican. That is, the sovereignty of the people is never to be infringed or destroyed.
8thly. The states have the power to erect corporations for literary, religious, commercial, or other purposes, which the federal government cannot prevent.
9thly. Every state can always give its dissent to federal bills, as each has a vote in the Senate secured by the constitution. Hence it appears, that the state governments are not only intended to remain in force within their respective jurisdictions, but they are always to be known to, and have their voices, as states, in the federal councils.
10thly. The states not only elect all their own officers, but they have a check, by their delegates to the Senate, on the appointment of all federal officers.
11thly. The states are to hold separate territorial rights, and the domestic jurisdiction thereof, exclusively of any interference of the federal government.
12thly. The states will regulate and administer the criminal law, exclusively of Congress, so far as it regards mala in se, or real crimes; such as murder, robbery, &c. They will also have a certain and large part of the jurisdiction, with respect to mala prohibita, or matters which are forbidden from political considerations, though not in themselves immoral; such as unlicenced public houses, nuisances, and many other things of the like nature.
13thly. The states are to determine all the innumerable disputes about property lying within their respective territories between their own citizens, such as titles and boundaries of lands, debts by assumption, note, bond, or account, mercantile contracts, &c. none of which can ever be cognizable by any department of the federal government.
14thly. The several states can create corporations civil and religious; prohibit or impose duties on the importation of slaves into their own ports; establish seminaries of learning; erect boroughs, cities and counties; promote and establish manufactures; licence taverns; alter the criminal law; constitute new courts and offices; establish ferries; erect public buildings; sell, lease and appropriate the proceeds and rents of their lands, and of every other species of state property; establish poor houses, hospitals, and houses of employment; regulate the police; and many other things of the utmost importance to the happiness of their respective citizens. In short, besides the particulars enumerated, every thing of a domestic nature must or can be done by them.
In addition to this enumeration of the powers and duties of the state governments, we shall find many other instances under the constitution, which require or imply the existence or continuance of the sovereignty and severalty of the states.–The following are some of them:–
All process against criminals and many other law proceedings will be brought by and run in the name of that commonwealth, in which the offence or event has taken place.
The senate will be representatives of the several state sovereignties.
Every state must send its own citizens to the senate and to the house of representatives. No man can go thither, but from the state of which he is a complete citizen, and to which, if they choose, he shall be sworn to be faithful.
No state shall on any pretence be without an equal voice in the senate.
Any state may repel invasions or commence a war under emergent circumstances, without waiting for the consent of Congress.
The electors of the President and Vice-President must not nominate more than one person of the state to which they belong: so careful is the federal constitution to preserve the rights of the states.
In case of an equality of votes in the election of the President or Vice-President, a casting voice is given to the states from a due attention to their sovereignty in appointing the ostensible head of the federal government.
The President of the United States may require written communications from the governors of the states.
Provision is made for adjusting differences between two states–or one state and the citizens of another. New states may be admitted into the union. As all the territory of each state is already in the union, it is clear that any district will stand on different ground when erected into a state, from what it did when it composed a number of counties, or a part of an already existing member of the confederacy.
Two states may not become one without the consent of Congress, which proved clearly that the convention held the severalty of the states necessary. This is directly opposed to your idea, that consolidation was intended. Each state and the federal justiciary are to give faith and credit to the records and proceedings of every other state.
The states have, in the federal constitution, a guarantee of a separate republican form of government.
Two thirds of the states in the proposed confederacy can call a convention.
Three fourths of those states can alter the constitution.
From this examination of the proposed constitution for the United States, I trust it will appear, that though there are some parts of it, which, taken separately, look a little like consolidation, yet there are many others of a nature, which proves, that no such thing was intended, and that it cannot ever take place.
It is but since the middle of the present century, that the principles and practice of free governments have been well understood, political science having been much slower in its progress than any other branch. Perhaps this has been caused by the greater degree of passion, to which, from its nature, this department of knowledge is subjected. The principles on which free sovereignties ought to confederate is quite a new question, and a new case. It is difficult to take it up at once in the proper way. One circumstance has exceedingly obscured the subject, and hid the truth from the eyes of many of us. Most of the states being in the possession of free governments, have looked for the same forms in a confederating instrument, which they have justly esteemed in their several social compacts. Recommending this distinction as necessary to be taken home to your minds when you examine the great subject before you, I shall cease to trespass on your time.