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American
Patriot Party National News
Letter - November 2006
The Division
of Power
To all State
Chair Persons and Party Members:
Welcome to the American Patriot
Party.
This is the first issue of the
American Patriot Party National
News Letter.
We will try not to burden you
with many throughout the year,
but will try to alert you to any
new or notable issues, call
attention to definitions
in the documents, or when
necessary, clarify party stands
on issues.
In this premiere issue we call
attention to two updated pages
on the national web site.
1.)
Freedom, Public Opinion,
Consent and Condemnation.
2.)
Socialism as defined by the
American Patriot Party
Below are
listed three links from constitution.org
You may want to "save page as"
"Web page complete" to your desk
top when you find notable pages,
as some times it is extremely
hard to reacquire a page after
leaving the site as there are so
many documents.
The subject presented in this
news letter is entitled "The
Division of Power" I thought it
fitting for two reasons, one, I
thought it would help define the
Party's stand on that division,
and two, because the stirring
discussion I had a week ago with
the Ohio party which had
prompted me for a little
discussion and actual
documentation on the subject of
state powers and national
powers and the division
line between the two.
Below I have copied a page that
presents one of the better
debates that really exemplifies
some core problems of power, and
voiced very clearly by Patrick
Henry and others. It would good
for you to read the Rights of
the Colonists 1772 first to
understand the issues debated
here, to see the solid
foundation of Patrick Henry's
concerns as he had well
experienced the abuse of
national powers only 12 years
prior to this debate. He ends
some of his with questions meant
to establish the obvious facts
of recent history; and though
serious in nature are somewhat
humorous in delivery. The
fluidity of all the speakers
sets one in awe. There is finite
reasonings presented for which
are explored where the powers
should lay.
The issues range from Militias,
Standing Armies and a very
good debate on the Bill of
Rights which Patrick Henry
defends quite artistically with
words; against those who would
have omitted them. It is why we
caution state chairs on which
person's they quote, as some
founders of "federalism" were in
fact not presenting those long
established foundations of
freedom, but of the same vague
easily corrupted establishments
found in tyrannical governments
and subversive powers with no
safeguards.
Some of the founder's statements
that are made that need to be in
context, as there is even one
area that Patrick Henry points
out that the document states
that the congress should control
the militia, but he is
describing the "flaw" in the
document; This, as he is a tough
critic on the new Constitution
for good cause, and an ardent
proponent of the Bill of Rights;
In reading, both at start and
finish, he is opposed to giving
Congress sweeping powers of
force, thereby you must read not
only the discussions in context
to the many varied subjects
(including understanding the
many varied levels of perceived
definitions of militia which had
changed prior to this
discussion; and they discuss may
change in the future), but
relate them over all; and
further read back to the history
of which they relate to, the Declaration
of Independence,
established common law
as in the Rights of
the Colonists, the Magna
Carta and early state
constitutions; As these
were well known by them,
and were in this knowledge taken
for granted as they
spoke, expecting those around
them to be in understanding of
them. The artistry of their
speech (pointed out by George
Mason in relation to the
federalist evasions as "artful
sophistry and evasions could
not satisfy him" and
some of Patrick Henry's
facetious speech "parts" make it
hard to tell at times when he is
taunting the opposing position
with their stands and optimism
of the proposed national
government and the "integrity"
of the persons that will weld
power within it. This sometimes
causes even those in the debate
to clarify.
You will find many of those
debating the issue are actually
agreeing, but are found defining
separate issues which they
eventually clear up to some
extent.... (this is just one of
many debates) make sure to read
clear through this one, as some
times they are being facetious
to make their point.
Note that the federalists "dance
around" the idea (as well as
attempt to disarm his concerns)
that Patrick Henry and George
Mason touch upon; And that is,
that should laws change, which
they have, and new persons in
the government be disingenuous,
what is to protect the states
and or the people when the
federal government has corrupted
the national government and
welds the greater power in which
the state militias are obligated
now to serve.
The safeguards they mention
here, besides the inclusion of
the Bill of Rights, is the
state's ability to adequately
control, arm and defend
themselves withadequate
powers to repel.
This includes importing
arms and arming themselves
and their state militias
outside the federal
government.
These safeguards, in
part, have been taken down or
relinquished by corruptions they
mention here;
What it does define
clearly, is that the
states can arm
and manage their own militias
for just that protection; This
protection can extend out
to protect other states; So
there are these protections,
if the states would use
them, or even understand the
intent for which they exist. Which
is the reason that every
free citizen and our state
governments need to be
educated in these rights.
The difficulty, as
presented above and by Patrick
Henry, is when the "National"
(federal) government is
disingenuous, what will be the procedure
of the states toward the
national; The question comes up,
but is not directly
answered but for the right of
the states to control the
militia when there is no
war against foreign
invaders that requires attention
by the national;
Or when the state
is attacked, or in eminent
danger, the "state"
"can"engage in war without
approval from congress.
Insuring the right of the state
to defend itself absolutely
against any invader of their
state constitutions and
freedoms.
Early law and these conventions,
establishes that a free state
can limit the forces that it
will offer to a national cause
by establishing what the state
believes it needs to adequately
protect its own state. This
would be one safeguard to
insuring a free state; or
states, which they have a right
to defend each others freedoms
in the face of the rise of
tyranny in the national
government. Again is the
procedure or steps; and what
clear issues must arise to enact
that procedure and how would a
state withdraw it's militia from
a "standing army" controlled by
the national of which it is
attempting to defend against.
The issues are clearly written
in the Declaration of
Independence within the
grievances. The procedures and
steps are what is needed to
complete and establish this
safeguard.
Note that the definition of
"MILITIA" by James Madison is
a force of CIVILIANS
>>> in OPPOSITION of
the standing army "officered
by men chosen among
themselves", not by
government or military; All
other definitions of militia are
baseless:
James
Madison: "The highest
number to which a standing army
can be carried in any country
does NOT EXCEED one
hundredth part of the souls, or one
twenty-fifth (1/25th) part of
the number able to bear arms. This PORTION
would not yield, in the United
States, an army of more than
twenty-five or thirty thousand
men.
To
"these" would be "OPPOSED" (APP:
indicating that the "militia"
is to be a "OPPOSING force"
to the standing army
as well as that of foreign
enemies)
a MILITIA
amounting to near half a million
"CITIZENS" with arms
in theirHANDS,"officered
by men chosen from "AMONG
THEMSELVES", (NOT by
government or the standing
army - a solid restriction to
the true definition of the
term "MILITIA") fighting
for "their"(the
citizen / militia's) common
liberties and united and
conducted by government"S" (local) possessing
their(the
citizen / militia's) affections
and confidence. It may well be
doubted whether a
militia thus circumstanced could ever
be conquered by such a
"proportion" of regular
troops(i.e.
standing army). Besides the
advantage of being armed, it
forms a barrier against the "enterprises
of ambition", more
insurmountable than any which a
simple government of any form
can admit of.
The governments of Europe are
afraid to trust the people with
arms. If they did, the people
would surely shake off the yoke
of tyranny, as America did. Let us not
insult the free and gallant
citizens of America with the
suspicion that they would be
less able to defend the rights of
which they would be in
actual possession than the debased
subjects of arbitrary power
would be to rescue theirs from
the hands of their oppressors."
George Mason
establishes in this convention,
that the MILITIA is ALL
PEOPLE, and
emphasizes the importance of the
arming of the CITIZENS not
be neglected.
Other limitations found in
this convention which define
the meaning of the
Constitution are:
* The federal
government CANNOT
exceed the 10 miles
square granted it NOR
BE MORE than 1 MILE;
* The federal
government CANNOT
govern
police outside the 10 miles
square;
* The federal government CANNOT
make ANY regulation
that even "MAY"
affect the citizens of the
"Union at Large";(i.e. income
tax, environmental laws etc.)
* The federal government CANNOT
exceed the delegated powers, not
even by ONE STEP;
* The federal government CANNOT
arrogate ANY new
power; (an "unenumerated"
income tax is a arrogation
of power outside the limited
delegated power of
"enumerated" taxation only)
* The federal government can
prosecute a.)
piracies and felonies
committed on the high seas,
and b.) offences against
the laws of nations; c.)
treason;
* The
federal government CANNOT
DEFINE or PRESCRIBE the
PUNISHMENT of "ANY OTHER
CRIME WHATEVER",
WITHOUT "VIOLATING the
CONSTITUTION".
* The supremacy
is limited to the 10
miles square, i.e."THAT
PLACE SOLELY" i.e.
supreme law of "the land"
= the 10 miles square.
* The
STATES can VOID (NULLIFY)
anything of the federal
government for
which they sense danger, and "REFUSE
IT ALTOGETHER".
( See
also Virginia and Kentucky
Resolutions)
* The
federal government must
acquire permission
from any state to have forts.
(the Civil War began by the US
federal government refusing the
State orders to vacate a Fort
Sumter which it was require to
do by the Constitution if
Consent of the state was
retracted)
See also Constitution's limited
delegated powers and Kentucky
Resolutions #2
indicating again clearly the
federal government CANNOT
even CREATE ANY new
laws so to prosecute ANY
new crimes, but are LIMITED to
the "4" they had been
granted in the Constitution's
Compact, to prosecute;
The
RATIFYING and AMENDMENT
process was for
making changes in the DELEGATED
powers, it was NEVER
meant to be used as
a means to arrogate new
powers upon the federal
government which the federal
government was EXPRESSLY
PROHIBITED; by "ANY
MEANS".
If you are of my view
of this debate, you will find it
both stirring and thoroughly
enjoying.
What I note the greatest
achievement by Patrick Henry, is
the way he draws out the
"intentions" and clarifications
of the federalists and anti
federalists alike, which
in fact establish our laws as
defined in their intent;
As a judge looks back at the intentions
set forth in the legislature
which creates law to establish
how he upholds the law in court;
So is the intent
of the Founders, who have
created and established the
Constitution, the law of the
Constitution and prior
rights even the Constitution
is subject to, are
to be upheld in every
court.
All those prior known
rights not expressly
delegated, and those rights
which either are established by
engagements, oaths and known
law, are reserved
to the states and to the people.
They are in full effect
today as they were before
the Constitution was
ratified, as clearly
presented.
In these the federal
government has no power over,
but only to defend, at request
of the independent state.
It is clear in these debates,
that the intent of the founders
is that the federal government
is only there as an additional
protection at the beck and call
and control of the states; and
not one of creator
of "new powers", a subjugator,
or of internal improvements, and
manipulations of state laws; or
of anything that has not been expressly
delegated to it.
Sincerely,
Richard Taylor
Chair
American
Patriot Party (.cc)
American Patriot Party of
Oregon
I have highlighted some text for
emphasis.
The third link, which presents
some intense exchanges, I have
presented below in full,
as Patrick Henry and others
presents many concerns that have
today have arisen.
The first link is a index of
other indexes of many papers,
letters and founders debates.
The second link are those
relating to Patrick Henry.
http://www.constitution.org/afp.htm
http://www.constitution.org/afp/phenry00.htm
On the
Bill of Rights (very good)
http://www.constitution.org/rc/rat_va_13.htm#henry-12
----------------
Virginia
Ratifying Convention
MONDAY,
June 16, 1788.[1] [Elliot
misprinted this as Monday, June
14, 1788.]
The
Convention, according to
the order of the day, again
resolved itself into a
committee of the whole
Convention, to take into further
consideration the proposed plan
of government. Mr. WYTHE in the
chair.
[The 8th section
still under consideration. See
page 378.]
Mr.
HENRY thought it
necessary and proper that they
should take a collective view
of this whole section, and
revert again to the first
clause. He adverted to the
clause which gives Congress the
power of raising armies, and
proceeded as follows: To me this
appears a very
alarming power, when
unlimited. They are
not only to raise, but to
support, armies; and this
support is to go to the utmost
abilities of the United States.
If Congress shall say that
the general welfare requires
it, they may keep armies
continually on foot. There
is no control on Congress in
raising or stationing them.They
may billet them on the
people at pleasure. This
unlimited authority is a
most dangerous power: its
principles are despotic. If it
be unbounded, it must lead
to despotism; for the power
of a people in a free
government is supposed to be
"paramount" to the existing
power.
We shall be
told that, in England, the king,
lords, and commons, have this
power; that armies can be raised
by the prince alone, without
the "consent" of the people. How does
this apply here? Is this
government to place us in the
situation of the English?
Should we suppose this
government to resemble king,
lords, and commons, we of this
state {411} should be like an
English county. An English
county Cannot control the
government. Virginia cannot
control the government of
Congress any more than the
county of Kent can control that
of England. Advert to the power
thoroughly. One of
our first complaints, under the
former government,was
the quartering of troops
upon us. This was
one of the principal
reasons for dissolving
the connection with Great
Britain. Here we may
have troops in time of peace.
They may be billeted in any
manner to tyrannize, oppress,
and crush us.
We are
told, we are afraid to trust
ourselves; that our
own representatives Congress
will not exercise their powers
oppressively; that we
shall not enslave ourselves;
that the militia cannot
enslave themselves,
&c.
WHO has enslaved
France, Spain, Germany, Turkey,
and other countries which groan
under tyranny?
They
have been "ENSLAVED"
by the hands of their "OWN
PEOPLE".
If it will be so in
America, it will be only
as it has been every
where else.
I am still persuaded that
the power of calling forth the
militia, to
execute the laws of the
Union, is dangerous. We
requested the gentleman to show
the cases where the militia
would be wanting to execute the
laws. Have we received a
satisfactory answer?
When we consider this part, and
compare it to other parts, which
declare that Congress may
declare war, andthat
the President shall command
the regular troops, militia,
and navy, we shall find
great danger. Under the
order of Congress, they shall
suppress insurrections. Under
the order of Congress, they
shall be called to
execute the "laws".
It will result, of course, that
this is to be a government of
force. Look at
the part which speaks of
excises, and you will
recollect that those who are
to collect excises and duties
are to be aided by military
force. They have power to
call them out, and to provide
for arming, organizing,
disciplining, them.
Consequently, they are to make
militia laws for this state.
The
honorable gentleman said that
the militia should be called
forth to quell riots. Have
we not seen this
business go on very well to-day
without military force?
It is a long-established
principle of the common law of
England, that civil force is
sufficient to quell riots. To what
length may it not be carried? A
law may be made that, if twelve
men assemble, if they do not
disperse, they may be fired
upon. {412} I
think it is so in England.Does not
this part of the paper bear a
strong aspect? The
honorable gentleman, from his
knowledge, was called upon to
show the instances, and he told
us the militia may be called out
to quell riots. They may make
the militia travel, and act
under a colonel, or perhaps
under a constable. Who
are to determine whether it
be a riot or not?
Those who are to execute
the laws of the Union?
If they have power to execute
their laws in this manner, in
what situation are we
placed! Your men
who go to Congress are not
restrained by a bill of rights.
They are not restrained from
inflicting unusual and severe
punishments, though the bill of
rights of Virginia forbids it.
What will be the consequence?
They may inflict the most cruel
and ignominious punishments on
the militia, and they will
tell you that it is necessary
for their discipline.
Give
me leave to ask another thing. Suppose an
exciseman will demand leave to
enter your cellar, or house, by
virtue of his office; perhaps he
may call on the militia to
enable him to go. If
Congress be informed of it, will
they give you redress? They
will tell you that he is
executing the laws under the
authority of the continent
at large, which must be
obeyed, for that the
government cannot be carried
on without exercising
severity. It, without
any reservation of rights or
control, "you"
are contented to give up
"your" rights, "I am not". There is no
principle to guide the
legislature to restrain them
from inflicting the utmost
severity of punishment. Will
gentlemen voluntarily
give up their liberty? With
respect to calling the militia
to enforce every execution
indiscriminately, it is
unprecedented. Have we ever seen
it done in any free country? Was
it ever so in the mother
country? It never was so in any
well-regulated country.It is
a government of force, and the
genius
of despotism
expressly. It
is not proved that this power is
necessary, and if it be
unnecessary,shall we give
it up?
Mr.
MADISON. Mr.
Chairman, I will endeavor to
follow the rule of the house,
but must pay due attention
to the observations which fell
from the gentleman. I
should conclude, from
abstracted reasoning, that they
were ill founded I should think
that, if there were any object
which the general government
ought to command, it would be
the direction of the national
forces. And as
the force which lies in
(the
CITIZEN)
militia is MOST
SAFE, the
direction of that part ought to
be {413} submitted to, in
order to render another force
unnecessary. The
power objected to is necessary,
because it is to be employed for
"national"
purposes. It is
necessary to be given to every
government. This is not opinion,
but fact. The highest authority
may be given, that the want of
such authority in the government
protracted the late war, and
prolonged its calamities.
He says that
one ground of complaint,
at the beginning of the
revolution, was, that a standing
army was quartered upon
us. This was
not the whole complaint.
We complained because it was
done without the"LOCAL
Authority"of
this country
without the CONSENT of the people of
America. As to the
exclusion of standing armies in
the bill of rights of the
states, we shall find that
though, in one or two of them,
there is something like a
prohibition, yet, in most of
them, it is only provided that
no armies shall be kept without
the legislative authority; that is,
without the CONSENT
of the community
itself. Where is
the impropriety of saying that
we shall have an army, if
necessary?
Does not the notoriety of this
constitute security? If inimical
nations were to fall upon us
when defenceless, what would be
the consequence? Would it be
wise to say, that we should have
no defence? Give me leave to
say, that the only
possible way to provide
against standing
armies is to
make them unnecessary.
The way to
do this is to organize and
discipline our militia,
so as to render them
capable of defending
the country against external
invasions and internal
insurrections. But it is urged
that abuses may happen. How is
it possible to answer objections
against the possibility of
abuses? It must strike every
logical reasoner, that these
cannot be entirely provided
against.I really thought that
the objection in the militia
was at an end. Was
there ever a constitution, in
which if authority was vested, it
must not have been executed
by force, if resisted?
Was it not in the contemplation
of this state, when contemptuous
proceedings were expected, to
recur to something of this kind?
How is it possible to have a
more proper resource than this?
That the laws of every country
ought to be executed, cannot be
denied. That force must be used
if necessary, cannot be denied.
Can any government be
established, that will answer
any put, pose whatever,unless
force be provided for
executing its {414} laws? The
Constitution does not say that
a standing army shall be
called out to execute
the laws. >>>
Is not this a more proper
way? The militia
ought to be called forth to
suppress smugglers. Will
this be denied? The case
actually happened at Alexandria.
There were a number of
smugglers, who were too
formidable for the civil power
to overcome. The military
quelled the sailors, who
otherwise would have perpetrated
their intentions. Should a
number of smugglers have a
number of ships, the militia
ought to be called forth to
quell them. We do
not know but what there may be a
combination of smugglers in
Virginia hereafter. We all
know the use made of the Isle of
Man. It was a general depository
of contraband goods. The
Parliament found the evil so
great, as to render it
necessary to wrest it out of the
hands of its possessor.
The
honorable gentleman says that it
is a government of force. If he
means military force, the clause
under consideration proves
the contrary. There
never was a government without
force. What is the meaning of
government? An institution to
make people do their duty
(APP
warning note of how this
founder perceived government -
note the differences of the two
Patrick Henry presents
government only by consent,
James Madison, an institution
once established to make
people do their "duty"...
defined by who?).
A government leaving it to a man
to do his duty or not,
as he pleases, would be a new
species of government
(APP note, which in the
end we have in the Constitution
and Bill of Rights as the
division of powers are defined,
and both fears even the
following are resolved for the
greater part from the debates),
or rather no government at all.
The ingenuity of the gentleman
is remarkable in introducing the
riot act of Great Britain. That
act has no connection, or
analogy, to any
regulation of the
militia; NOR
is
there any thing in
the Constitution to
warrant the general
government to make such an
act. It never
was a complaint, in Great
Britain, that the militia could
be called forth. If riots should
happen, the militia are proper
to quell it, to prevent a resort
to another mode. As to the
infliction of ignominious
punishments, we have no ground
of alarm, if we consider the
circumstances of the people at
large. There will be no
punishments so ignominious as
have been inflicted already. The
militia law of every state to
the north of Maryland is less
rigorous than the particular law
of this state. If a change be
necessary to be made by the
general government, it will be
in our favor. I think that the
people of those states would not
agree to be subjected to a more
harsh punishment than their own
militia laws inflict.
An
observation fell from a
gentleman, on the same side
with myself, which deserves
to be attended to.*** If
we be dissatisfied with the
national government, if we
"should
>>>choose to
renounce {415} it", "this is
an additional safeguard to
our defence". I
conceive that we are peculiarly
interested in giving the general
government as extensive means as
possibleto
protect us. If there be
a particular discrimination
between places in America, the
Southern States are, from
their situation and
circumstances, most interested
in giving the national
government the power of protecting
its members.
[Here Mr.
Madison made some other
observations, but spoke so very
low, that his meaning could not
be comprehended.]
----------------------------------------------------
APP
Study Note on
Madison's statement: "What is
the meaning of government? An
institution to make people do
their duty".
This
illustrates one of the major
differences between federalism
by a federalist, and true
freedom as defined.
Madison on "this
point" is wholly incorrect
in regards to the Absolute
Rights of the Colonists 1772,
(however correct in all tyrannical
governments) and is proven
by long standing documents
regarding laws on freedom and
liberty. The closing statement
on this page shows the dismay
regarding these past rights by Mr.
NICHOLAS in that
such Rights "had been
frequently violated with
impunity." A
condition that had been the aim
of correcting by the Declaration
of Independence, and the
purpose of defending the
retainment of such protections
by the Anti Federalists
when debating the Constitution -
resulting in the Bill of
Rights, which in fact
made us a new species of
government, as spoke
of by Madison, that now protects
freedoms throughout the world
because those Rights are not
violated with impunity;
and such care needs be taken to
make sure that they are never
treated in such a way.
1.) The Absolute Rights of
the Colonists:
"The Legislative has no
right to
absolute arbitrary power over
the lives and fortunes of the
people"
All Men have a Right to remain
in a State of Nature
as long as they please: And in
case of intollerable
Oppression, Civil or
Religious, to leave
the Society they belong to,
and enter into another.--
(this
removes force and establishes
CONSENT as the supreme;
This coincides with John
Locke #186; #190.
"The
Legislative cannot Justly
assume to itself a power to
rule by extempore arbitrary
decrees; but it is bound
to see that Justice is
dispensed, and that the rights
of the subjects be decided, by promulgated,
standing and known laws,
and authorized independent
Judges;" that is independent
as far as possible of Prince
or People.
2.) Declaration of
Independence:
That all men are
created equal; that they are
endowed by their Creator with
certain inalienable rights; that
among these are life, liberty,
and the pursuit of happiness.
That, to secure these
rights, governments
are instituted among
men, deriving their just powers
from the consent
of the governed;
3.) The Constitution:
Amendment IX: The enumeration
in the Constitution, of
certain rights,
shall not be
construed to deny or
disparage others retained
by the people.
Amendment X: The
powers not delegated to
the United States by the
Constitution, nor
prohibited by it to the States,
are reserved to
the States respectively,
or to the people.
Amendment XIII:
Section 1.Neither
slavery nor involuntary
servitude, "except"
as a punishment for crime
whereof the party shall have
been duly convicted, shall
exist within the
United States, or any
place subject to their
jurisdiction.
Section 2.Congress shall
have power to enforce this
article by appropriate
legislation.
4.) Declaration
of Independence:
that, whenever any
form of government
becomes destructive of these
ends (see), it is
the right of the people to alter
or to abolish it, and to
institute a new government,
laying its foundation on such
principles, and organizing its
powers in such
form, as to them
shall seem most likely
to effect their safety and
happiness.
Prudence, indeed, will dictate
that governments long
established should not be
changed for light and transient
causes; and accordingly all
experience hath shown that
mankind are more disposed to
suffer, while evils are
sufferable, than to right
themselves by abolishing the
forms to which they are
accustomed.
But when a long train of abuses
and usurpations, pursuing
invariably the same object,
evinces a DESIGN
to reduce them under absolute
despotism, it is their RIGHT,
it is their DUTY, to
throw off such government
and to provide new guards
for their future security.
APP:
Here we have the purpose of
a Free government is:
(numbers corresponding)
1.) Not to make anyone
do anything, but only
to see that "Justice" is
dispensed."Justice" keeps
one from doing something to
another, or punishes one when he
does do something to another, without
his consent.
Note: Do not
confuse this "duty"
mentioned here of arbitrary
state or federal law to
force service to the
country, with
enforcing laws on persons who
infringe against just and
necessary civil law; This is a separate
issue in the second
part, when one is
found taking "inalienable"
rights, property
and liberty from
another, as this has to
do with crime; In the first
part, forcing
someone to do their
duty at the beck
and call of the state
is a crime, as clearly defined
in the second part..
Justice has nothing to do
with making someone do
something, or do
something to someone else,
without their consent. That type
of action is defined as "Tyranny".
2.) If you can be made to
do anything, you have no
liberty, and without the ability
to consent, you have no freedom.
And I guarantee if someone is
"made" or forced to do "their
duty" by any government, they
will not be pursuing
happiness.... Which is an
inalienable right.
3.) Any Type of slavery
(voluntary or involuntary); or
Involuntary Servitude is
strictly prohibited. i.e. the
Draft or other forced service.
4.) There is the "DUTY",
and it is absolutely opposite
of Madison's statement. It
is the duty of any free
man or free state to throw out
any government that attempts to
"make" someone "do" anything
without their "consent".
Forcing someone to do something
that he does not want to do,
only seems reasonable or of
great reason to the one that is
doing the forcing, (whether a
government or person); And
by his (anyone's) actions he
defines himself as a Tyrant.
Note: "Essential natural
rights" cannot be even
voluntarily given up to others
(i.e. voluntary slavery).
A few years later James
Madison had to
change his opinion on his great
optimisms (or naivety), when he
came to realize the dangers
spoke of by Patrick Henry and
George Mason were quite
real; To his credit,
Madison left the federalists to
join Thomas Jefferson not long
after the Constitution was
ratified; This was to write with
Jefferson the
Virginia and Kentucky
Resolutions (which
see) in
response and opposition to the
Alien and Sedition Act. These
resolutions clarified the powers
of the states over the federal
government, and the very limited
delegated power of the federal
government.
A "just" war will find all
the needed volunteers.
Note also, that the
"MILITIA" was defined by
James Madison as "officered
by men chosen among
themselves" not by
governments; and as an OPPOSING
FORCE against their "own"
standing army. This
follows George Mason's
definition of "all people" and
concerns of an elite military,
no longer made of all citizens
of the general populous.
Here is how one of James
Madison's quotes describes
it:
"The
highest number to whicha standing
army can
be carried in any country
does not
exceed one
hundredth part of the souls,
or one twenty-fifth
(1/25th) part of the number
able to bear arms This PORTION would NOT
yield, in the United
States, an army of more than
twenty-five or thirty thousand
men.
To "these" would be "OPPOSED"
(APP:
indicating that the "militia" is
to be a "OPPOSING FORCE"
to their standing army; as
well as that of foreign enemies)
a MILITIA
amounting to near half a million
"CITIZENS" with arms
in their"HANDS", >>>>"officered
by men chosen from "AMONG
THEMSELVES",
(APP: NOT
by government or the standing
army)
fighting for
"their" (the
citizen / militia's) common
liberties and united and
conducted by government"S"
possessing their (the
citizen / militia's) affections
and confidence. It may well be
doubted whether a militia thus
circumstanced could
ever be conquered by such a "proportion" of regular
troops (i.e.
standing army).
Besides the advantage of being
armed, it forms a barrier
against the "enterprises
of ambition", more
insurmountable than any which a
simple government of any form
can admit of.
The governments of Europe are
afraid to trust the "PEOPLE"
with arms. If they did, the
people would surely shake off
the yoke of tyranny, as America
did.
Let us
not insult the free and
gallant citizens of America
with the suspicion that they
would be less able to defend the
rights of which they
would be in actual
possession than the debased
subjects of arbitrary power
would be to rescue theirs
from the hands of their
oppressors."
(end APP)
------------------
Madison
continues:
An act
passed, a few years ago, in this
state, to enable the government
to call forth the militia to
enforce the laws when a powerful
combination should take place to
oppose them. This is the same
power which the Constitution is
to have. There is a great deal
of difference between calling
forth the militia, when a
combination is formed to prevent
the execution of the laws, and
the sheriff or constable
carrying with him a body of
militia to execute them in the
first instance; which
is a construction not
warranted by the clause. There is an
act, also, in this state,
empowering the officers of the
customs to summon any persons to
assist them when they meet with
obstruction in executing their
duty. This shows the necessity
of giving the government power
to call forth the militia when
the laws are resisted. It is a
power vested in every
legislature in the Union, and
which is necessary to every
government. He then moved that
the clerk should read those acts
which were accordingly read.
Mr.
GEORGE MASON asked
to what purpose the laws were
read. The objection was, that too much
power was given to Congress
power that would finally
destroy the state
governments more effectually
by insidious, underhanded
means, than such as
could be openly practiced.This,
said he, is the opinion
of many worthy men, not
only in this Convention,
but in all parts of America.These laws
could only show that the
legislature of this state could
pass such acts. He thought they
militated against the cession of
this power to Congress, because
the state governments could call
forth the militia when
necessary, so as to compel a
submission to the laws; and as
they were competent to it, Congress
ought not to have the power. The
meeting of three or four persons
might be called
an insurrection, and the militia
might be called out to disperse
them. He was not
satisfied with {416} the
explanation of the word "organization"
by the gentleman in the
military line, (Mr. Lee.)
He thought
they were not confined to
the technical explanation,
but that Congress could inflict
severe and ignominious
punishments on the (CIVILIAN)
militia, as a necessary
incident to the power of
organizing and disciplining
them. The gentleman had said
there was no danger, because the
laws respecting the militia were
less rigid in the other states
than this. This
was no conclusive argument. His
fears, as he had before
expressed, were, that grievous
punishments would be
inflicted, in order to render
the service disagreeable
to the (CIVILIAN) militia
themselves, and
induce them to wish its
abolition, which would
afford a PRETENCE for
establishing a standing army.
(APP Note: This has already
happened)
He was convinced the STATE
GOVERNMENT Sought to have
the control of the militia, except
when they were absolutely
necessary for general
purposes. The
gentleman had said that they
would be only subject to martial
law when in actual service.
He
demanded what was to hinder
Congress from >>>inflicting
it always, and making a
>>>general law
for the purpose.
(APP Note: And This
has already happened)
If so, said he, it
must finally produce, most
infallibly, the annihilation
of the state governments. These were
his apprehensions; but he prayed
God they might be groundless.
Mr.
MADISON replied, that the
obvious explanation was, that
the STATES were to
appoint the officers, and
govern all the militia except
that part which was
called into the actual
service of the United States.
(APP
Note: The States do not now
appoint officers - Read
James Madison's Federalist
#46 - Citizens are to
appoint their own officers)
He asked, if power were given to
the general government, if we
must not give it executive power
to use it. The vice of the
old system was, that Congress
could not execute the powers
nominally vested in them.
If the contested clause were
expunged, this system would have
nearly the same defect.
Mr.
HENRY wished to know
what
authority the state governments
had over the militia.
Mr.
MADISON answered,
that the
state governments might do
what they thought proper
with the militia, when they
were not in the actual
service of the United States. They might
make use of them to suppress
insurrections, quell riots, and
call on the general government
for the militia of any other
state, to aid them, if
necessary.
Mr.
HENRY replied that,
as the clause expressly vested
the general government with
power to call them out to
suppress {417} insurrections, it
appeared to him, most decidedly,
that the power of suppressing
insurrections was exclusively
given to Congress. If it
remained in the states, it
was by implication.
Mr.
CORBIN, after
a short address to the chair, in
which he expressed extreme
reluctance to get up,
said, that all contentions on
this subject might be ended, by
adverting to the 4th
section of the 4th article,
which provides, "that the United
States shall guaranty to every
state in the Union a
republican form of
government, and shall protect
each of them against invasion,
and, on application of the
legislature, or of the
executive, (when the
legislature cannot be
convened,) against domestic
violence. "He thought
this section gave the
states power
to use their own militia, and
call on Congress for the militia
of other states. He
observed that our
representatives were to return
every second year to mingle with
their fellow-citizens. He asked,
then, how, in the name of God,
they would make laws to destroy
themselves.The gentleman had
told us that nothing could be
more humiliating than that the
state governments could
not control the general
government. He thought the
gentleman might as well have
complained that one county
could not control the state at
large. Mr. Corbin then
said that all confederate
governments had the care of
the national defence, and
that Congress ought to have it.
Animadverting on Mr. Henry's
observations, that the French
had been the instruments of
their own slavery, that the
Germans had enslaved the
Germans, and the Spaniards the
Spaniards, &c., he asked if
those nations knew any thing of
representation. The
want of "this knowledge" was
the "principal" cause of
their bondage.
(APP
Note: This is the
importance of education of
freedom's foundations,
Laws of Nature, John Locke
on Civil Government,
Samual Adams - The
absolute Rights of the
Colonists, etc.)
He concluded by observing that
the general government had no
power but such as the state
government had, and that
arguments against the one held
against the other.
Mr.
GRAYSON, in reply to
Mr. Corbin, said he was
mistaken when he produced the
4th section of the 4th
article, to prove that the
state governments had a right
to intermeddle with the
militia. He was of opinion
that a previous application must
be made to the federal head, by
the legislature when in session,
or otherwise by the executive
of any state, before they
could interfere with the
militia. In his opinion, no
instance could be adduced
where the states could employ
the militia; for, in all the
cases wherein they could be
{418} employed, Congress had
the exclusive direction and
control of them. Disputes,
he observed, had happened in
many countries, where this power
should be lodged. In
England, there was a dispute
between the Parliament and King
Charles who should have
power over the militia. Were
this government well organized,
he would not object to giving it
power over the militia. But as
it appeared to him to be
without checks, and
to tend to the formation of
an aristocratic body,
(APP
Note: An "aristocratic
body" is what we have in
Washington DC Today.)
he
could not agree to it. Thus
organized, his imagination did
not reach so far as to know
where this power should be
lodged. He
conceived the state
governments to be at the
mercy of the generality.
He wished to be open to
conviction, but he could see no
case where the states could
command the militia. >>>He
did not believe that it
corresponded with the
intentions of those who
formed it, and it was
altogether without an
equilibrium. He humbly
apprehended that the power of
providing for organizing and
disciplining the militia,
enabled the government to make
laws for regulating them, and
inflicting punishments for
disobedience, neglect, &c.
Whether it would be the spirit
of the generality to lay unusual
punishments, he knew not; but he
thought they had the power, if
they thought proper to exercise
it. He thought that, if
there was a constructive
implied power left in the
states, yet, as the
line was not clearly marked
between the two governments,
it would create differences.He
complained of the
uncertainty of the
expression, and wished it to
be so
clearly expressed that
the people might see where
the states COULD
interfere.
As
the exclusive power of arming,
organizing, was given to
Congress, they
might entirely neglect them;
or they might be armed in one
part of the Union, and totally
neglected in another. This he
apprehended to be a probable
circumstance. In this he might
be thought suspicious; but he
was justified by what bad
happened in other countries. He wished
to know what attention had been
paid to the militia of Scotland
and Ireland since the union, and
what laws had been made to
regulate them. There is, says
Mr. Grayson, an excellent
militia law in England, and such
as I wish to be established by
the general government. They
have thirty thousand select
militia in England. But the
militia of Scotland and Ireland
are neglected. I
see the necessity of the
concentration of the forces of
the Union. {419} I acknowledge
that militia are the best means
of quelling insurrections, and
that we have an advantage over
the English government, for
their regular forces answer the
purpose. But I
object to the want of checks, and
a line
of discrimination
between the state
governments and the
generality
(proposed US Government).
Mr.
JOHN MARSHALL asked
if gentlemen were serious when
they asserted that, if the state
governments had power to
interfere with the militia, it
was by implication. If they
were, he asked the
committee whether the least
attention would not show
that they were mistaken.
The state
governments DID NOT
derive their powers from the
general government; but each
government derived its
powers from the people,
and each was to act
according to the powers
given it. Would
any gentleman deny this? He demanded
if powers not given were
retained by implication. Could
any man say so? Could any
man say that this power was
not retained by the states,
as they had not given it
away? For, says he,
does not a power remain till
it is given away? The state
legislatures had power to
command and govern their
militia before, and have it still,
undeniably, unless
there be something in this
Constitution that takes
it away.
For Continental
purposes
Congress may call forth the
militia, as to suppress
insurrections and repel
invasions. But
the power given to the
states by the people is "NOT
taken away"; for the Constitution
does NOT say so. In the
Confederation Congress had this
power; but the
state legislatures had it "also". The power
of legislating given them within
the ten miles square is exclusive
of the states, because it is expressed
to be exclusive. The
truth is, that when power is
given to the general
legislature, if it was in the
state legislature before, both
shall exercise it; unless there
be an incompatibility in the
exercise by one to that by the
other, or negative words
precluding the state governments
from it. But
there are NO negative words
here. It rests,
therefore, with
the STATES.
To me it
appears, then, unquestionable
that the state
governments can call
forth the militia, in case the
Constitution should be adopted,
in the same
manner as they
could have done before its
adoption.
Gentlemen have said that the
states cannot defend themselves
without an application to
Congress, because
"Congress" can interpose!
Does
not every man feel
arefutation of the argument
in his own breast?
I will show {420} that
there could NOT be a
combination, between those who
formed the Constitution, to
take away this power.
All
the restraints intended
to be laid on the state
governments (besides where an
exclusive power is expressly
given to Congress) are contained
in the 10th section of the
1st article. This power is
NOT included in
the restrictions in that
section. But what excludes every
possibility of doubt, is
the last part of it that "no
state shall engage in war,
unless actually invaded,
or in such imminent danger as
will not admit of delay." When
invaded, they "CAN" engage
in war, as also when
in "imminent danger".
This clearly
proves that the
states can use
the militia when they find
it necessary. The worthy
member last up objects to the
Continental government's
possessing the power of
disciplining the militia, because,
though all its branches be
derived from the people, he
says they
will form an aristocratic
government, unsafe and unfit
to be trusted.
Mr.
GRAYSON answered,
that he only said it was so
constructed as
to "form" a great aristocratic"body".
-----------
(APP
Note: An
"aristocratic
body" is what we
have in Washington
DC Today.)
APP Note:
i.e. a "Mixed Monarchy"
as warned again later in the Virginia
and Kentucky Resolutions. This is
what we have today, and was no
where intended by the
Founders;
The dangers of "large"
republics were warned of
by Charles
Montesquieu (1750), Bill
Yates (Brutus) and Samuel
Adams who relates the dangers
of "DISTANT
LEGISLATURES".
BRUTUS (Robert Yates):
"...History furnishes no
example of a free republic,
any thing like the extent of the
United States.
The Grecian republics were of
small extent; so also was that
of the Romans.
Both of these, it is true, in
process of time, extended
their conquests over
large territories of country;
and the consequence
was, that
their governments were
"CHANGED"
FROM that of free governments
to those
of the MOST "TYRANNICAL" that
ever existed in the world."...
APP: This
follows Charles Montesquieu
(1750) understanding of large
republics, and considered by
Hamilton (Federalist #9)
indicating the necessity of a
CONFEDERATE REPUBLIC
(of FREE and INDEPENDENT
STATES), with a VERY LIMITED
Federal Republic "COMPACT";
Which as James Madison
indicates in this day
convention as well as in the
Virginia and Kentucky
Resolutions, that if a state
feels ANY danger from the
Federal Government, the State
could"refuse
it altogether".
See also
Republics
and Representation.
----------
Mr.
MARSHALL replied,
that he was not certain whether
he understood him; but he
thought he had said so. He
conceived that, as the
government was drawn from
the people, the feelings
and interests of the people
would be attended to,
and that we should be safe in
granting them power to regulate
the militia. When the government
is drawn from the people,
continued Mr. Marshall, and
depending on the people for its
continuance,oppressive
measures will not be
attempted, as they
will certainly draw on their
authors the resentment
of those on whom they
depend. On this
government, thus
depending on ourselves
for its existence, I will
rest my safety,
notwithstanding the danger
depicted by the honorable
gentleman. I cannot
help being surprised that the
worthy member thought this power
so dangerous. What government is
able to protect you in time of
war? Will any state depend on
its own exertions? The
consequence of such dependence,
and withholding this power from
Congress, will be, that state
will fall after state, and be a
sacrifice to the want of power
in the general government. United
we are strong, divided we
fall. Will you prevent the
general government from drawing
the militia of one state to
another, when the consequence
would be, that every state must
depend on itself? The enemy,
possessing {421} the water, can
quickly go from one state to
another. No state will spare to
another its militia, which it
conceives necessary for itself.
It requires a Superintending
power, in order to call forth
the resources of all to protect
all. If this be not done, each
state will fall a sacrifice.
This system merits the highest
applause in "this"
respect. The
honorable gentleman said that a
general regulation may be made
to inflict punishments. Does he
imagine that a militia law is to
be ingrafted on the scheme of
government, so as to render it
incapable of being changed? The
idea of the worthy member
supposes that men renounce their
own interests. This would
produce general inconveniences
throughout the Union, and would
be equally opposed by all the
states. But the worthy member
fears, that in one part of the
Union they will be regulated and
disciplined, and in another
neglected. This danger is
enhanced by leaving this power
to each state; for some states
may attend to their militia, and
others may neglect them.
If
Congress neglect our militia
(citizens), "we
can arm them OURSELVES".
CANNOT Virginia "import
arms?> >Cannot
she put them into the hands
of "HER" militia-men?
He then concluded
by observing, that
the power of governing the
militia was NOT
vested in the states by
implication, because, being "possessed
of it" > "antecedent
to the adoption of the
government, and "not
being divested of it" by
any grant or restriction in
the Constitution, they must
necessarily be as "FULLY
possessed of it as ever they
had been. > And
it could NOT be said that
the states derived ANY
powers from that (the
federal government or
Constitution) system, "but
RETAINED them,"
>>>>>>>>
"though not acknowledged in
ANY part of it".
APP:
i.e. as Nicholas presents in
the last paragraphs of this
day convention; These are "PREEXISTING
RIGHTS" in the "PEOPLE..."
APP
Note: This shows the missuse
of the commerse clause which
the Federal Government has
"arrogated a power which is
prohibited"; That is, they
have created a "PRETENCE of
authority" by which to
prohibit states and the
people from importing their
own arms to equip their own
citizen militias; i.e. ALL
people.
Mr.
GRAYSON acknowledged
that all power was drawn from
the people. But he could see
none of those checks which ought
to characterize a free
government. It had not
such checks as even the
British government had. He
thought it so organized as to "form"
an aristocratic
body. If we
looked at the democratic
branch, and
the great extent of country, he
said, it must be considered, in
a great degree, to be an aristocratic
representation.
As they were elected with
craving appetites, and wishing
for emoluments, they
might unite with the other
two branches.
They might give reciprocally
good offices to one another,
and mutually
protect each other;
for he considered them
all as united in interest,
and as but one branch. There
was no
check to prevent such
{422} a combination;
nor, in cases of concurrent
powers, was there a line
drawn to prevent
interference between the
state governments
and the generality.
Mr.
HENRY still retained his
opinion, that the states had
no right to call forth the
militia to suppress
insurrections, (APP
note: This statement is in
reference to the document) But the
right interpretation (and such
as the nations of the earth had
put upon the concession of
power) was that, when power was
given, it was given exclusively.
He appealed to the committee, if
power was not confined in the
hands of a few in almost
all countries of the world. He
referred to their candor,
if the construction of conceded
power was not an exclusive
concession, in nineteen
twentieth parts of the world.
The nations which retained their
liberty were comparatively
few. America would
add to the number of the
oppressed nations, if she
depended on constructive
rights and argumentative
implication. That the
powers given to Congress were
exclusively given, was
very obvious to him.
The rights which the states
had must be founded on the
restrictions on Congress.
He asked, if the doctrine which
had been so often circulated,
that rights not given
were retained, was true, why
there were negative clauses
to restrain Congress.
He told gentlemen that
these clauses were
sufficient to shake all
their implication; for, says
he, if Congress had no power
but that given to them, why
restrict them by negative
words? Is not
the clear implication this
that, if
these restrictions were not
inserted, they could have
performed what they
prohibit?
The worthy
member had said that
Congress ought to have power to
protect all, and had given this
system the highest
encomium. But he insisted that
the power over the militia
was concurrent. To
obviate the futility of
this doctrine, Mr. Henry
alleged that it was not
reducible to practice.
Examine it, says he; reduce it
to practice. Suppose an
insurrection in Virginia, and
suppose there be danger
apprehended of an insurrection
in another state, from the
exercise of the government; or
suppose a national war, and
there be discontents among the
people of this state, that
produce, or threaten, an
insurrection; suppose Congress,
in either case, demands a number
of militia, will they not
be
obliged to
go?Where
are your reserved rights,
when your militia go to a
neighboring state? Which
call is to be obeyed, the
congressional call, or the
call of the state
legislature? The call of
Congress must be obeyed. I need
not remind this {423} committee
that the sweeping
clause will
cause their demands to be
submitted to. This
clause enables them"to
make all laws which shall be
necessary and proper to
carry into execution all the
powers vested by this
Constitution in the
government of the United
States, or in any department
or officer thereof." Mr.
Chairman, I will turn to another
clause, which relates to the
same subject, and tends to show
the fallacy of their
argument.
The 10th
section of the 1st article, to
which reference was made by
the worthy member, militates
against himself. It says,
that "no state shall engage in
war, unless actually invaded."
If you give this clause a fair
construction, what is the true
meaning of it? What does this
relate to? Not domestic
insurrections, but war. If
the country be invaded, a
state may go to war,
but cannot suppress
insurrections. If there should
happen an insurrection of
slaves, the country cannot be
said to be invaded. They cannot,
therefore, suppress it
without the interposition of
Congress. The 4th section of
the 4th article expressly
directs that, in case of
domestic violence,
Congress shall protect the
states on application of the
legislature or executive; and
the 8th section of the 1st
article gives Congress power to
call forth the militia to quell
insurrections: there cannot,
therefore, be a concurrent
power.The
"state" legislatures ought
to have power to call forth
the efforts of the militia, when
necessary.
Occasions for calling them
out may be urgent, pressing,
and instantaneous. The
states cannot now call them,
let an insurrection be ever
so perilous, without an
application to Congress. So
long a delay may be fatal.
There are
three clauses which prove,
beyond the possibility of doubt,
that Congress, and Congress
only, can call forth the
militia. (APP
Note: Speaking of the
document) The
clause giving Congress power to
call them out to suppress
insurrections, that which
restrains a state from engaging
in war except when actually
invaded; and that which requires
Congress to protect the states
against domestic violence, render
it impossible that a state
can have power to intermeddle
with them. Will not
Congress find refuge for
their actions in these
clauses? With
respect to the concurrent
jurisdiction, it is a
political monster of absurdity.We
have passed that clause
which gives Congress an
unlimited authority over the
national wealth; and here is
an unbounded control over
the national strength.
Notwithstanding {424} this
clear, unequivocal
relinquishment of the power
of controlling the militia,
you say the states retain
it, for the very purposes
given to congress. Is it
fair to say that you give the
power of arming the militia,
and at the same time to say
you reserve it? This great
national government ought
not to be left in this
condition.If it be, it
will terminate in the
destruction of our
liberties.
Mr.
MADISON. Mr.
Chairman, let me ask this
committee, and the honorable
member last up, what we
are to understand from this
reasoning. The power must be
vested in Congress, or in
the state governments; or there
must be a division or
concurrence. He is against
division. It is a political
monster. He will not give it
to Congress for fear of
oppression. Is it to be vested
in the state governments?
If so, where is the provision
for general defence? If ever
America should be
attacked, the states would fall
successively. It will prevent
them from giving aid to
their sister states; for, as
each state will expect to be
attacked, and wish to
guard against it, each will
retain its own militia for its
own defence. Where is this
power to be deposited, then,
unless in the general
government, if it be dangerous
to the public safety to give it
exclusively to the states?
If it must be divided, let him
show a better manner of
doing it than that which
is in the Constitution. I cannot
agree with the other honorable
gentleman, that there is no
check. There is
a powerful check in
that paper.The STATE
governments are to govern the
militia when
not called forth for general
national purposes; and
Congress is to govern such
part ONLY as may be in
the actual
service of the
Union. Nothing can be more
certain and positive than
this. It expressly empowers
Congress to govern them when
in the service of the
United States. It
is, then, "clear" that the
STATES govern them "when
they are not".
(APP
Note: The danger
that presents itself now, is
that the state "militias"
once controlled by the state and
it's Governor when not in
foreign service have been
simulated into the standing
army as a "National
Guard" so that all
military men are "always
in the service of the United
States" - where are
our independent state militias?
Where is our checks to
power clearly intended
by the founders to protect each
independent state, and if
necessary, against the
generality? Gone; but not
prohibited to reform
and reinstitute by the
states themselves should
they choose, as clearly
indicated by these intents
being a right
of the state to arm,
import arms, and discipline
its own militias "outside"
the federal government. - See
again John Marshall's
statements above, George
Nicholas and Mr. Pendleton's
Statements below)
"With
respect to suppressing
insurrections, I say that those
clauses which were mentioned by
the honorable gentleman are
compatible with a concurrence
of the power. By the
first, Congress is to call them
forth to suppress insurrections,
and repel invasions of
"foreign powers". A
concurrence in the former case
is necessary, because a whole
state may be in insurrection
against the Union. What has
passed may perhaps justify this
apprehension. The safety of the
Union and particular states
requires that the general
government should have power
to {425} repel "foreign"
invasions. The 4th
section of the 4th article is
perfectly consistent with the
exercise of the power by the
states. The words are, "The
United States shall guaranty
to every state in this Union a
republican form of government,
and shall protect each of them
against invasion, and, on
application of the
legislature, or of the
executive, (when the
legislature cannot be
convened,) against domestic
violence." The word
invasion here, after power had
been given in the former clause
to repel invasions, may be
thought tautologous, but it
has a "DIFFERENT MEANING
from the other". This clause
speaks of a particular
state. It
means that it shall be
protected from invasion by
"other states". A
republican government is to be
guarantied to each state, and
they are to be protected
from invasion from "other
states", as well
as from foreign
powers; and, on
application by the legislature
or executive, as the case may
be, the militia of the other
states are to be called to
suppress domestic
insurrections. Does
this bar the states from
calling forth their own
militia? - "NO"
-; but it
gives them a supplementary security to
suppress insurrections and
domestic violence.
The other
clause runs in these words: "No
state shall, without the
consent of Congress, lay any
duty on tonnage, keep troops or
ships of war in time of peace,
enter into any agreement or
compact with another state, or
with a foreign power, or engage in
war, unless actually
invaded, or in such imminent
danger as will not admit of
delay."
They are restrained from making
war, unless invaded,
or in imminent danger.When
in such danger, they
are "not
restrained". I can
perceive no competition in
these clauses. They cannot
be said to be repugnant to a
concurrence of the power. If we
object to the Constitution in
this manner, and consume our
time in verbal criticism, we
shall never put an end to the
business.
Mr.
GEORGE MASON. Mr.
Chairman, a worthy member has
asked who are the militia, if
they be not the people
of this country, and if we are
not to be protected from the
fate of the Germans, Prussians,
by our representation? I ask, Who are the
militia? They consist now of the
"whole
people", except a
few public officers. But I
cannot say who will be the
militia of the future day. If that
paper on the table gets no
alteration, the militia
of the future day may not
consist of all classes, high
and low, and {426} rich and
poor; but
they may be confined to the
lower and middle classes of
the people, granting
exclusion to the higher
classes of the people. If we
should ever see that day, the
most ignominious punishments and
heavy fines may be expected.
Under the present government,
all ranks of people are subject
to militia duty. Under such a
full and equal representation as
ours, there can be no
ignominious punishment
inflicted. But under this
national, or rather
consolidated government, the
case will be different. The
representation being so
small and inadequate, they
will have no fellow-feeling
for the people.They may
discriminate people in their
own predicament, and exempt
from duty all the officers and
lowest
creatures of the national
government. If there
were a more particular
definition of their powers, and
a clause exempting the militia
from martial law except when in
actual service, and from fines
and punishments of an unusual
nature, then we might expect
that the militia would be
what they are.But, if
this be not the case, we
cannot say how long all
classes of people will be
included in the militia. There
will not be the same reason to
expect it, because
the government will be
administered by different
people. We
know what they are now, but
know not how soon they may
be altered.
Mr.
GEORGE NICHOLAS.
Mr. Chairman, I feel
apprehensions lest the subject
of our debates should be
misunderstood. Every one wishes
to know the true meaning of the
system; but I fear those
who hear us will think we are
captiously quibbling on
words. We have been told,
in the course of this business,
that the government will
operate like a screw. Give me
leave to say that the exertions
of the opposition are like
that instrument. They catch at
every thing, and take it into
their vortex. The worthy
member says that this government
is defective, because it
comes from the people. Its
greatest recommendation, with
me, is putting the power
in the hands of the people. He
disapproves of it because it
does not say in what
particular instances the militia
shall be called out to
execute the laws. This is
a power of the Constitution, and
particular instances must
be defined by the legislature.
But, says the worthy member,
those laws which have been
read are arguments against the
Constitution, because they show
that the states are now in
possession of the power, and
competent to its execution.
{427} Would you leave this power
in the states, and by that means
deprive the general government
of a power which will be
necessary for its existence? If
the state governments find this
power necessary, ought not the
general government to have a
similar power? But, sir, there
is no state check in this
business. The gentleman near
me has shown that there is a very
important check.
Another
worthy member says there
is no power in the states to
quell an insurrection of slaves.
Have they it now? If they have,
does the Constitution take it
away? If it does, it must be in
one of the three clauses which
have been mentioned by the
worthy member. The first
clause gives the general
government power to call them
out when necessary. Does
this take it away from the
states? > NO >. But it
gives an additional
security; for, besides
the power in the state
governments to > use
their "own" militia >, it will be
the duty of the general
government to aid
them with the strength of the
Union when called for.> NO
part > of this
Constitution can show that
this power is taken away.
But an
argument is drawn from
that clause which says "that no
state shall engage in war unless
actually invaded, or in
such imminent danger as will not
admit of delay." What does
this prohibition amount to? It
must be a war
with a FORIEGN ENEMY that
the states are prohibited
from making; for the exception
to the restriction proves it.
The restriction includes ONLY
OFFENSIVE hostility, as they
are at
liberty to
engage in war when invaded,or
in imminent danger.
They are,
therefore, NOT
restrained from quelling
domestic insurrections, which
are totally different
from making war with a foreign
power. But the
great thing to be dreaded is
that, during an insurrection,
the militia will be called out
from the state. This is his kind
of argument. Is it
possible that, at such a
time, the general government
would order the militia to be
called? It is a groundless
objection, to work on
gentlemen's apprehensions within
these walls. As to the 4th
article, it was introduced
wholly for the particular
aid of the states. A
republican form of government is
guarantied, and protection is
secured against invasion and
domestic violence on
application. Is not
this a guard as strong as
possible? >>>Does
it not "exclude the
unnecessary interference of
Congress" in business of
this sort?
The
gentleman over the way cannot
tell who will be the {428}
militia at a future day, and
enumerates dangers of
select militia. Let me attend to
the nature of gentlemen's
objections. One objects
because there will be select
militia; another objects
because there will be no
select militia; and yet both
oppose it on these
contradictory principles.
If you deny the general
government the power of
calling out the militia, there
must be a recurrence to a
standing army. If you are
really jealous of your
liberties, confide in
Congress.
(APP
Note: After "Confiding in
Congress", Congress "Back
Stabbed" the States by
creating solely a standing
Army - The National Guard is
not the militia of the whole
people or a Militia of the
State but a Select standing
military ultimately controlled
by a federal congress not
local state governments)
Mr.
MASON rose,
and said that he was totally
misunderstood. The
contrast between his friend's
objection and his was
improper. His friend
had mentioned the propriety of
having select militia,
like those of Great Britain,
who should be "more
thoroughly exercised than
the militia at large could
possibly be". But he,
himself, had not spoken
of a selection of militia,
but of the exemption
of the highest classes of the
people from militia service; which
would justify apprehensions
of severe and ignominious
punishments.
Mr.
NICHOLAS wished to
know whether the representatives
of the people would consent
to such exemptions, as every
man who had twenty-five acres
of land could vote for a
federal representative.
Mr. GRAYSON.
Mr. Chairman, I conceive that
the power of providing and
maintaining a navy is at
present dangerous, however
warmly it may be urged by
gentlemen that America
ought to become a maritime
power. If we once give such
power, we put it in the hands of
men whose interest it will be to
oppress us. It will also
irritate the nations of Europe
against us. Let us consider the
situation of the maritime powers
of Europe: they are separated
from us by the Atlantic
Ocean. The riches of all those
countries come by sea. Commerce
and navigation are the
principal sources of their
wealth. If we become a maritime
power, we shall be able to
participate in their most
beneficial business. Will
they suffer us to put
ourselves in a condition to
rival them? I believe the
first step of any
consequence, which will be made
towards it, will bring war
upon us. Their ambition
and avarice most powerfully
impel them to prevent our
becoming a naval nation. We
should, on this occasion,
consult our ability. Is there
any gentleman here who can say
that America can support a navy?
The riches of America are not
sufficient to bear the enormous
expense it must certainly
occasion. I may be supposed to
exaggerate, {429} but I leave it
to the committee to judge
whether my information be right
or not.
It is said that
shipwrights can be had on
better terms in America than in
Europe; but necessary
materials are so much
dearer in America than in
Europe, that the aggregate sum
would be greater. A
seventy-four gun ship will cost
you ninety-eight thousand
pounds, including guns,
tackle, &c. According to the
usual calculation in
England, it will cost you
the further sum of forty-eight
thousand pounds to mail
it, furnish provisions,
and pay officers and men. You
must pay men more here than in
Europe, because, their
governments being arbitrary,
they can command the services
of their subjects without an
adequate compensation; so
that, in all, the expenses of
such a vessel would be one
hundred and forty thousand
pounds in one year. Let
gentlemen consider, then, the
extreme difficulty of supporting
a navy, and they will concur
with me, that America cannot do
it. I have no objection to such
a navy as will not excite the
jealousy of the European
countries. But I would have the
Constitution to say, that no
greater number of ships should
be had than would be sufficient
to protect our trade. Such a
fleet would not, probably,
offend the Europeans. I am not
of a jealous disposition; but
when I consider that the welfare
and happiness of my country are
in danger, I beg to be excused
for expressing my apprehensions.
Let us consider how this navy
shall be raised. What would be
the consequence under those
general words, "to provide and
maintain a navy"? All the
vessels of the intended fleet
would be built and equipped in
the Northern States, where they
have every necessary material
and convenience for the purpose.
Will any gentleman say that any
ship of war can be raised to the
south of Cape Charles? The
consequence will be that the
Southern States will be in the
power of the Northern
States. (APP Note:
An early warning)
We should be
called upon for our share
of the expenses, without having
equal emoluments. Can it
be supposed, when this
question comes to be agitated in
Congress, that the Northern
States will not take such
measures as will throw as much
circulating money among
them as possible, without any
consideration as to the other
states? If I know the
nature of man, (and I believe I
do,) they will have no
consideration for us. But,
supposing it were not so,
America {430} has nothing at all
to do with a fleet. Let us
remain for some time in
obscurity, and rise by degrees.
Let us not precipitately provoke
the resentment of the maritime
powers of Europe. A
well-regulated militia
ought to be the defence of this
country. In some of our
constitutions it is said so.
This Constitution should have
inculcated the principle,
Congress ought to be undersome
restraint in this respect.
Mr. Grayson then added, that the
Northern States would be
principally benefited by having
a fleet; that a majority of the
states could vote the raising a
great navy, or enter into any
commercial regulation very
detrimental to the other states.
In the United Netherlands there
was much greater security, as
the commercial interest of no
state could be sacrificed
without its own consent. The
raising a fleet was the daily
and favorite subject of
conversation in the Northern
States. He apprehended that, if
attempted, it would draw us into
a war with Great Britain or
France. As the American fleet
would not be competent to the
defence of all the states,the
Southern States would be
most exposed. He
referred to the experience of
the late war, as a proof of what
he said. At the period the
Southern States were most
distressed, the Northern
States, he said,
were most happy. They had
PRIVATEERS
in abundance, whereas we
had but few. Upon the whole, he
thought we should depend on our
troops on shore, and that it was
very impolitic
to give this power to Congress
without any limitation.
Mr. NICHOLAS
remarked that the gentleman last
up had made two observations the
one, that we ought not to
give Congress power to raise a
navy; and the other, that we had
not the means of supporting it.
Mr. Nicholas thought it a false
doctrine. Congress, says
he, has a discretionary power to
do it when necessary. They are
not bound to do it in five or
ten years, or at any particular
time. It is presumable,
therefore, that they will
postpone it until it be
proper.
Mr. GRAYSON had
no objection to giving Congress
the power of raising such a
fleet as suited the
circumstances of the country.
But he could not agree to
give that unlimited power
which was delineated in that
paper.
Adverting to
the clause investing Congress
with the power of exclusive
legislation in a
district not
exceeding ten miles square, he said he
had before expressed his doubts
that this {431} district would
be the favorite of the
generality, and that it
would be possible for them
to give exclusive
privileges of commerce
to those residing within it. He had
illustrated what he said by
European examples. It might be
said to be impracticable to
exercise this power in this
manner. Among the various laws
and customs which pervaded
Europe, there were exclusive
privileges and immunities enjoyed in
many places. He
thought that this ought to
be guarded AGAINST; for should
such exclusive
privileges be granted
to merchants residing within the
"ten
miles square"
(Washington, DC),
it would be highly
injurious to the
inhabitants of OTHER
PLACES.
Mr.
GEORGE MASON thought
that there were few clauses in
the Constitution so
dangerous as that
which gave Congress "exclusive
power of legislation"
within "ten miles square"
(Washington,
DC).
Implication, he observed, was
capable of any extension,
and would probably be extended
to augment the congressional
powers. But here
there was no need of
implication. This clause gave
them an unlimited authority, in
every possible case, within that
district. This ten
miles square (Washington,
DC), says Mr.
Mason, may set at defiance
the laws of the surrounding
states, and may,
like the custom of the
superstitious days of our
ancestors, become the sanctuary
of the blackest crimes. Here
the federal courts are to sit.
We have
heard a good deal said of
"justice".
It has been
doubted whether jury trial
be secured in civil eases. But I
will suppose that we shall
have juries in civil
cases. What sort of a jury shall
we have within the ten miles
square?(Washington,
DC) The
immediate creatures of the
government. What chance will
poor men get, where Congress
have the power of legislating in
all cases whatever, and where
judges and juries may be under
their influence, and bound to
support their operations? Even
with juries the chance of
justice may here be very small,
as Congress have unlimited
authority, legislative,
executive, and judicial. Lest
this power should not be
sufficient, they have it in
every case. Now, sir, if
an attempt should be made to
establish tyranny over the
people, here are ten miles
square (Washington,
DC)
where the greatest offender
may meet protection.
If any of their officers, or
creatures, should attempt to
oppress the people, or should
actually perpetrate the blackest
deed, he has nothing to do
but get into the ten miles
square (Washington,
DC).
Why was this dangerous power
given? Felons may receive an
asylum there (Washington,
DC)
and in {432} their
strongholds. Gentlemen
have said that it was dangerous
to argue against possible abuse,
because there could be no power
delegated but might be abused. It
is an incontrovertible axiom,
that, when the dangers that
may arise from the abuse
are greater than the benefits
that may result from the use,
the
power ought to be withheld. I do not
conceive that this power is at
all necessary, though capable
of being greatly abused.
We are told
by the honorable gentleman
that Holland has its Hague. I
confess I am at a loss to know
what inference he could
draw from that observation. This
is the place where the
deputies of the United Provinces
meet to transact the public
business. But I do not
recollect that they have any
exclusive jurisdiction whatever
in that place, but are
subject to the laws of the
province in which the Hague is.
To what purpose the gentleman
mentioned that Holland has its
Hague, I cannot see.
Mr.
MASON then observed
that he would willingly give
them exclusive power, as far as
respected the police and
good government of the place
(Washington,
DC);
but he would give them no
more, because he thought it
unnecessary. He was very
willing to give them, in this as
well as in all other cases,
those powers which he thought
indispensably necessary.
Mr.
MADISON. Mr.
Chairman: I did conceive, sir,
that the clause under
consideration was one of
those parts which would speak
its own praise. It is hardly
necessary to say any thing
concerning it. Strike it out of
the system, and let me ask
whether there would not be much
larger scope for those dangers.
I cannot
comprehend that the power of legislating
over a "small district"
(Washington,
DC),
which CANNOT EXCEED ten
miles square (Washington,
DC), and
may not be more than ONE
MILE, will involve the
dangers which he apprehends. If there
be any knowledge in my mind of
the nature of man, I should
think it would be the last
thing that would enter into
the mind of any man to grant
"exclusive advantages", in a very
circumscribed district (Washington,
DC),
to the prejudice of
the community at large. We make
suppositions, and afterwards
deduce conclusions from them, as
if they were established
axioms. But, after all,
bring home this question to
ourselves. Is it probable
that the members from
Georgia, New Hampshire, will
concur to sacrifice the
privileges of their
friends? I believe that,
whatever state may become the
seat of the general {433}
government, it will become the
object of the jealousy and
envy of the other states.
Let me remark, if not already
remarked, that there must
be a cession, by particular
states, of the district to
Congress, and that the
states may settle the terms of
the cession. The states
may make what stipulation
they please in it, and,
if they apprehend ANY
danger, they may REFUSE it
ALTOGETHER. How could
the general government be
guarded from the undue influence
of particular states, or from
insults, without such exclusive
power? If it were at the
pleasure of a particular state
to control the session and
deliberations of Congress, would
they be secure from insults, or
the influence of such state? If
this commonwealth depended, for
the freedom of deliberation, on
the laws of any state where it
might be necessary to sit, would
it not be liable to attacks of
that nature (and with more
indignity) which have been
already offered to Congress?
With respect to the government
of Holland, I believe the States
General have no jurisdiction
over the Hague; but I have heard
that mentioned as a circumstance
which gave undue influence to
Holland over the rest. We must
limit our apprehensions to
certain degrees of probability.
The evils which they urge
must result from this clause
are extremely improbable; nay,
ALMOST impossible.
Mr.
GRAYSON. Mr.
Chairman, one answer which has
been given is, the improbability
of the evil that
it will never be attempted,
and
that it is "ALMOST"
impossible. This
will not satisfy us, when we
consider the great attachments
men have to a great and
"magnificent
capital". It would be
the interest of the citizens of
that district to aggrandize
themselves by every possible
means in their power, to the
great injury of the other
states. If we travel
all over the world, we shall
find that people have aggrandized
their own "capitals". Look at
Russia and Prussia. Every step
has been taken to aggrandize
their capitals. In
what light are we to consider
the ten
miles square (Washington,
DC)? It is not
to be a fourteenth state.
The inhabitants will in no
respect whatever be amenable to
the laws of any state. A clause
in the 4th article, highly
extolled for its wisdom, will be
rendered nugatory by this
exclusive legislation. This
clause runs thus: "No person
held to service or labor in one
state, under the laws thereof,
escaping into another, shall, in
consequence of any law or
regulation therein, be
discharged from such {434}
service or labor, but shall be
delivered up on the claim of the
party to whom such labor or
service may be due." Unless you
consider the ten miles square as
a state, persons bound to labor,
who shall escape thither, will
not be given up; for they are
only to be delivered up after
they shall have escaped into a
state. As my honorable friend
mentioned, felons, who shall
have fled from justice to the
ten miles square, cannot be
apprehended. The executive of a
state Is to apply to that of
another for the delivery of a
felon. He cannot apply to the
ten miles square. It was
often in contemplation of
Congress to have power of
regulating the police of the
seat of government; but
they NEVER had an idea of
exclusive legislation in all
cases. The power
of regulating the police and
good government of it (Washington,
DC) will
secure Congress against insults."What
originated the IDEA" of
the "exclusive
legislation" was, some
insurrection in Pennsylvania,
whereby Congress was insulted,
on account of which, it is
supposed, they left the state.
It is answered that the CONSENT
of the STATE
MUST be required, or
else they cannot have
such a district, or places
for the erecting of forts,
&c. But how much is already
given them! Look at the great
country to the north-west of the
Ohio, extending to and
commanding the lakes.
Look at the
other end of the Ohio,
towards South Carolina,
extending to the Mississippi.
See what these, in process of
time, may amount to. They
may grant
"exclusive privileges"
to any
particular part of which they
have the possession. But
it may be observed that
those extensive countries
will be formed into
independent
states, and that
their CONSENT will be
NECESSARY. To this I
answer, that they may
still grant such
"privileges"as, in
that country, are already
granted to Congress by the
states. The grants of
Virginia, South Carolina, and
other states, will be
subservient to Congress in
this respect. Of
course, it results from the
whole, that requiring
the consent of the states
will be "NO
GUARD" against this "ABUSE
of POWER".
[A desultory
conversation ensued.]
Mr.
NICHOLAS insisted
that as the state, within which
the ten miles square might be,
could prescribe the terms
on which Congress should hold
it, no danger could arise,
as no state would CONSENT
to injure itself:
there was the same {435}
security with respect to the
places purchased for the erection
of forts, magazines, &c.;
and as to the territory of the
United States, the power of
Congress only
extended to make needful
rules and regulations
concerning "it", without
prejudicing the claim of any
particular state, the
right of territory not being
given up; that the grant of
those lands to the United
States was for the general
benefit of all the states, and >not
to be perverted to their
prejudice>; that,
consequently, whether that
country were formed into new
states or not, the danger
apprehended could not take
place; that the seat of
government was to be still
a part of the STATE, and, as to
general regulations, was to be considered
as SUCH.
Mr.
GRAYSON, on the
other hand, contended that the ten
miles square (Washington,
DC) could not
be viewed as a state;
that the state within which it
might be would have no power of
legislating over it; that,
consequently, persons bound to
labor, and felons, might receive
protection there; that
"exclusive emoluments" might
he granted to those residing
within it; that the
territory of the United States,
being a part of no state or
states, might be appropriated to
what use Congress pleased, without
the consent of any state or
states; and that,
consequently, such
exclusive privileges and
exemptions might be granted, and such
protection afforded to
fugitives, within such places,
as Congress should think proper;
that, after mature
consideration, he could not find
that the ten miles square
was to be looked upon even as a
part of a state, but to be
totally independent of all,
and subject to the exclusive
legislation of Congress.
Mr.
LEE strongly
expatiated on the impossibility
of securing any human
institution from possible abuse.
He thought the powers
conceded in the paper on the
table not so liable to be
abused as the powers of the
state governments.
Gentlemen had suggested that the
seat of government would become
a sanctuary for state villains,
and that, in a short time, ten miles
square (Washington,
DC)
would subjugate a country
of eight hundred miles
square. This
appeared to him a most
improbable possibility; nay,
he might call it
impossibility. Were the
place crowded with rogues,
he asked if it would be an
agreeable place of residence
for, the members of the general
government, who were freely
chosen by the people and the
state governments. Would
the people be so lost to
honor and virtue, as to
select men who would
willingly {436} associate
with the most abandoned
characters? He thought
the honorable gentleman's
objections against remote
possibility of abuse went to
prove that government of no sort
was eligible, but that a state
of nature was preferable to a
state of civilization. He
apprehended no danger; and
thought that persons bound to
labor, and felons, could not
take refuge in the ten miles
square (Washington,
DC), or
other places exclusively
governed by Congress, because
it would becontrary to the
Constitution, and a palpable
USURPATION, to protect them.
Mr.
HENRY entertained
strong suspicions that great
dangers must result from the
clause (APP:
The Sweeping Clause -
Supremacy Clause) under
consideration. They were not
removed, but rather
confirmed, by the
remarks of the honorable
gentleman, in saying that it
was extremely improbable that
the members from New Hampshire
and Georgia would go and
legislate exclusively for the
ten miles square. If it
was so improbable, why ask
the power? Why
demand a power which
was not to be exercised? Compare
this power, says he, with the
next clause, which gives them
power to make all laws which
shall be necessary to carry
their laws into execution.
By this they have a right to pass
any law that may facilitate
the execution of their acts.
They have a right, by this
clause, to make a law that
such a district shall be set
apart for any purpose they
please, and that any man who
shall act contrary to their
commands, within certain tell
miles square, or any place they
may select, and strongholds,
shall be hanged without benefit
of clergy. If they think any law
necessary for their personal
safety, after perpetrating
the most tyrannical and
oppressive deeds, cannot they
make it by this sweeping
clause? If it be
necessary to provide, not only
for this, but for any department
or officer of Congress, does not
this clause enable them to
make a law for the purpose?
And will not these laws, made
for those purposes, be
paramount to the laws of the
states? Will
not this clause give them a
right to keep a "powerful
army continually on foot",
if they "think it necessary" to
aid the execution of their
laws? Is there
any act, however
atrocious, which they cannot
do by virtue of this clause? Look at the
use which has been made, in all
parts of the world, of that human
thing called power.
Look at the predominant thirst
of dominion which
has invariably and uniformly
prompted rulers to abuse
their powers. Can
you say that you will be safe
when you give such unlimited
powers, {437} without any
real responsibility? Will
you be safe when you trust men
at Philadelphia with power to
make any law that will enable
them to carry their acts into
execution? Will
not the members of Congress
have the same passions which
"other rulers" have had?
They will not be superior to
the frailties of human
nature. However cautious you
may be in the selection of
your representatives, it
will be "dangerous to trust
them with such unbounded
powers". Shall we be told,
when about to grant such
illimitable authority, that
it will "never be
exercised"!
I conjure
you once more to remember the
admonition of that sage man
who told you that,when
you give power,
you
know not what you give. I know the
absolute necessity of an
energetic government. But is
it consistent with any
principle of prudence or
good policy to grant
unlimited, unbounded
authority, which is so
totally unnecessary that
gentlemen say it will "never
be exercised"? But
gentlemen say that we must
make experiments. A
wonderful and unheard-of
experiment it will be, to
give "unlimited power
unnecessarily"!I admit my
inferiority in point of
historical knowledge; but I
believe no man can produce an
instance of an unnecessary and
unlimited power, given to a body
independent of the legislature,
within a particular district. Let
any man in this Convention
show me an instance of such
separate and different powers
of legislation in the same
country show me an instance
where a part of the community
was independent of the whole.
The
people within that place,
and the strongholds, may be
"excused from all the
burdens imposed on the rest
of the society", and may
"enjoy exclusive
emoluments", to the
great injury of the rest of
the people. But
gentlemen say that the power
will not he abused. They
ought to "show that
it is necessary". All their
powers may be fully carried into
execution, without this
exclusive authority in the ten
miles square (Washington,
DC).
The sweeping
clause
(APP: The Sweeping
Clause - Supremacy
Clause)
will fully
enable them to do what they
please. What
could the most extravagant and
boundless imagination ask, but
power to do every thing?
I have
reason to suspect ambitious
GRASPS AT POWER. The
experience of the world teaches
me the jeopardy of giving
enormous power.
Strike this clause out of
the form of the government,
and how will it stand?
Congress will still have
power, by the
sweeping clause, to
make laws within that {438}
place and the strongholds,
independently of the local
authority of the state. I ask
you, if this clause be
struck out, whether the sweeping
clause will
not enable them to protect
themselves from insult.
If you
grant them these powers, you
destroy "every degree
of responsibility". They
will fully screen them from
justice, and preclude the
possibility of
punishing them. No
instance can be given of
such a wanton GRASP OF
POWER as an
exclusive legislation
in all cases whatever.
Mr.
MADISON. Mr.
Chairman, I am astonished that
the honorable member should
launch out into such
strong descriptions without any
occasion. Was there ever a
legislature in existence
that held their sessions at a
place where they had not
jurisdiction? I do not
mean such a legislature as they
have in Holland; for it deserves
not the name. Their powers are
such as Congress have now, which
we find not reducible to
practice. If you be satisfied
with the shadow and form,
instead of the substance,
you will render them dependent
on the local authority. Suppose
the legislature of this country
should sit in Richmond, while
the exclusive jurisdiction of
the place was in some particular
county; would this country think
it safe that the general good
should be subject to the
paramount authority of a part of
the community?
The
honorable member asks, Why
ask for this power, and if the
subsequent clause be not fully
competent for the same
purpose. If so, what new terrors
can arise from this
particular clause? It is
only a superfluity.
If
that "latitude" of construction which
he contends for were to take
place with
respect to the "sweeping
clause", there "would" be room
for those horrors.
But it
gives no supplementary
power. It only enables them
to execute the "delegated
powers".
"If" the "delegation"
of their powers be "safe", no
possible inconvenience can
arise from this clause.
It is at
most "but" explanatory.
For when any
power is given, its delegation
necessarily involves
"authority" to make
laws to execute it. Were it
possible to delineate on paper
all those particular cases
and circumstances in which
legislation by the general
legislature would be
necessary, and leave to the
states all the other powers, I
imagine no gentleman would
object to it. But this is
not within the limits of human
capacity. The particular powers
which are found necessary to be
given {439} are therefore
delegated "generally", and
particular and minute
specification is left to the
legislature.
[Here Mr.
Madison spoke of the distinction
between regulation of police and
legislation, but so low he could
not be heard.]
When the
honorable member objects
to giving the general government
jurisdiction over the place of
their session, does he
mean that it should be under the
control of any particular
state, that might, at a critical
moment, seize it? I should have
thought that this clause would
have met with the most cordial
approbation. As the
consent of the state in
which it may be must be
obtained, and as it may
stipulate the terms of the
grant, should
they"violate
the particular stipulations"it
would be an "usurpation"; so that, if
the members of Congress were to
be guided by the laws of their
country, none of those dangers
could arise.
[Mr. Madison
made several other remarks,
which could not be heard]
Mr.
HENRYreplied that, if
Congress were vested with
supreme power of
legislation, paramount to
the constitution and laws of
the states, the dangers he
had described might happen;
for that Congress would not
be confined to the
enumerated powers. This
construction was warranted, in
his opinion, by the
addition of the word DEPARTMENT, at
the end of the clause, and that
they
could make any laws which
they might think necessary
to execute the powers of any
DEPARTMENT or
officer of the government.
Mr.
PENDLETON. Mr.
Chairman, this clause does
"NOT" give Congress power to
impede the operation of ANY
PART of the Constitution,(N)or to
make ANY
REGULATION that
may affect
the interests of the
citizens of
the Union at
large. But it
gives them power over the local
police of the place, so as to
be secured from any interruption
in their proceedings.
Notwithstanding the violent
attack upon it, I believe, sir,
this
is the "fair construction of
the clause". It gives
them power of exclusive
legislation in any case within
that district. What is the
meaning of this? What is it
opposed to?Is it opposed to
the general powers of the
federal legislature, or to
those of the state
legislatures? I
understand it as opposed to
the legislative power of
that state where it shall
be. What,
then, is the power? It is,
that Congress shall exclusively
legislate there (Washington,
DC), in order to
preserve {440} serve the
police of the place (Washington,
DC)
and their own personal
independence, that
they may not be overawed or
insulted, and of course to
preserve them in opposition to
any attempt by the state where
it shall be this
is the "fair
construction". Can we
suppose that, in order to effect
these salutary ends, Congress
will make it an asylum
for villains and the vilest
characters from all parts of
the world? Will it not
degrade their own dignity to make
it a sanctuary for villains?
I hope
that no man that will ever
"compose" that Congress will
associate with the most
profligate characters.
(APP: If this was not such a
sad statement, it would be
funny)
Why
oppose this power?
Suppose it was contrary to the
sense of their constituents to
grant exclusive
privileges to
citizens residing within that
place; the effect would be directly
in opposition to what he
says. It could
have no
operation without the limits
of that district (Washington,
DC). Were
Congress to make a law granting
them an exclusive privilege of
trading to the East Indies, it
could have NO
effect the
moment it would go without
that place (Washington,
DC);
for their exclusive power
is confined
to that district (Washington,
DC).
Were they to pass such a law, it
would be nugatory; and every
member of the community at large
could trade to the East Indies
as well as the citizens of that
district (Washington,
DC). This
exclusive power is limited
to that place solely
(Washington,
DC), for
their own
preservation, which all
gentlemen allow to be
necessary.
Will you pardon me when
I observe that their
construction of the preceding
clause does not appear to me
to be natural, or warranted by
the words.
They say
that the state governments
have no power at all over the
militia. The power of the
general government to
provide for arming and
organizing the militia is to
introduce a uniform system
of discipline to pervade the
United States of America.
But the power of governing
the militia, so far as it is in
Congress, extends only
to such parts of them as may be
employed in the service of the
United States. When not in their
service, Congress
has no power to govern them.
The states then have the
"sole" government
of them; and though
Congress "may" provide for
arming them, and prescribe the "mode" of
discipline, yet the
STATES have the Authority of
training them, according
to the uniform discipline
prescribed by Congress. But
there is NOTHING to preclude
them from arming and
disciplining them, should
Congress neglect to, do it. As to
calling the militia to execute
the laws of the {441} Union, I
think the fair construction is
directly opposite to what the
honorable member says. The
4th section of the 4th article
contains nothing to
warrant the supposition that
the states cannot call them
forth to suppress domestic
insurrections. [Here he
read the section.] All
the restraint here contained
is, that Congress may,
at their pleasure, on
"application of the state
legislature", or "(in
vacation)" of the executive, protect
each of the states against domestic
violence. This
is a restraint on the
general government "not
to interpose".
The "state" is in "full
possession" of the "power"
of using its "own
militia" to protect
itself against domestic
violence; and the power in
the general government
"cannot be exercised, or
interposed", without
the "application of the
state itself". This
appears to me to be the "obvious"
and "fair construction".
With respect
to the necessity of the ten
miles square being
superseded by the subsequent
clause, which gives them power
to make all laws which shall be
necessary and proper for
carrying into execution the
foregoing powers, and all other
powers vested by this
Constitution in the government
of the United States, or in any
department or officer thereof, I
understand that clause as NOT going a "SINGLE
STEP beyond" the "DELEGATED
powers". What can
it act upon? Some power
given by this Constitution.
If they
should be about to pass a law
in consequence of this clause,
they must pursue some of the "DELEGATED
powers", but can by "NO
MEANS" depart from
them,
(N)OR "ARROGATE"
"ANY NEW" powers;
for the PLAIN LANGUAGE
of the clause is, to give them
power to pass laws in order to
give "effect" to the "DELEGATED"
powers".
Mr.
GEORGE MASON. Mr.
Chairman, gentlemen say there is
no new power given by this
clause. Is
there any thing in this
Constitution which secures
to the states the powers
which are said to be
retained? Will powers
remain to the states which are
not expressly guarded and
reserved? I will suppose a case.
Gentlemen may call it an
impossible case, and "suppose"
that Congress will act with
wisdom and integrity.
Among the enumerated powers,
Congress are to lay and collect
taxes, duties, imposts, and
excises, and to pay the debts,
and to provide for the general
welfare and common defence; and
by that clause (so
often called the sweeping
clause) they are
to make all laws necessary to
execute those laws. Now,
suppose oppressions {442}
should arise under "this" government,and any
writer should dare to stand
forth, and expose to the
community at large the abuses
of"those"powers;could not
Congress, under the"idea"
of
providing for the"general
welfare",and under
their"own"construction, say
that this was destroying the"general
peace", encouraging
sedition, and poisoning the
minds of the people? And could
they not, in order to provide
against this, lay a
dangerous restriction On the
press? Might they not even
bring the trial of this
restriction within the ten miles
square (Washington,
DC),
when there is no
prohibition against it?
Might they not thus destroy
the trial by jury? Would they
not "extend"their
implication?
It
appears to me that they MAY
and "WILL". And
shall the support of our
rights depend on the bounty of
men "whose interest it may
be to oppress us"? That
Congress should have power to
provide for the general
welfare (APP
Note: Defense against
"Foriegn" aggression) of the
Union, I grant.
But I
wish a clause in the
Constitution, with respect to
ALL powers which are
NOT granted, that they
are retained by the states.
Otherwise, the power of
providing for the "general
welfare" may be "perverted
to its destruction".
Many
gentlemen, whom I respect,
take different sides of this
question. We wish this
amendment to be introduced,
to remove our apprehensions.
There
was a clause in the
Confederation reserving to
the states respectively
every power, jurisdiction,
and right, not expressly
delegated to the United
States. This clause has
never been complained of,
but approved by all Why not,
then, have a similar clause
in this Constitution, in which it
is the more indispensably
necessary than in the
Confederation, because of the
great augmentation of power
vested in the former? In my
humble apprehension, unless
there be some such clear and
finite expression, this clause
now under consideration will go
to any thing our rulers may
think proper. Unless
there be some express
declaration that every thing
not given is retained, it will
be carried to any
power Congress may please.
Mr.
HENRY moved to read
from the 8th to the 13th article
of the declaration of rights;
which was done.
Mr.
GEORGE NICHOLAS,
in reply to the gentlemen
opposed to the clause under
debate, went over the same
grounds, and developed the same
principles, which Mr. Pendleton
and Mr. Madison had done. The
opposers of the {443} clause,
which gave the power of
providing for the general
welfare, supposed its dangers to
result from its connection with,
and extension of, the powers
granted in the other
clauses. He endeavored to
show the committee that it only
empowered Congress to make
such laws as would be necessary
to enable them to pay the public
debts and provide for the
common defence; >that
this "general welfare" was
united, "NOT"
to
"the general power of
legislation", but to the
>particular
power> of laying
and collecting taxes,
imposts, and excises, for
the PURPOSE of paying the
debts and providing for the
"common defence", that is,
that they could raiseas
much money as would
pay the
debts and provide for the
"common defence", in
"consequence of this
power". The
clause which was affectedly
called the sweeping
clause
contained"NO
new grant of power". To
illustrate this position, he
observed that, if it had been
added at the end of every one of
the enumerated powers, instead
of being inserted at the end of
all, it
would be obvious to any one
that it was "NO"
augmentation of power. If,
for instance, at the end of
the clause granting power to
lay and collect taxes, it
had been added that they
should have power to make
necessary and proper laws to
lay and collect taxes, who
could suspect it to be an
addition of power? As it
would grant "NO"
new power if
inserted at the end of each
clause, it could
not when subjoined to the whole.
He then
proceeded thus: But, says he,
who is to determine the extent
of such powers? I say, the
same power which, in all
well-regulated communities,
determines
the "extent" of
"legislative" powers. If
they exceed these powers, the"JUDICIARY"
will declare it "VOID",
or else "the PEOPLE"
will have a "RIGHT" to
declare it "VOID". Is this
depending on any man? But, says
the gentleman, it may go to any
thing. It may destroy the trial
by jury; and they may say it is
necessary for providing for the
general defence. The power of
providing for the general
defence only extends to raise
any sum of money they may think
necessary, by taxes, imposts,
But, says he, our only defence
against oppressive laws consists
in the virtue of our
representatives. This was
misrepresented.
If I understand it right, NO
"new" power can be
exercised.
As to
those which are actually
granted, we trust to the
fellow-feelings of our
representatives; and
if we are deceived, we then
"trust to altering our
{444} government". It appears
to me, however, that we can
confide in their discharging
their powers rightly,
from the peculiarity of their
situation, and connection with
us. If, sir, the powers of the
former Congress were very
inconsiderable, that
body did not deserve to have
great powers.
It was
so constructed that it would
be dangerous to invest it
with such. But why
were the articles of the BILL
of RIGHTS read? Let
him show us that those
rights are given up by the
Constitution. Let
him prove them to be
violated.
He tells us that the
most worthy characters of the
country differ as to the
necessity of a bill of rights.
It is a simple and plain
proposition. It is agreed
upon by all that the people
have all power. If
they part with any of it, is
it necessary to declare that
they retain the rest? Liken
it to any similar case. If I have
one thousand acres of land, and
I grant five hundred acres of
it, must I declare that I
retain the other five hundred?
Do I grant the whole thousand
acres, when I grant five
hundred, unless I declare that
the five hundred I do not give belong
to me still?
It is "so"
in "this case".After
granting some powers, the
rest must "REMAIN"
with "the PEOPLE".
Gov.
RANDOLPH observed
that he had some objections to
the clause. He was persuaded
that the construction put
upon it by the gentlemen, on
both sides, was erroneous;
but he thought any construction
better than going into anarchy.
Mr.
GEORGE MASON still
thought that there ought to be
some express declaration
in the Constitution, asserting
that rights
not given to the general
government were retained by
the states. He
apprehended that, unless
this was done, many valuable
and important rights would be
concluded to be given up
by "implication".
All
governments were drawn from the
people, though many were
perverted to their oppression.
The government of Virginia, he
remarked, was drawn from the
people; yet there were certain
great and important rights,
which the people, by their bill
of rights, declared to be
paramount to the power of
the legislature. He
asked, Why should it not be so
in this Constitution? Was it
because we were more
substantially represented in it
than in the state government?
If, in the state government,
where the people were
substantially and fully
represented, it was necessary
that the great rights of human
nature should {445} be secure
from the encroachments of the
legislature, he askedif it
was not more necessary in this
government, where they were
but inadequately represented?
He
declared that "artful
sophistry and evasions
could not satisfy him". He
could see no clear distinction
between rights relinquished by
a positive grant, and lost by
implication. Unless there were
a bill of rights, implication
might "swallow up all our
rights".
Mr.
HENRY. Mr. Chairman,
the "necessity"
of a"BILL
of RIGHTS" appears to
me to be "greater"
in this
government "than ever it
was in any government before".
"I have observed already,
that the sense of the European
nations, and particularly Great
Britain, is against the
construction of rights being
retained which are not expressly
relinquished. I repeat, that
all nations have adopted this
construction that all rights
not expressly and
unequivocally reserved to the
people are "impliedly
and incidentally
relinquished to rulers",
as necessarily inseparable from
the delegated powers. It is so
in Great Britain; for
every possible right, which is
not reserved to the people by
some express provision or
compact, is
within the king's
"prerogative". It is so in
that country which is said to be
in such full possession of
freedom. It is so in Spain,
Germany, and other parts of the
world. Let us consider the
sentiments which have been
entertained by the people of
America on this subject.
At
the revolution, it must be
admitted that it was their
sense to set down
those great rights
which ought, in all
countries, to be held
inviolable and sacred.
Virginia did so, we all
remember. She made a compact
to reserve, expressly,
certain rights.
When
fortified with full, adequate,
and abundant representation, was she
satisfied with that
representation? NO.
She most cautiously and
guardedly reserved and secured
those invaluable, inestimable
rights and privileges, which no
people, inspired with the least
glow of patriotic liberty, ever
did, or ever can, abandon. She is
called upon now to abandon
them, and dissolve that
compact which secured them
to her. She is called upon
to accede to another
compact, which most
infallibly supersedes and
annihilates her present one.
Will she do it? This is the
question. If you
intend to reserve your
unalienable rights, you must
have the most express
stipulation; for, if implication
be allowed, you are
ousted of those rights. If the
people do not think it necessary
to {446} reserve them, they will
be supposed to be given up. How were
the congressional rights defined
when the people of America
united by a confederacy to
defend their liberties and
rights against the
tyrannical attempts of
Great Britain? The states were
not then contented with
implied reservation.
No,
Mr. Chairman. It was
expressly declared in our
Confederation that every
right was retained by
the states, respectively,
which was not given up to
the government of the
United States.
But there is
no such thing here. You,
therefore, by a natural and unavoidable
implication, give up your
rights to the general
government.
Your
own example furnishes an
argument against it. If
you give up these powers,
without a bill of rights,
you will exhibit the most
absurd thing to mankind that
ever the world saw government
that has abandoned all its
powers the powers of direct
taxation, the sword, and the
purse. You have disposed of
them to Congress, without a
bill of rights without check,
limitation, or control. And
still you have checks and
guards; still you keep
barriers pointed where?
Pointed
against your weakened,
prostrated, enervated STATE
government!
You have
a bill of rights to defend "you" against
the state government, which is
"bereaved of all power", and yet
you have "none" against
Congress, though in
fill and exclusive possession
of all power! You
arm yourselves against the
weak and defenceless, and
expose yourselves naked to
the armed and powerful. Is
not this a conduct of
unexampled absurdity?
What
barriers have you to oppose to
this most strong, energetic
government? To that government
you have nothing
to oppose. All
your defence is given up.
This is a real, actual
defect. It must strike
the mind of every gentleman.
When our government was first
instituted in Virginia,
we declared the "COMMON LAW"
of England to be "in FORCE".
That
system of law which
has been admired, and "has
protected us and our
ancestors", is excluded
by that system. Added to
this, we adopted a bill of
rights.
By
this Constitution, some of
the best barriers of human
rights are "thrown away".
Is there
not an additional reason to
have a bill of rights?
By the ancient common law, the
trial of all facts is decided by
a jury of impartial men
from the immediate vicinage.
This paper speaks of
different juries from the
common law in criminal cases;
and in civil controversies {447}
excludes trial by jury
altogether. There is, therefore,
more occasion for the
supplementary check of a bill of
rights now than then. Congress,
from their general, powers, may
fully go into business of human
legislation. They may legislate,
in criminal cases, from treason
to the lowest offence petty
larceny. They may define crimes
and prescribe punishments. In
the definition of crimes,
I trust they will be directed by
what wise representatives
ought to be governed by.
But when we come to punishments,
no latitude ought to be left,
nor dependence put on the virtue
of representatives.
What says our bill of
rights? "that
excessive bail ought not to be
required, nor excessive fines
imposed, nor cruel and unusual
punishments inflicted." Are you
not, therefore, now calling on
those gentlemen who are to
compose Congress, to prescribe
trials and define punishments
without this control? Will they
find sentiments there similar to
this bill of rights?
You
let them loose; you do more
you depart from the genius
of your country.
That
paper (Proposed
Constitution) tells you that the
trial of crimes shall be by
jury, and held in the state
where the crime shall have been
committed. Under this extensive
provision, they may proceed in a
manner extremely dangerous to
liberty: a person accused may be
carried from one extremity of
the state to another, and be
tried, not by an impartial jury
of the vicinage, acquainted with
his character and the
circumstances of the fact, but
by a jury unacquainted with
both, and who may be biased
against him. Is not
this sufficient to alarm
men? How
different is this from the
immemorial practice of your
British ancestors, and your own!
I need not tell you that, by the
common law, a number of hundreds
were required on a jury, and
that afterwards it was
sufficient if the jurors came
from the same county. With less
than this the people of England
have never been satisfied. That
paper ought to have
declared the COMMON LAW in
force.
In this
business of legislation,
your members of Congress will
loose the restriction of not
imposing excessive fines,
demanding excessive bail, and
inflicting cruel and unusual
punishments. These are
prohibited by your declaration
of rights. What has
distinguished our ancestors?
That they would not admit of
tortures, or cruel and
barbarous punishment. But
Congress may introduce the practice
of the CIVIL law, in
preference to that of the
COMMON law. They
may {448} introduce the
practice of France, Spain, and
Germany of torturing, to
extort a confession of the
crime. They will say that they
might as well draw examples
from those countries as from
Great Britain, and they will
tell you that there is such a
necessity of strengthening the
arm of government, that they
must have a criminal equity,
and extort confession by
torture, in order to punish
with still more relentless
severity.
We are
then lost and undone.
And can any
man think it troublesome, when
we can, by a small interference,
prevent our rights from being
lost? If you will, like the
Virginian government, give them
knowledge of the extent of the
rights retained by the people,
and the powers of themselves,
they will, if they be honest
men, thank you for it. Will they
not wish to go on sure grounds?
But if
you leave them otherwise,
they will not know how to
proceed; and, being in a
state of uncertainty, they
will "assume" rather
than give up powers by "implication".
A bill
of rights may be summed up
in a few words.
What do they tell us?
That our rights are
reserved.
Why not say so?
Is it because it will
consume too much paper?
Gentlemen's
reasoning against a "bill of
rights" does not satisfy
me. Without saying which has the
right side, it remains doubtful.
A bill of rights is a
favorite thing with the
Virginians and the people of
the other states likewise.
It may be their prejudice, but
the government ought to suit
their geniuses; otherwise,
its operation will be unhappy. A
bill of rights, even if its
necessity be doubtful, will exclude
the possibility of dispute;
and, with great submission, I
think the BEST
way is to "have
NO dispute". In the present
Constitution, they are
restrained from issuing general
warrants to search suspected
places, or seize persons not
named, without evidence of the
commission of a fact, &c.
There was certainly some
celestial influence governing
those who deliberated on that
Constitution; for they have,
with the most cautious and
enlightened circumspection, guarded
those indefeasible rights
which ought ever to be held
sacred!
The officers of
Congress may come upon you now,
fortified
with all the terrors of
"paramount federal
authority".Excise
men may come in
multitudes; for
the limitation of their
numbers no man knows.
They may,
unless the general government be
restrained by a bill of
rights, or some
similar restriction, go
into your cellars and rooms,
and search,
ransack, and {449}
measure, every thing you
eat, drink, and wear.
They
ought to be restrained
Within proper bounds.
With respect
to the freedom of the press, I
need say nothing; for it is
hoped that the gentlemen who
shall compose Congress will
take care to infringe as "little
as possible" the
rights of human nature.
This will result from their
"integrity".
They
should, from prudence, abstain
from violating the rights of
their constituents.They are
not, however, "expressly"
restrained. But
whether they will intermeddle
with that palladium of our
liberties or not, I
leave you to determine.
Mr.
GRAYSON thought it
questionable whether rights not
given up were reserved. A
majority of the states, he
observed, had expressly reserved
certain important rights
by bills of rights, and
that in the Confederation
there was a clause declaring
expressly that every power
and right not given up was
retained by the states.
It was the general sense of
America that such a
clause was necessary;
other, wise, why did they
introduce a clause which was
totally unnecessary?
It had been
insisted, he said, in many parts
of America, that a bill
of rights was only
necessary between a prince and
people, and not in such a
government as this, which was a
compact between the people
themselves.This did not
satisfy his mind; for so
extensive was the power of
legislation, in his estimation,
that he doubted whether, when
it was once given up,any
thing was retained. He
further remarked, that there
were some negative clauses in
the Constitution, which
refuted the doctrine contended
for by the other side. For
instance; the 2d clause of the
9th section of the 1st article
provided that "the privilege
of the writ of habeas
corpus shall not be
suspended, unless when, in
cases of rebellion or
invasion, the public safety
may require it." And, by the
last clause of the same
section, "no title of nobility
shall be granted by the United
States."
Now, if these restrictions had
not been here inserted, he
asked whether Congress would
not most clearly have had a
right to suspend that great
and valuable right, and to
grant titles of nobility. When,
in addition to these
considerations, he saw they had
an indefinite power to provide
for the general welfare, he
thought there were great reasons
to apprehend great dangers.
He
thought, therefore, that
there ought to be a bill of
rights."
Mr.
GEORGE NICHOLAS,
in answer to the two gentlemen
{450} last up, observed that,
though there was a
declaration of rights in the
government of Virginia, it was
no conclusive reason that
there should be one in this
Constitution; for, if it was
unnecessary in the former,
its omission in the latter could
be no defect. They ought,
therefore, to prove that it was
essentially necessary to be
inserted in the
Constitution of Virginia. There
were five or six states in the
Union which had no bill of
rights, separately and
distinctly as such; but they
annexed the substance of a
bill of rights to their
respective constitutions.
These states, he further
observed, were as free as this
state, and their liberties
as secure as ours. If so,
gentlemen's arguments from the
precedent were not good.
In Virginia, all powers were
given to the government without
any exception. It was
different in the general
government, to which certain
special powers were
delegated for certain purposes.
He asked which was the more
safe. Was it safer to
grant general powers than
certain limited powers? This
much as to the theory,
continued he. What is the
practice of this invaluable
government? Have your
citizens been bound by it? They
have not, sir. You have
violated that maxim, "that
no man shall be condemned
without a fair trial." That
man who was killed, not secundum
artem, was deprived of his
life without the benefit
of law, and in express violation
of this declaration of
rights, which they confide
in so much. But, sir, this bill
of rights was no security.
It is but a paper check. It has
been violated in many other
instances. Therefore, from
theory and practice, it may be
concluded that this government,
with special powers, without any
express exceptions, is better
than a government with general
powers and special exceptions.
But the practice of England is
against us. The rights there
reserved to the people are to
limit and check the king's
prerogative. It is easier to
enumerate the exceptions to his
prerogative, than to
mention all the cases to which
it extends. Besides, these
reservations, being only
formed in acts of the
legislature, may be altered by
the representatives of the
people when they think proper.
No comparison can be made of
this with the other
governments he mentioned. There
is no stipulation between the
king and people. The
former is possessed of absolute,
unlimited authority.
But, sir,
this Constitution is
defective because the common
{451} law is not declared to be
in force! What would have
been the consequence if it had?
It would be immutable. But
now it can be changed or
modified as the legislative body
may find necessary for the
community.
But
the"COMMON
LAW"is"NOT
EXCLUDED". There
is"NOTHING" in "that
paper" (APP
Note: referring to the US
Constitution being
considered) to
warrant the assertion.
As to the
exclusion of a jury from the
vicinage, he has mistaken the
fact. The legislature may direct
a jury to come from the
vicinage. But the
gentleman says that, by
this Constitution, they have
power to make laws to define
crimes and prescribe
punishments; and that,
consequently, we are not free
from torture. Treason
against the United States is
defined in the Constitution,
and the forfeiture limited
to the life of the person
attainted.
Congress have power to define
and punish:
a.)
piracies and felonies committed
on the high seas, and
b.) offenses against the laws of
nations;
but they (APP: the
federal government,
legislature or supreme
court) CANNOT
DEFINE or PRESCRIBE the
PUNISHMENT of "ANY OTHER
CRIME WHATEVER", WITHOUT
"VIOLATING the
CONSTITUTION".
(APP
Note: See this also in the
Virginia and Kentucky
Resolutions - Kentucky
Resolutions #2 - This can
be no clearer, the federal
government and all those
officials and citizens who
support or allow others to
be prosecuted under any
"other crimes and
punishments" not listed are
in DIRECT VIOLATION to the
Constitution they claim to
uphold.)
If we had no security
against torture but our
declaration of rights, we might
be tortured to-morrow; for it
has been repeatedly infringed
and disregarded. A bill of
rights is only an
acknowledgment of the PREEXISTING
CLAIM TO RIGHTS IN THE
PEOPLE.
They BELONG TO US AS MUCH
as if they had been inserted
in the Constitution. (APP
Note: Which they eventually
were) But it is
said that, if it be doubtful,
the possibility of dispute ought
to be precluded. Admitting it
was proper for the Convention to
have inserted a bill of rights,
it is not proper here to propose
it as the condition of our
accession to the Union. Would
you reject this government for
its omission, dissolve the
Union, and bring miseries on
yourselves and posterity? I hope
the gentleman does not oppose it
on this ground solely. Is there
another reason? He said that it
is not only the general wish of
this state, but all the states,
to have a bill of rights. If it
be so, where is the difficulty
of having this done by way of
subsequent amendment? We shall
find the other states willing to
accord with their own favorite
wish.
The gentleman last up says that
the power of legislation
includes every thing. A general
power of legislation does. But
this is a special power of
legislation. Therefore,
it does NOT
contain that plenitude of
power which he imagines. They "CANNOT
LEGISLATE" in "ANY case" but
those "PARTICULARLY
ENUMERATED". No
gentleman, who is a friend to
the government, ought to
withhold his assent from it for
this reason.
{452} Mr. GEORGE MASON
replied that the worthy
gentleman was mistaken in his
assertion that the bill of
rights did not prohibit torture;
for that one clause expressly
provided that no man can
give evidence against
himself; and that
the worthy gentleman must know
that, in those countries where
torture is used, evidence was
extorted from the criminal
himself. Another clause of the
bill of rights provided that no
cruel and unusual punishments
shall be inflicted; therefore, torture
was included in the
prohibition.
Mr.
NICHOLAS
acknowledged the bill of rights
to contain that prohibition, and
that the gentleman was
right with respect to the
practice of extorting confession
from the criminal in those
countries where torture is used;
but still he saw no security
arising from the bill of rights
as separate from the
Constitution, for that
it had been frequently
violated with impunity.
This
Constitutional Debate was made
June 16, 1788; [Elliot
misprinted this as Monday, June
14, 1788.]
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