Agrippa XIII

James Winthrop

14 January 1788

by James Winthrop

(concluded from our last)

To the Massachusetts Convention.

Gentlemen,

The question then arises, what is the kind of government best adapted to the object of securing our persons and possessions from violence'! I answer, a FEDERAL REPUBLICK. By this kind of government each state reserves to itself the right of making and altering its laws for internal regulation, and the right of executing those laws without any external restraint, while the general concerns of the empire are committed to an assembly of delegates, each accountable to his own constituents. This is the happy form under which we live, and which seems to mark us out as a people chosen of God. No instance can be produced of any other kind of government so stable and energetic as the republican. The objection drawn from the Greek and Roman states does not apply to the question. Republicanism appears there in its most disadvantageous form. Arts and domestick employments were generally commited to slaves, while war was almost the only business worthy of a citizen. Hence arose their internal dissensions. Still they exhibited proofs of legislative wisdom and judicial integrity hardly to be found among their monarchic neighbors. On the other hand we find Carthage cultivating commerce, and extending her dominions for the long space of seven centuries, during which term the internal tranquility was never disturbed by her citizens. Her national power was so respectable. that for a long time it was doubtful whether Carthage or Rome should rule. In the form of their government they bore a strong resemblance to each other. Rome might be reckoned a free state for about four hundred and fifty years. We have then the true line of distinction between those two nations. and a strong proof of the hardy materials which compose a republican government. If there was no other proofs we might with impartial judges risk the issue upon this alone. But our proof rests not here. The present state of Europe, and the vigour and tranquillity of our own governments. after experiencing this form for a century and an half. are decided proofs in favour of those governments which encourage commerce. A comparison of our own country, first with Europe and then with the other parts of the world. will prove. beyond a doubt, that the greatest share of freedom is enjoyed by the citizens. so much more does commerce flourish. The reason is, that every citizen has an influence in making the laws, and thus they are conformed to the general interests of the state; but in every other kind of government they are frequently made in favour of a part of the community at the expense of the rest.

The argument against republicks, as it is derived from the Greek and Roman states, is unfair. It goes on the idea that no other government is subject to be disturbed. As well might we conclude. that a limited monarchy is unstable. because, that under the feudal system. the nobles frequently made war upon their king, and disturbed the publick peace. We find, however, in practice, that limited monarchy is more friendly to commerce. because more friendly to the rights of the subject, than an absolute government; and that it is more liable to be disturbed than a republick, because less friendly to trade and the rights of individuals. There cannot. from the history of mankind, be produced an instance of rapid growth in extent. in numbers. in arts, and in trade, that will bear any comparison with our country. This is owing to what the friends of the new system, and the enemies of the revolution. for I take them to be nearly the same. would term our extreme liberty. Already, have our ships visited every part of the world, and brought us their commodities in greater perfection, and at a more moderate price, than we ever before experienced. The ships of other nations crowd to our ports, seeking an intercourse with us. All the estimates of every party make the balance of trade for the present year to be largely in our favour. Already have some very useful, and some elegant manufactures got established among us, so that our country every day is becoming independent in her resources. Two thirds of the continental debt has been paid since the war, and we are in alliance with some of the most respectable powers of Europe. The western lands, won from Britain by the sword, are an ample fund for the principal of all our publick debts; and every new sale excites that manly pride which is essential to national virtue. All this happiness arises from the freedom of our institutions and the limitted nature of our government; a government that is respected from principles of affection, and obeyed with alacrity. The sovereigns of the old world are frequently, though surrounded with armies, treated with insult; and the despotick monarchies of the east, are the most fluctuating, oppressive and uncertain governments of any form hitherto invented. These considerations are sufficient to establish the excellence of our own form, and the goodness of our prospects.

Let us now consider the probable effects of a consolidation of the separate states into one mass; for the new system extends so far. Many ingenious explanations have been given of it; but there is this defect, that they are drawn from maxims of the common law, while the system itself cannot be bound by any such maxims. A legislative assembly has an inherent right to alter the common law, and to abolish any of its principles, which are not particularly guarded in the constitution. Any system therefore which appoints a legislature without any reservation of the rights of individuals, surrender[s] all power in every branch of legislation to the government. The universal practice of every government proves the justness of this remark; for in every doubtful case it is an established rule to decide in favour of authority. The new system is, therefore, in one respect at least, essentially inferiour to our state constitutions. There is no bill of rights, and consequently a continental law may controul any of those principles, which we consider at present as sacred; while not one of those points, in which it is said that the separate governments misapply their power, is guarded. Tender acts and the coinage of money stand on the same footing of a consolidation of power. It is a mere fallacy, invented by the deceptive powers of mr. Wilson, that what rights are not given are reserved. The contrary has already been shewn. But to put this matter of legislation out of all doubt, let us compare together some parts of the book; for being an independent system, this is the only way to ascertain its meaning.

In article III, section 2, it is declared, that "the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority." Among the cases arising under this new constitution are reckoned, "all controversies between citizens of different state s," which include all kinds of civil causes between those parties. The giving Congress a power to appoint courts for such a purpose is as much, there being no stipulation to the contrary, giving them power to legislate for such causes, as giving them a right to raise an army, is giving them a right to direct the operations of the army when raised. But it is not left to implication. The last clause of article I, section 8, expressly gives them power "to make all laws which shall be needful 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. " It is, therefore, as plain as words can make it, that they have a right by this proposed form to legislate for all kinds of causes respecting property between citizens of different states. That this power extends to all cases between citizens of the same state, is evident, from the sixth article, which declares all continental laws and treaties to be the supreme law of the land, and that all state judges are bound thereby, ``any thing in the constitution or laws of any state to the contrary notwithstanding." If this is not binding the judges of the separate states in their own office, by continental rules, it is perfect nonsense. There is then a complete consolidation of the legislative powers in all cases respecting property. This power extends to all cases between a state and citizens of another state. Hence a citizen, possessed of the notes of another state, may bring his action, and there is no limitation that the execution shall be levied on the publick property of the state but the property of individuals is liable. This is a foundation for endless confusion and discord. This, right to try causes between a state and citizens of another state, involves in it all criminal causes; and a man who has accidentally transgressed the laws of another state, must be transported, with all his witnesses, to a third state, to be tried. He must be ruined to prove his innocence. These are necessary parts of the new system, and it will never be complete till they are reduced to practice. They effectually prove a consolidation of the states, and we have before shewn the ruinous tendency of such a measure.

By sect. 8. of article 1, Congress are to have the unlimited right to regulate commerce, external and internal, and may therefore create monopolies which have been universally injurious to all the subjects of the countries that have adopted them, excepting the monopolists themselves. They have also the unlimited right to imposts and all kinds of taxes as well to levy as to collect them. They have indeed very nearly the same powers claimed formerly by the British parliament. Can we have so soon forgot our glorious struggle with that power, as to think a moment of surrendering it now? It makes no difference in principle whether the national assembly was elected for seven years or for six. In both cases we should vote to great disadvantage. and therefore ought never to agree to such an article. Let us make provision for the payment of the interest of our part of the debt, and we shall be fairly acquitted. Let the fund be an impost on our foreign trade, and we shall encourage our manufactures. But if we surrender the unlimitted right to regulate trade and levy taxes, imposts will oppress our foreign trade for the benefit of other states, while excises and taxes will discourage our internal industry. The right to regulate trade, without any limitations, will, as certainly as it is granted. transfer the trade of this state to Pennsylvania, That will be the seat of business and of wealth. while the extremes of the empire will, like Ireland and Scotland, be drained to fatten an overgrown capital. Under our present equal advantages, the citizens of this state come in for their full share of commercial profits. Surrender the rights of taxation and commercial regulation, and the landed states at the southward will all be interested in draining our resources; for whatever can be got by impost on our trade and excises on our manufactures, will be considered as so much saved to a state inhabited by planters. All savings of this sort ought surely to be made in favour of our own state; and we ought never to surrender the unlimited powers of revenue and trade to uncommercial people. If we do, the glory of the state from that moment departs, never to return.

The safety of our constitutional rights consists in having the business of government lodged in different departments, and in having each part well defined. By this means each branch is kept within the constitutional limits. Never was a fairer line of distinction than what may be easily drawn between the continental and state governments. The latter provide for all cases, whether civil or criminal, that can happen ashore, because all such causes must arise within the limits of some state. Transactions between citizens may all be fairly included in this idea, even although they should arise in passing by water from one state to another. But the intercourse between us and foreign nations, properly forms the department of Congress. They should have the power of regulating trade under such limitations as should render their laws equal. They should have the right of war and peace, saving the equality of rights, and the territory of each state. But the power of naturalization and internal regulation should not be given them. To give my scheme a more systematic appearance, I have thrown it into the form of a resolve, which is submitted to your wisdom for amendment, but not as being perfect.

"Resolved, that the form of government proposed by the federal convention, lately held in Philadelphia, be rejected on the part of this commonwealth; and that our delegates in Congress are hereby authorised to propose on the part of this commonwealth, and, if the other states for themselves agree thereto, to sign an article of confederation, as an addition to the present articles, in the form following, provided such agreement be made on or before the first day of January, which will be in the year of our Lord 1790; the said article shall have the same force and effect as if it had been inserted in the original confederation, and is to be construed consistently with the clause in the former articles, which restrains the United States from exercising such powers as are not expressly given.

"XIV. The United States shall have power to regulate, whether by treaty, ordinance. or law, the intercourse between these states and foreign dominions and countries, under the following restrictions. No treaty, ordinance, or law shall give a preference to the ports of one state over those of another; nor 2d. impair the territory or internal authority of any state; nor 3d. create any monopolies or exclusive companies; nor 4th. naturalise any foreigners. All their imposts and prohibitions shall be confined to foreign produce and manufactures imported, and to foreign ships trading in our harbours. All imposts and confiscations shall be to the use of the state where they shall accrue, excepting only such branches of impost, as shall be assigned by the separate states to Congress for a fund to defray the interest of their debt, and their current charges. In order the more effectually to execute this and the former articles, Congress shall have authority to appoint courts, supreme & subordinate, with power to try all crimes, not relating to state securities, between any foreign state, or subject of such state, actually residing in a foreign country, and not being an absentee or person who has alienated himself from these states on the one part. and any of the United States or citizens thereof on the other part; also all causes in which foreign ambassadors or other foreign ministers resident here shall be immediately concerned, respecting the jurisdiction or immunities only. And the Congress shall have authority to execute the judgment of such courts by their own affairs. Piracies and felonies committed on the high seas shall also belong to the department of Congress for them to define, try, and punish, in the same manner as the other causes shall be defined, tried, and determined. All the before-mentioned causes shall be tried by jury and in some sea-port town. And it is recommended to the general court at their next meeting to provide and put Congress in possession of funds arising from foreign imports and ships sufficient to defray our share of the present annual expenses of the continent."

Such a resolve explicitly limitting the powers granted is the farthest we can proceed with safety. The scheme of accepting the report of the Convention, and amending it afterwards, is merely delusive. There is no intention among those who make the proposition to amend it at all. Besides, if they have influence enough to get it accepted in its present form. There is no probability, that they will consent to an alteration when possessed of an unlimited revenue. It is an excellence in our present confederation, that it is extremely difficult to alter it. An unanimous vote of the states is required. But this newly proposed form is founded in injustice, as it proposes that a fictitious consent of only nine states shall be sufficient to establish it, Nobody can suppose that the consent of a state is any thing more than a fiction, in the view of the federalists, after the mobbish influence used over the Pennsylvania convention. The two great leaders of the plan, with a modesty of Scotsmen, placed a rabble in the gallery to applaud their speeches, and thus supplied their want of capacity in the argument. Repeatedly were Wilson and M' Kean worsted in the argument by the plain good sense of Finally and Smilie. But reasoning or knowledge had little to do with the federal party. Votes were all they wanted by whatever means obtained. Means not less criminal have been mentioned among us. But votes that are bought can never justify a treasonable conspiracy. Better, far better, would it be to reject the whole, and remain in possession of present advantages. The authority of Congress to decide disputes between states is sufficient to prevent their recurring to hostility: and their different situation, wants and produce is a sufficient foundation for the most friendly intercourse. All the arts of delusion and legal chicanery will be used to elude your vigilance, and obtain a majority. But keeping the constitution of the state, and the publick interest in view, will be your safety.

(We are obliged contrary to our intention, to postpone the remainder of Agrippa till our next.)