Debates in the Several State Conventions/Volume 4/SC Jan 16
DEBATES
in the
LEGISLATURE AND IN CONVENTION
of the
STATE OF SOUTH CAROLINA,
on the
ADOPTION OF THE FEDERAL CONSTITUTION.
House of Representatives. In the Legislature,
Wednesday, January 16, 1788.
Read the proposed Federal Constitution, after which the house resolved itself into a committee of the whole. Hon. THOMAS BEE in the chair.
Hon. CHARLES PINCKNEY (one of the delegates of the Federal Convention) rose in his place, and said that, although the principles and expediency of the measures proposed by the late Convention will come more properly into discussion before another body, yet, as their appointment originated with them, and the legislatures must be the instrument of submitting the plan to the opinion of the people, it became a duty in their delegates to state with conciseness the motives which induced it.
It must be recollected that, upon the conclusion of the definitive treaty, great inconveniences were experienced, as resulting from the inefficacy of the Confederation. The one first and most sensibly felt was the destruction of our commerce, occasioned by the restrictions of other nations, whose policy it was not in the power of the general government to counteract. The loss of credit, the inability in our citizens to pay taxes, and languor of government, were, as they ever must be, the certain consequences of the decay of commerce. Frequent and unsuccessful attempts were made by Congress to obtain the necessary powers. The states, too, individually attempted, by navigation acts and other commercial provisions, to remedy the evil. These, instead of correcting, served but to increase it; their regulations interfered not only with each other, but, in almost every instance, with treaties existing under the authority of the Union. Hence arose the necessity of some general and permanent system, which should at once embrace all interests, and, by placing the states upon firm and united ground, enable them effectually to assert their commercial rights. Sensible that nothing but a concert of measures could effect this, Virginia proposed a meeting of commissioners at Annapolis, from the legislature of each state, who should be empowered to take into consideration the commerce of the Union; to consider how far a uniform system in their commercial regulations might be necessary to their common interest; and to report to the states such an act as, when unanimously ratified by them, would enable Congress effectually to provide for the same. In consequence of this, ten states appointed delegates. By accident, or otherwise, they did not attend, only five states being represented. The gentlemen present, not being a majority of the Union, did not conceive it advisable to proceed; but in an address to their constituents, which was also transmitted to the other legislatures, acquainted them with the circumstances of their meeting; that there appeared to them to be other and more material defects in the federal system than merely those of commercial powers. That these, upon examination, might be found greater than even the acts of their appointments implied, was at least so far probable, from the embarrassments which mark the present state of national affairs, foreign and domestic, as to merit, in their opinions, a deliberate and candid discussion in some mode which would unite the sentiments and councils of all the states. They therefore suggested the appointment of another convention, under more extensive powers, for the purpose of devising such further provisions as should appear to them necessary to render the federal government adequate to the exigencies of the Union.
Under this recommendation the late Convention assembled; for most of the appointments had been made before the recommendation of Congress was formed or known. He thought proper concisely to mention the manner of the Convention's assembling, merely to obviate an objection which all the opposers of the federal system had used, viz., that, at the time the Convention met, no opinion was entertained of their departing from the Confederation—that merely the grant of commercial powers, and the establishment of a federal revenue, were in agitation; whereas nothing can be more true, than that its promoters had for their object a firm national government. Those who had seriously contemplated the subject were fully convinced that a total change of system was necessary—that, however the repair of the Confederation might for a time avert the inconveniences of a dissolution, it was impossible a government of that sort could long unite this growing and extensive country They also thought that the public mind was fully prepared for the change, and that no time could be more proper for introducing it than the present—that the total want of government, the destruction of commerce, of public credit, private confidence, and national character, were surely sufficiently alarming to awaken their constituents to a true sense of their situation.
Under these momentous impressions the Convention met, when the first question that naturally presented itself to the view of almost every member, although it was never formally brought forward, was the formation of a new, or the amendment of the existing system. Whatever might have been the opinions of a few speculative men, who either did, or pretended to, confide more in the virtue of the people than prudence warranted, Mr. Pinckney said he would venture to assert that the states were unanimous in preferring a change. They wisely considered that, though the Confederation might possess the great outlines of a general government, yet that it was, in fact, nothing more than a federal union; or, strictly speaking, a league founded in paternal and persuasive principles, with nothing permanent and coercive in its construction, where the members might, or might not, comply with their federal engagements, as they thought proper—that no power existed of raising supplies but by the requisitions or quotas on the states—that this defect had been almost fatally evinced by the experience of the states for the last six or eight years, in which not one of them had completely complied; but a few had even paid up their specie proportions; others very partially; and some, he had every reason to believe, had not to this day contributed a shilling to the common treasury since the Union was formed. He should not go into a detail of the conduct of the states, or the unfortunate and embarrassing situation to which their inattention has reduced the Union; these have been so often and so strongly represented by Congress, that he was sure there could not be a member on the floor unacquainted with them. It was sufficient to remark that the Convention saw and felt the necessity of establishing a government upon different principles, which, instead of requiring the intervention of thirteen different legislatures between the demand and the compliance, should operate upon the people in the first instance.
He repeated, that the necessity of having a government which should at once operate upon the people, and not upon the states, was conceived to be indispensable by every delegation present; that, however they may have differed with respect to the quantum of powder, no objection was made to the system itself. They considered it, however, highly necessary that, in the establishment of a constitution possessing extensive national authorities, a proper distribution of its powers should be attended to. Sensible of the danger of a single body, and that to such a council the states ought not to intrust important rights, they considered it their duty to divide the legislature into two branches, and, by a limited revisionary power, to mingle, in some degree, the executive in their proceedings—a provision that he was pleased to find meets with universal approbation. The degree of weight which each state was to have in the federal council became a question of much agitation. The larger states contended that no government could long exist whose principles were founded in injustice; that one of the most serious and unanswerable objections to the present system was the injustice of its tendency in allowing each state an equal vote, notwithstanding their striking disparity. The small ones replied, and perhaps with reason, that, as the states were the pillars upon which the general government must ever rest, their state governments must remain; that, however they may vary in point of territory or population, as political associations they were equal; that upon these terms they formally confederated, and that no inducement whatsoever should tempt them to unite upon others; that, if they did, it would amount to nothing less than throwing the whole government of the Union into the hands of three or four of the largest states.
After much anxious discussion,—for, had the Convention separated without determining upon a plan, it would have been on this point,—a compromise was effected, by which it was determined that the first branch be so chosen as to represent in due proportion the people of the Union; that the Senate should be the representatives of the states, where each should have an equal weight. Though he was at first opposed to this compromise, yet he was far from thinking it an injudicious one. The different branches of the legislature being intended as checks upon each other, it appeared to him they would more effectually restrain their mutual intemperances under this mode of representation than they would have done if both houses had been so formed upon proportionable principles; for, let us theorize as much as we will, it will be impossible so far to divest the majority of the federal representatives of their state views and policy, as to induce them always to act upon truly national principles. Men do no easily wean themselves of those preferences and attachments which country and connections invariably create; and it must frequently have happened, had the larger states acquired that decided majority which a proportionable representation would have given them in both houses, that state views and policy would have influenced their deliberations. The ease with which they would, upon all occasions, have secured a majority in the legislature, might, in times less virtuous than the present, have operated as temptations to designing and ambitious men to sacrifice the public good to private views. This cannot be the case at present; the different mode of representation for the Senate will, as has already been observed, most effectually prevent it. The purpose of establishing different houses of legislation was to introduce the influence of different interests and principles; and he thought that we should derive, from this mode of separating the legislature into two branches, those benefits which a proper complication of principles is capable of producing, and which must, in his judgment, be greater than any evils that may arise from their temporary dissensions.
The judicial he conceived to be at once the most important and intricate part of the system. That a supreme federal jurisdiction was indispensable, cannot be denied. It is equally true that, in order to insure the administration of justice, it was necessary to give it all the powers, original as well as appellate, the Constitution has enumerated; without it we could not expect a due observance of treaties—that the state judiciary would confine themselves within their proper sphere, or that general sense of justice pervade the Union which this part of the Constitution is intended to introduce and protect—that much, however, would depend upon the wisdom of the legislatures who are to organize it—that, from the extensiveness of its powers, it may be easily seen that, under a wise management, this department might be made the keystone of the arch, the means of connecting and binding the whole together, of preserving uniformity in all the judicial proceedings of the Union—that, in republics, much more (in time of peace) would always depend upon the energy and integrity of the judicial than on any other part of the government—that, to insure these, extensive authorities were necessary; particularly so were they in a tribunal constituted as this is, whose duty it would be not only to decide all national questions which should arise within the Union, but to control and keep the state judicials within their proper limits whenever they shall attempt to interfere with its power.
And the executive, he said, though not constructed upon those firm and permanent principles which he confessed would have been pleasing to him, is still as much so as the present temper and genius of the people will admit. Though many objections had been made to this part of the system, he was always at a loss to account for them. That there can be nothing dangerous in its powers, even if he was disposed to take undue advantages, must be easily discerned from reviewing them. He is commander-in-chief of the land and naval forces of the Union, but he can neither raise nor support forces by his own authority. He has a revisionary power in the making of laws; but if two thirds of both houses afterwards agree notwithstanding his negative, the law passes. He cannot appoint to an office without the Senate concurs; nor can he enter into treaties, or, in short, take a single step in his government, without their advice. He is, also, to remain in office but four years. He might ask, then. From whence are the dangers of the executive to proceed? It may be said. From a combination of the executive and the Senate, they might form a baneful aristocracy.
He had been opposed to connecting the executive and the Senate in the discharge of those duties, because their union, in his opinion, destroyed that responsibility which the Constitution should, in this respect, have been careful to establish; but he had no apprehensions of an aristocracy. For his part, he confessed that he ever treated all fears of aristocracies or despotisms, in the federal head, as the most childish chimeras that could be conceived. In a Union extensive as this is, composed of so many state governments, and inhabited by a people characterized, as our citizens are, by an impatience under any act which even looks like an infringement of their rights, an invasion of them by the federal head appeared to him the most remote of all our public dangers. So far from supposing a change of this sort at all probable, he confessed his apprehensions were of a different kind: he rather feared that it was impossible, while the state systems continue—and continue they must—to construct any government upon republican principles sufficiently energetic to extend its influence through all its parts. Near the federal seat, its influence may have complete effect; but he much doubted its efficacy in the more remote districts. The state governments will too naturally slide into an opposition against the general one, and be easily induced to consider themselves as rivals. They will, after a time, resist the collection of a revenue; and if the general government is obliged to concede, in the smallest degree, on this point, they will of course neglect their duties, and despise its authority: a great degree of weight and energy is necessary to enforce it; nor is any thing to be apprehended from them. All power being immediately derived from the people, and the state governments being the basis of the general one, it will easily be in their power to interfere, and to prevent its injuring or invading their rights. Though at first he considered some declaration on the subject of trial by jury in civil causes, and the freedom of the press, necessary, and still thinks it would have been as well to have had it inserted, yet he fully acquiesced in the reasoning which was used to show that the insertion of them was not essential. The distinction which has been taken between the nature of a federal and state government appeared to be conclusive—that in the former, no powers could be executed, or assumed, out such as were expressly delegated; that in the latter, the indefinite power was given to the government, except on points that were by express compact reserved to the people.
On the subject of juries, in civil cases, the Convention were anxious to make some declaration; but when they reflected that all courts of admiralty and appeals, being governed in their propriety by the civil law and the laws of nations, never had, or ought to have, juries, they found it impossible to make any precise declaration upon the subject; they therefore left it as it was, trusting that the good sense of their constituents would never induce them to suppose that it could be the interest or intention of the general government to abuse one of the most invaluable privileges a free country can boast; in the loss of which, themselves, their fortunes and connections, must be so materially involved, and to the deprivation of which, except in the cases alluded to, the people of this country would never submit. When we reflect that the exigencies of the government require that a general government upon other principles than the present should be established,—when we contemplate the difference between a federal union and a government operating upon the people, and not upon the states,—we must at once see the necessity of giving to it the power of direct taxation. Without this, it must be impossible for them to raise such supplies as are necessary to discharge the debts, or support the expenses, of the Union—to provide against the common dangers, or afford that protection to its members which they have a right to expect from the federal head. But here he begged leave to observe that, so far from apprehending danger from the exercise of this power, few or no inconveniences are to be expected. He had not a doubt that, except in time of war, or pressing necessity, a sufficient sum would always be raised, by impost, to defray the general expenses. As to the power of raising troops, it was unnecessary to remark upon it further than merely to say, that this is a power the government at present possesses and exercises; a power so essential, that he should very much doubt the good sense or information of the man that should conceive it improper. It is guarded by a declaration that no grants for this purpose shall be longer than two years at a time. For his own part, notwithstanding all that had been said upon this popular topic, he could not conceive that either the dignity of a government could be maintained, its safety insured, or its laws administered, without a body of regular forces to aid the magistrate in the execution of his duty. All government is a kind of restraint. We may be told, a free government imposes no restraint upon the private wills of individuals which does not conduce in a greater degree to the public happiness; but all government is restraint, and founded in force. We are the first nation who have ever held a contrary opinion, or even attempted to maintain one without it. The experiment has been made, and he trusted there would hereafter be few men weak enough to suppose that some regular force ought not to be kept up, or that the militia ever can be depended upon as the support or protection of the Union.
Upon the whole, he could not but join those in opinion who have asserted that this is the best government that has ever yet been offered to the world, and that, instead of being alarmed at its consequences, we should be astonishingly pleased that one so perfect could have been formed from such discordant and unpromising materials. In a system founded upon republican principles, where the powers of government are properly distributed, and each confined to a separate body of magistracy, a greater degree of force and energy will always be found necessary than even in a monarchy. This arises from the national spirit of union being stronger in monarchies than in republics: it is said to be naturally strong in monarchies, because, in the absence both of manners and principles, the compelling power of the sovereign collects and draws every thing to a point; and thereby, in all common situations, effectually supplies their place. But in free countries it is naturally weak, unless supported by public spirit; for as, in most cases, a full spirit of national union will require that the separate and partial views of private interest be on every occasion sacrificed to the general welfare, so, when this principle prevails not, (and it will only prevail in moments of enthusiasm,) the national union must ever be destroyed by selfish views and private interest. He said that, with respect to the Union, this can only be remedied by a strong government, which, while it collects its powers to a point, will prevent that spirit of disunion from which the most serious consequences are to be apprehended. He begged leave, for a moment, to examine what effect this spirit of disunion must have upon us, as we may be affected by a foreign enemy. It weakens the consistency of all public measures, so that no extensive scheme of thought can be carried into action, if its accomplishment demand any long continuance of time. It weakens not only the consistency, but the vigor and expedition, of all public measures; so that, while a divided people are contending about the means of security or defence, a united enemy may surprise and invade them. These are the apparent consequences of disunion. Mr. Pinckney confessed, however, that, after all that had been said upon the subject, our Constitution was in some measure but an experiment; nor was it possible yet to form a just conclusion as to its practicability.
It had been an opinion long established, that a republican form of government suited only the affairs of a small state; which opinion is founded in the consideration, that unless the people in every district of the empire be admitted to a share in the national representation, the government is not to them as a republic; that in a democratic constitution, the mechanism is too complicated, the motions too slow, for the operations of a great empire, whose defence and government require execution and dispatch in proportion to the magnitude, extent, and variety of its concerns. There was, no doubt, weight in these reasons; but much of the objection, he thought, would be done away by the continuance of a federal republic, which, distributing the country into districts, or states, of a commodious extent, and leaving to each state its internal legislation, reserves unto a superintending government the adjustment of their general claims, the complete direction of the common force and treasure of the empire. To what limits such a republic might extend, or how far it is capable of uniting the liberty of a small commonwealth with the safety of a peaceful empire; or whether, among coördinate powers, dissensions and jealousies would not arise, which, for want of a common superior, might proceed to fatal extremities,—are questions upon which he did not recollect the example of any nation to authorize us to decide, because the experiment has never been yet fairly made. We are now about to make it upon an extensive scale, and under circumstances so promising, that he considered it the fairest experiment that had been ever made in favor of human nature. He concluded with expressing a thorough conviction that the firm establishment of the present system is better calculated to answer the great ends of public happiness than any that has yet been devised.
A long debate arose on reading the Constitution in paragraphs; but, on a division, there appeared to be a majority against it.
Hon. ROBERT BARNWELL hoped gentlemen would confine themselves to the principles of this Constitution. An honorable member had already given much valuable information as reasons that operated in the Convention, so that they were now able to lay before their constituents the necessity of bringing forward this Constitution.
Judge PENDLETON read a paragraph in the Constitution, which says "the Senate shall have the sole power of impeachment." In the British government, and all governments where power is given to make treaties of peace, or declare war, there had been found necessity to annex responsibility. In England, particularly, ministers that advised illegal measures were liable to impeachment, for advising the king. Now, if justice called for punishment of treachery in the Senate, on account of giving bad advice, before what tribunal could they be arraigned? Not surely before their house; that was absurd to suppose. Nor could the President be impeached for making treaties, he acting only under advice of the Senate, without a power of negativing.
Maj. PIERCE BUTLER (one of the delegates of the Federal Convention) was one of a committee that drew up this clause, and would endeavor to recollect those reasons by which they were guided. It was at first proposed to vest the sole power of making peace or war in the Senate; but this was objected to as inimical to the genius of a republic, by destroying the necessary balance they were anxious to preserve. Some gentlemen were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction. The House of Representatives was then named; but an insurmountable objection was made to this proposition—which was, that negotiations always required the greatest secrecy, which could not be expected in a large body. The honorable gentleman then gave a clear, concise opinion on the propriety of the proposed Constitution.
Gen. CHARLES COTESWORTH PINCKNEY (one of the delegates of the Federal Convention) observed, that the honorable judge, from his great penetration, had hit upon one of those difficult points which for a long time occasioned much debate in the Convention. Indeed, this subject appeared to be of so much magnitude, that a committee consisting of one member from each state was appointed to consider and report upon it. His honorable friend (Major Butler) was on the committee for this state. Some members were for vesting the power for making treaties in the legislature; but the secrecy and dispatch which are so frequently necessary in negotiations evinced the impropriety of vesting it there. The same reason showed the impropriety of placing it solely in the House of Representatives. A few members were desirous that the President alone might possess this power, and contended that it might safely be lodged with him, as he was to be responsible for his conduct, and therefore would not dare to make a treaty repugnant to the interest of his country; and from his situation he was more interested in making a good treaty than any other man in the United States. This doctrine General Pinckney said he could not acquiesce in. Kings, he admitted, were in general more interested in the welfare of their country than any other individual in it, because the prosperity of the country tended to increase the lustre of the crown, and a king never could receive a sufficient compensation for the sale of his kingdoms; for he could not enjoy in any other country so advantageous a situation as he permanently possessed in his own. Hence kings are. less liable to foreign bribery and corruption than any other set of men, because no bribe that could be given them could compensate the loss they must necessarily sustain for injuring their dominions; indeed, he did not at present recollect any instance of a king who had received a bribe from a foreign power, except Charles II., who sold Dunkirk to Louis XIV. But the situation of a President would be very different from that of a king: he might withdraw himself from the United States, so that the states could receive no advantage from his responsibility; his office is not to be permanent, but temporary; and he might receive a bribe which would enable him to live, in greater splendor in another country than his own; and when out of office, he was no more interested in the prosperity of his country than any other patriotic citizen: and in framing a treaty, he might perhaps show an improper partiality for the state to which he particularly belonged. The different propositions made on this subject, the general observed, occasioned much debate. At last it was agreed to give the President a power of proposing treaties, as he was the ostensible head of the Union, and to vest the Senate (where each state had an equal voice) with the power of agreeing or disagreeing to the terms proposed. This, in some measure, took away their responsibility, but not totally; for, though the Senate were to be judges on impeachments, and the members of it would not probably condemn a measure they had agreed to confirm, yet, as they were not a permanent body, they might be tried hereafter by other senators, and condemned, if they deserved it. On the whole, a large majority of the Convention thought this power would be more safely lodged where they had finally vested it, than any where else. It was a power that must necessarily be lodged somewhere: political caution and republican jealousy rendered it improper for us to vest it in the President alone; the nature of negotiation, and the frequent recess of the House of Representatives, rendered that body an improper depository of this prerogative. The President and Senate joined were, therefore, after much deliberation, deemed the most eligible corps in whom we could with safety vest the diplomatic authority of the Union.
Hon. RAWLINS LOWNDES could not consider the representation of two thirds in the Senate as equal to the old Confederation, which required nine states. By this new Constitution, a quorum in the Senate might consist only of fourteen; two thirds of which were ten. Now, was this any thing like a check equal to the present? Was it consistent with prudence to vest so much power in the hands of so small a body of men, who might supersede every existing law in the Union? Here he read the 2d clause in the 6th article of the Constitution, viz.: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby—any thing in the Constitution or laws of any state to the contrary notwithstanding." Now, in the history of the known world, war, there an instance of the rulers of a republic being allowed to go so far? Even the most arbitrary kings possessed nothing like it. The tyrannical Henry VIII. had power given him by Parliament to issue proclamations that should have the same force as laws of the land; but this unconstitutional privilege had been justly reprobated and exploded. The king of France, though a despotic prince, (he meant no reflection on that prince; his opinion was very well known,) yet could not enforce his edicts until they had been registered in Parliament. In England, the ministers proceed with caution in making treaties: far from being considered as legal without parliamentary sanction, the preamble always stated that his majesty would endeavor to get it ratified by his Parliament. He observed, that the clause entirely did away the instalment law; for, when this Constitution came to be established, the treaty of peace might be pleaded against the relief which that law afforded. The honorable gentleman commented on the extensive powers given to the President, who was not, he believed, likely ever to be chosen from South Carolina or Georgia.
Gen. CHARLES COTESWORTH PINCKNEY rose to obviate some of the objections made by the honorable gentleman who sat down, and whose arguments, he thought, were calculated ad captandum, and did not coincide with that ingenuous, fair mode of reasoning he in general made use of. The treaty could not be construed to militate against our laws now in existence; and while we did not make, by law, any distinction between our citizens and foreigners; foreigners would be content. The treaty had been enrolled in the prothonotary's office by the express order of the judges. It had been adjudged, in a variety of cases, to be part of the law of the land, and had been admitted to be so whenever it was pleaded. If this had not been the case, and any individual state possessed a right to disregard a treaty made by Congress, no nation would have entered into a treaty with us.
The comparison made between kings and our President was not a proper one. Kings are, in general, hereditary, in whose appointment the people have no voice; whereas, in the election of our President, the people have a voice, and the state of South Carolina hath a thirteenth share in his appointment. In the election of senators. South Carolina has an equal vote with any other state; so has Georgia; and if we have a man as fit for the office of President in this state as in others, he did not think the being a southern man could be an objection. More than one president of Congress had been taken from this state. If we should not be represented in the Senate, it would be our own fault; the mode of voting in that body per capita, and not by states, as formerly, would be a strong inducement to us to keep up a full representation: the alteration was approved by every one of the Convention who had been a member of Congress. He then mentioned several instances of difficulties which he had been informed had occurred in Congress in determining questions of vast importance to the Union, on account of the members voting as states, and not individually. He did not think the Southern States would be remiss in keeping a full representation. Experience proved that the Eastern and the Southern States were most punctual in attendance. He understood that it was the Middle ones that principally neglected this duty.
Hon. JOHN RUTLEDGE (one of the delegates of the Federal Convention) thought the gentleman mistaken both as to law and fact; for every treaty was law paramount, and must operate. [Read part of the 9th article of Confederation.] In England, treaties are not necessarily ratified, as was proved when the British Parliament took up the last treaty of peace. A vote of disapprobation dispossessed Lord Shelburne, the minister, of his place; the Commons only addressed the king for having concluded a peace; yet this treaty is binding in our courts and in England. In that country, American citizens can recover debts due to them under the treaty; and in this, but for the treaty, what violences would have taken place! What security had violent tories, stealers of horses, and a number of lawless men, but a law that we passed for recognizing the treaty? There might have been some offenders punished; but if they had obtained a writ of habeas corpus, no doubt they would have been relieved. There was an obvious difference between treaties of peace and those of commerce, because commercial treaties frequently clashed with the laws upon that subject; so that It was necessary to be ratified in Parliament. As a proof that our present Articles of Confederation were paramount, it was there expressed that France should enjoy certain privileges. Now, supposing any law had passed taking those privileges away, would not the treaty be a sufficient bar to any local or municipal laws? What sort of power is that which leaves individuals in full power to reject or approve? Suppose a treaty was unexpectedly concluded between two nations at war; could individual subjects ravage and plunder under letters of marque and reprisal? Certainly not. The treaty concluded, even secretly, would be a sufficient bar to the establishment. Pray, what solid reasons could be urged to support gentlemen's fears that our new governors would wish to promote measures injurious to their native land? Was it not more reasonable that, if every state in the Union had a negative voice, a single state might be tampered with, and defeat every good intention? Adverting to the objection relative to the instalment law being done away, he asked, supposing a person gave security conformable to that law, whether, judging from precedent, the judges would permit any further proceedings contrary to it. He scouted the idea that only ten members would ever be left to manage the business of the Senate; yet, even if so, our delegates might be part of that ten, and consequently our interest secured. He described difficulties experienced in Congress in 1781 and 1782. In those times business of vast importance stood still because nine states could not be kept together. Having said that the laws would stand exactly as they did before, the chancellor asked whether gentlemen seriously could suppose that a President, who has a character at stake, would be such a fool and knave as to join with ten others to tear up liberty by the roots, when a full Senate were competent to impeach him.
Hon. RALPH IZARD gave a clear account of the manner in which edicts are registered in France, which, however, were legal without that ceremony. Even the kings of England had power to make treaties of peace or war. In the congress held at Utrecht, two treaties were agreed upon, one relative to peace, the other of commerce; the latter was not ratified, being found to clash with some laws in existence; yet the king's right to make it was never disputed.
Mr. SPEAKER (Hon. John Julius Pringle) said, that in general he paid great deference to the opinions of the gentleman, (Mr. Lowndes,) because they flowed from good natural sense, matured by much reflection and experience. On this occasion, he entirely disagreed with him. The gentleman appeared extremely alarmed by a phantom of his own creation—a phantom, like every other, without body or substance, and which will vanish as soon as touched. If the objections which we may have to other parts of the Constitution be no better founded than to this article, the Constitution will pass through the medium of this house, like gold through the crucible, the purer, and with much greater lustre. His objections will only serve to confirm the sentiments of those who favor it. All the gentleman's objections may be comprised in the following compass: By the article, the President, with ten senators, if only ten attend, may make treaties to bind all the states—that the treaties have the force of, and indeed are paramount to, the laws of the land—therefore, the President and Senate have a legislative power; and then he gives scope to a great deal of declamation on the vast danger of their having such legislative power, and particularly that they might have a treaty which might thus repeal the instalment law. This is a greater power, he says, than the king of France has; the king of Great Britain has his ratified by Parliament—the treaties of the French king must be registered. But he conceived the gentleman was mistaken as to those treaties made by these monarchs. The king of France registers his edicts on some occasions, to facilitate the execution, but not his treaties. The king of Great Britain's treaties are discussed by Parliament, not for ratification, but to discover whether the ministers deserve censure or approbation. The making of treaties is justly a part of their prerogative: it properly belongs to the executive part of government, because they must be conducted with dispatch and secrecy not to be expected in larger assemblies. No such dangers as the gentleman apprehends can ensue from vesting it with the President and Senate. Although the treaties they make may have the force of laws when made, they have not, therefore, legislative power. It would be dangerous, indeed, to trust them with the power of making laws to affect the rights of individuals; for this might tend to the oppression of individuals, who could not obtain redress. All the evils would, in that case, flow from blending the legislative, executive, and judicial powers. This would violate the soundest principles of policy and government. It is not with regard to the power of making treaties as of legislation in general. The treaties will affect all the individuals equally of all the states. If the President and Senate make such as violate the fundamental laws, and subvert the Constitution, or tend to the destruction of the happiness and liberty of the states, the evils, equally oppressing all, will be removed as soon as felt, as those who are oppressed have the power and means of redress. Such treaties, not being made with good faith, and on the broad basis of reciprocal interest and convenience, but by treachery and a betraying of trust, and by exceeding the powers with which the makers were intrusted, ought to be annulled. No nations would keep treaties thus made. Indeed, it is too much the practice for them to make mutual interest and convenience the rule of observation, or period of duration. As for the danger of repealing the instalment law, the gentleman has forgot that one article ordains that there shall be no retrospective law. The President and Senate will, therefore, hardly ever make a treaty that would be of this kind. After other arguments to obviate the objections of the honorable gentleman, Mr. Speaker concluded with saying, that it was not necessary for him to urge what further occurred to him, as he saw several of the honorable members of the Convention preparing, whose duty it more particularly was, and who were more able to confute the honorable gentleman in opposition.
Dr. DAVID RAMSAY asked if the gentleman meant us ever to have any treaties at all. If not superior to local laws, who will trust them? Would not the question naturally be, "Did you mean, when you made treaties, to fulfil them?" Establish once such a doctrine, and where will you find ambassadors? If gentlemen had been in the situation of receiving similar information with himself, they would have heard letters read from our ambassadors abroad, in which loud complaints were made that America had become faithless and dishonest. Was it not full time that such conduct as this should be amended?
Gen. CHARLES COTESWORTH PINCKNEY rose to mention some instances he had omitted of the treaty with Great Britain being considered in our courts as part of the law of the land. The judge who held the court at Ninety-six discharged upwards of one hundred recognizances of persons committed for different crimes, which fell within the meaning of this treaty. A man named Love, accused of murder, was liberated. It is true, the people, enraged at the enormity of his conduct, hanged him soon after; but of this the judicial power knew nothing until after its perpetration. Another murderer was allowed to plead the treaty of peace in bar, that had conducted General Pickens's brother into the hands of the Indians, who soon after put him to death.
Hon. RAWLINS LOWNDES desired gentlemen to consider that his antagonists were mostly gentlemen of the law, who were capable of giving ingenious explanations to such points as they wished to have adopted. He explained his opinion relative to treaties to be, that no treaty concluded contrary to the express laws of the land could be valid. The king of England, when he concluded one, did not think himself warranted to go further than to promise that he would endeavor to induce his Parliament to sanction it. The security of a republic is jealousy; for its ruin may be expected from unsuspecting security. Let us not, therefore, receive this proffered system with implicit confidence, as (tarrying with it the stamp of superior perfection; rather let us compare what we already possess with what we are offered for it. We are now under the government of a most excellent constitution, one that had stood the test of time, and carried us through difficulties generally supposed to be insurmountable; one that had raised us high in the eyes of all nations, and given to us the enviable blessings of liberty and independence; a constitution sent like a blessing from Heaven; yet we are impatient to change it for another, that vested power in a few men to pull down that fabric, which we had raised at the expense of our blood. Charters ought to be considered as sacred things. In England, an attempt was made to alter the charter of the East India Company; but they invoked heaven and earth in their cause; moved lords, nay, even the king, in their behalf, and thus averted the ruin with which they were threatened.
It has been said that this new government was to be considered as an experiment. He really was afraid it would prove a fatal one to our peace and happiness. An experiment! What, risk the loss of political existence on experiment! No, sir; if we are to make experiments, rather let them be such as may do good, but which cannot possibly do any injury to us or our posterity. So far from having any expectation of success from such experiments, he sincerely believed that, when this new Constitution should be adopted, the sun of the Southern States would set, never to rise again.
To prove this, he observed, that six of the Eastern States formed a majority in the House of Representatives. In the enumeration he passed Rhode Island, and included Pennsylvania. Now, was it consonant with reason, with wisdom, with policy, to suppose, in a legislature where a majority of persons sat whose interests were greatly different from ours, that we had the smallest chance of receiving adequate advantages? Certainly not. He believed the gentlemen that went from this state, to represent us in Convention, possessed as much integrity, and stood as high in point of character, as any gentlemen that could have been selected; and he also believed that they had done every thing in their power to procure for us a proportionate share in this new government; but the very little they had gained proved what we may expect in future—that the interest of the Northern States would so predominate as to divest us of any pretensions to the title of a republic. In the first place, what cause was there for jealousy of our importing negroes? Why confine us to twenty years, or rather why limit us at all? For his part, he thought this trade could be justified on the principles of religion, humanity, and justice; for certainly to translate a set of human beings from a bad country to a better, was fulfilling every part of these principles. But they don't like our slaves, because they have none themselves, and therefore want to exclude us from this great advantage. Why should the Southern States allow of this, without the consent of nine states?
Judge PENDLETON observed, that only three states, Georgia, South Carolina, and North Carolina, allowed the importation of negroes. Virginia had a clause in her Constitution for this purpose, and Maryland, he believed, even before the war, prohibited them.
Mr. LOWNDES continued—that we had a law prohibiting the importation of negroes for three years, a law he greatly approved of; but there was no reason offered why the Southern States might not find it necessary to alter their conduct, and open their ports. Without negroes, this state would degenerate into one of the most contemptible in the Union; and he cited an expression that fell from General Pinckney on a former debate, that whilst there remained one acre of swamp-land in South Carolina, he should raise his voice against restricting the importation of negroes. Even in granting the importation for twenty years, care had been taken to make us pay for this indulgence, each negro being liable, on importation, to pay a duty not exceeding ten dollars; and, in addition to this, they were liable to a capitation tax. Negroes were our wealth, our only natural resource; yet behold how our kind friends in the north were deter mined soon to tie up our hands, and drain us of what we had! The Eastern States drew their means of subsistence, in a great measure, from their shipping; and, on that head, they had been particularly careful not to allow of any burdens: they were not to pay tonnage or duties; no, not even the form of clearing out: all ports were free and open to them! Why, then, call this a reciprocal bargain, which took all from one party, to bestow it on the other!
Major BUTLER observed, that they were to pay five per cent. impost.
This, Mr. LOWNDES proved, must fall upon the consumer. They are to be the carriers; and, we being the consumers, therefore all expenses would fall upon us. A great number of gentlemen were captivated with this new Constitution, because those who were in debt would be compelled to pay; others pleased themselves with the reflection that no more confiscation laws would be passed; but those were small advantages, in proportion to the evils that might be apprehended from the laws that might be passed by Congress, whenever there was a majority of representatives from the Eastern States, who were governed by prejudices and ideas extremely different from ours. He was afraid, in the present instance, that so much partiality prevailed for this new Constitution, that opposition from him would be fruitless: however, he felt so much the importance of the subject, that he hoped the house would indulge him in a few words, to take a view, comparatively, of the old constitution and the new one, in point of modesty. Congress, laboring under many difficulties, asked to regulate commerce for twenty-one years, when the power reverted into the hands of those who originally gave it; but this infallible new Constitution eased us of any more trouble, for it was to regulate commerce ad infinitum; and thus called upon us to pledge ourselves and posterity, forever, in support of their measures; so when our local legislature had dwindled down to the confined powers of a corporation, we should be liable to taxes and excise; not, perhaps, payable in paper, but in specie. However, they need not be uneasy, since every thing would be managed in future by great men; and great men, every body knew, were incapable of acting under mistake or prejudice: they were infallible; so that if, at any future period, we should smart under laws which bore hard upon us, and think proper to remonstrate, the answer would probably be, "Go: you are totally incapable of managing for yourselves. Go: mind your private affairs; trouble not yourselves with public concerns—'Mind your business.'" The latter expression was already the motto of some coppers in circulation, and he thought it would soon be the style of language held out towards the Southern States. The honorable member apologized for going into the merits of this new Constitution, when it was ultimately to be decided on by another tribunal; but understanding that he differed in opinion with his constituents, who were opposed to electing any person as a member of the Convention that did not approve of the proposed plan of government, he should not therefore have an opportunity of expressing those sentiments which occurred to him on considering the plan for a new federal government. But if it was sanctioned by the people, it would have his hearty concurrence and support. He was very much, originally, against a declaration of independency; he also opposed the instalment law; but when they received the approbation of the people, it became his duty, as a good citizen, to promote their due observance.
Hon. E. RUTLEDGE was astonished to hear the honorable gentleman pass such eulogium on the old Confederation, and prefer it, as he had done, to the one before the house. For his part, he thought that Confederation so very weak, so very inadequate to the purposes of the Union, that, unless it was materially altered, the sun of American independence would indeed soon set—never to rise again. What could be effected for America under that highly-extolled constitution? Could it obtain security for our commerce in any part of the world? Could it force obedience to any one law of the Union? Could it obtain one shilling of money for the discharge of the most honorable obligations? The honorable gentleman knew it could not. Was there a single power in Europe that would lend us a guinea on the faith of that Confederation? or could we borrow one on the public faith of our own citizens? The people of America had seen these things; they had felt the consequences of this, feeble government, if that deserved the name of government which had no power to enforce laws founded on solemn compact; and it was under the influence of those feelings that with almost one voice, they had called for a different government. But the honorable gentleman had said that this government had carried us gloriously through the last war. Mr. Rutledge denied the assertion. It was true we had passed gloriously through the war while the Confederation was in existence; but that success was not to be attributed to the Confederation; it was to be attributed to the firm and unconquerable spirit of the people, who were determined, at the hazard of every consequence, to oppose a submission to British government; it was to be attributed to the armaments of an ally, and the pecuniary assistance of our friends: these were the wings on which we were carried so triumphantly through the war; and not this wretched Confederation, which is unable, by universal acknowledgment, to obtain a discharge of any part of our debts in the hour of the most perfect domestic tranquility. What benefits, then, are to be expected from such a constitution in the day of danger? Without a ship, without a soldier, without a shilling in the federal treasury, and without a nervous government to obtain one, we hold the property that we now enjoy at the courtesy of other powers. Was this such a tenure as was suitable to the inclinations of our constituents? It certainly was not. They had called upon us to change their situation, and we should betray their interest, and our own honor, if we neglected it. But the gentleman has said that there were points in this new confederation which would endanger the rights of the people—that the President and ten senators may make treaties, and that the balance between the states was not sufficiently preserved—that he is for limiting the powers of Congress, so that they shall not be able to do any harm; for, if they have the power to do any harm, they may. To this Mr. Rutledge observed, that the greatest part of the honorable gentleman's objection was founded on an opinion that the choice of the people would fall on the most worthless and the most negligent part of the community; but if it was to be admitted, it would go to the withholding of all power from all public bodies. The gentleman would have done well to have defined the kind of power that could do no harm. The very idea of power included a possibility of doing harm; and if the gentleman would show the power that could do no harm, he would at once discover it to be a power which could do no good. To argue against the use of a thing from the abuse of it, had long since been exploded by all sensible people. It was true that the President, with the concurrence of two thirds of the Senate, might make treaties; and it was possible that ten senators might constitute the two thirds, but it was just within the reach of possibility, and a possibility from whence no danger could be apprehended. If the President or the senators abused their trust, they were liable to impeachment and punishment; and the fewer that were concerned in the abuse of the trust, the more certain would be the punishment. In the formation of this article, the delegates had done their duty fully; they had provided that two thirds of the Senate should concur in the making of treaties. If the states should be negligent in sending their senators, it would be their own fault, and the injury would be theirs, not the framers of the Constitution; but if they were not negligent, they would have more than their share. Is it not astonishing that the gentleman who is so strenuous an advocate for the powers of the people, should distrust the people the moment that power is given to them, and should found his objections to this article in the corruption of the representatives of the people, and in the negligence of the people themselves? If such objections as these have any weight, they tend to the destruction of all confidence—the withholding of all power—the annihilation of all government. Mr. Rutledge insisted that we had our full share in the House of Representatives, and that the gentleman's fears of the northern interest prevailing at all times were ill-founded. The Constitution had provided for a census of the people, and the number of representatives was to be directed by the number of the people in the several states; this clause was highly favorable to the southern interest. Several of the Northern States were already full of people: it was otherwise with us; the migrations to the south were immense, and we should, in the course of a few years, rise high in our representation, whilst other states would keep their present position. Gentlemen should carry their views into futurity, and not confine themselves to the narrow limits of a day, when contemplating a subject of such vast importance. The gentleman had complained of the inequality of the taxes between the Northern and Southern States; that ten dollars a head was imposed on the importation of negroes; and that those negroes were afterwards taxed. To this it was answered, that the ten dollars per head was an equivalent to the five per cent. on imported articles; and as to their being afterwards taxed, the advantage is on our side, or, at least, not against us.
In the Northern States the labor is performed by white people, in the Southern by black. All the free people (and there are few others) in the Northern States are to be taxed by the new Constitution; whereas only the free people, and two fifths of the slaves, in the Southern States, are to be rated, in the apportioning of taxes. But the principal objection is, that no duties are laid on shipping; that, in fact, the carrying trade was to be vested, in a great measure, in the Americans; that the ship-building business was principally carried on in the Northern States. When this subject is duly considered, the Southern States should be the last to object to it. Mr. Rutledge then went into a consideration of the subject; after which the house adjourned.