Impartial Examiner I

20 February 1788


To the free people of Virginia.

Countrymen and Fellow-Citizens,

That the subject, which has given rise to the following observations, is of the highest consequence to this country, requires not the aid of logical proof; that it merits the most serious attention of every member of this community, is a fact not to be controverted. Will not a bare mention of the new Foederal Constitution justify this remark? To foreigners or such, whose local connections form no permanent interest in America, this may be totally indifferent; and to them it may afford mere matter of speculation and private amusement. When such advert to the high and distinguished characters, who have drawn up, and proposed a set of articles to the people of an extensive continent as a form of their future government, an emotion of curiosity may induce them to examine the contents of those articles: and they may, perhaps, from having contemplated on a former situation of those people—that they had struggled against a potent enemy—that they had by their virtuous and patriotic exertions rescued themselves from impending danger—that they had used the like endeavors to establish for themselves a system of government upon free and liberal principles—that they had in pursuance of those endeavors chosen a system, as conducive to the great ends of human happiness, the preservation of their natural rights and liberties— that this system has prevailed but a few years; and now already a change, a fundamental change therein is meditated:—strangers, I say, having contemplated on these circumstances, may be led to consider this nation, as a restless and dissatisfied people, whose fickle inconsistent minds suffer them not to abide long in the same situation; who perpetually seeking after new things throw away one blessing in pursuit of another: and while they are thus indulging their caprice—lose all, ere any can ripen into maturity. If the unconcerned part of those among us entertain themselves in this manner, can any good American be content to deserve such reflections? Will not all rather feel an honest indignation, if they once perceive their country stamped with a character like this? And yet, may we not justify such conceptions, if we thus precipitate ourselves into a new government before we have sufficiently tried the virtues of the old? So incident is error to the human mind, that it is not to be wondered at indeed, if our present Constitution is incomplete. The best regulated governments have their defects, and might perhaps admit of improvement: but the great difficulty consists in clearly discovering the most exceptionable parts and judiciously applying the amendments. A wise nation will, therefore, attempt innovations of this kind with much circumspection. They will view the political fabric, which they have once reared, as the sacred palladium of their happiness;—they will touch it, as a man of tender sensibility toucheth the apple of his own eye,—they will touch it with a light, with a trembling—with a cautious hand,—lest they injure the whole structure in endeavoring to reform any of its parts. In small and trivial points alterations may be attempted with less danger; but— where the very nature, the essence of the thing is to be changed: when the foundation itself is to be transformed, and the whole plan entirely new modelled;—should you not hesitate, O Americans? Should you not pause —and reflect a while on the the important step, you are about to take? Does it not behove you to examine well into the nature and tendency of the Constitution now proposed for your adoption? And by comparing it with your present mode of government, endeavor to distinguish which of the two is most eligible? Whether this or that is best calculated for promoting your happiness? for obtaining and securing those benefits, which are the great object of civil society? Will it be consistent with the duty, which you owe to yourselves, as a nation, or with the affection, which you ought to bear for your posterity, if you rashly or inconsiderately adopt a measure, which is to influence the fate of this country for ages yet to come? How will it accord with your dignity and reputation, as an independent people, if either through an over-weaning fondness for novelty you are suddenly transported on the wings of imagination, and too hastily make up your thoughts on this great subject; or by sinking into a listless inactivity of mind, view it as an indifferent matter unworthy of any deliberate consideration? Will any respect? Will any honor? Will any veneration be due to the memory of yourselves, as ancestors, if millions of beings, who have not yet received their birth, when you are all mouldered into dust, should find themselves fixed in a miserable condition by one injudicious determination of your's at this period? If you see no impropriety in these questions, the suggestions contained in them will not appear altogether unworthy of attention. One moment's reflection, it is humbly presumed, will render it obvious that on this occasion they are not impertinently propounded.

In pursuing this address I beg leave to premise that the only true point of distinction between arbitrary and free governments seems to be, that in the former the governors are invested with powers of acting according to their own wills, without any other limits than what they themselves may understand to be necessary for the general good; whereas in the latter they are intrusted with no such unlimited authority, but are restrained in their operations to conform to certain fundamental principles, the preservation whereof is expressly stipulated for in the civil compact: and whatever is not so stipulated for is virtually and impliedly given up. Societies so constituted invest their supreme governors with ample powers of exerting themselves according to their own judgment in every thing not inconsistent with or derogatory to those principles; and so long as they adhere to such restrictions, their deeds ought not to be rescinded or controuled by any other power whatsoever. Those principles are certain inherent rights pertaining to all mankind in a state of natural liberty, which through the weakness, imperfection, and depravity of human nature cannot be secured in that state. Men, therefore, agree to enter into society, that by the united force of many the rights of each individual may be protected and secured. These are in all just governments laid down as a foundation to the civil compact, which contains a covenant between each with all, that they shall enter into one society to be governed by the same powers; establishes for that purpose the frame of government; and consequently creates a Convention between every member, binding those, who shall at any time be intrusted with power, to a faithful administration of their trust according to the form of the civil policy, which they have so constituted, and obliging all to a due obedience therein. There can be no other just origin of civil power, but some such mutual contract of all the people: and although their great object in forming society is an intention to secure their natural rights; yet the relations arising from this political union create certain duties and obligations to the state, which require a sacrifice of some portion of those rights and of that exuberance of liberty, which obtains in a state of nature. —This, however, being compensated by certain other adventitious rights and privileges, which are acquired by the social connection; it follows that the advantages derived from a government are to be estimated by the strength of the security, which is attended at once with the least sacrifice and the greatest acquired benefits. That government, therefore, which is best adapted for promoting these three great ends, must certainly be the best constituted scheme of civil policy. Here, then, it may not be improper to remark that persons forming a social community cannot take too much precaution when they are about to establish the plan of their government. They ought to construct it in such a manner as to procure the best possible security for their rights;—in doing this they ought to give up no greater share than what is understood to be absolutely necessary:—and they should endeavor so to organize, arrange and connect it's several branches, that when duly exercised it may tend to promote the common good of all, and contribute as many advantages, as the civil institution is capable of. It has been before observed that the only just origin of civil power is a contract entered into by all the people for that purpose.—If this position be true (and, I dare presume, it is not controverted, at least in this country) right reason will always suggest the expediency of adhering to the essential requisites in forming that contract upon true principles. A cautious people will consider all the inducements to enter into the social state, from the most important object down to the minutest prospect of advantage. Every motive with them will have its due weight. They will not pay a curious attention to trifles and overlook matters of great consequence:—and in pursuing these steps they will provide for the attainment of each point in view with a care—with an earnestness proportionate to its dignity, and according as it involves a greater or a lesser interest. It is evident, therefore that they should attend most diligently to those sacred rights, which they have received with their birth, and which can neither be retained to themselves, nor transmitted to their posterity, unless they are expressly reserved: for it is a maxim, I dare say, universally acknowledged, that when men establish a system of government, in granting the powers therein they are always understood to surrender whatever they do not so expressly reserve. This is obvious from the very design of the civil institution, which is adopted in lieu of the state of natural liberty, wherein each individual, being equally intitled to the enjoyment of all natural rights, and having equally a just authority to exercise full powers of acting, with relation to other individuals, in any manner not injurious to their rights, must, when he enters into society, be presumed to give up all those powers into the hands of the state by submitting his whole conduct to the direction thereof. This being done by every member, it follows, as a regular conclusion, that all such powers, whereof the whole were possessed, so far as they related to each other individually, are of course given up by the mere act of union. If this surrender be made without any reservation, the conclusion is equally plain and regular, that each and all have given up not only those powers, which relate to others, but likewise every claim, which pertained to themselves, as individuals. For the universality of the grant in this case must necessarily include every power of acting, and every claim of possessing or obtaining any thing—except according to the regulations of the state. Now a right being properly defined, "a power or claim established by law, to act, or to possess, or to obtain something from others,"4 every natural right is such power or claim established by the law of nature. Thus, it is manifest, that in a society constituted after this manner, every right whatsoever will be under the power and controul of the civil jurisdiction. This is the leading characteristic of an arbitrary government, and whenever any people establish a system like this, they subject themselves to one, which has not a single property of a free constitution. Hence results the necessity of an express stipulation for all such rights as are intended to be exempted from the civil authority.

Permit me now, my country men, to make a few observations on the proposed Foederal Constitution. In this attempt the subject, as it is arduous and difficult, naturally impresses the modest mind with diffidence: yet being of the last importance, as involving in it the highest interest, that freemen can have—all that is dear and valuable to the citizens of these United States; a consciousness of the strong claim, which this subject has, to a free and general discussion, has prevailed over that discouraging idea so far as to produce the present address to you. This is done with a reliance on that benevolence and liberality of sentiment, with which you have hitherto been actuated. From these benign qualities, it is hoped, the most favorable indulgence will be granted, and that the zeal, with which this is written, will be allowed in some measure an excuse for its defects. However imperfect, therefore this may be, however inadequate to your own ideas, or to the wishes of him, who offers it to your consideration; you are hereby intreated to let the perusal, with which you may think proper to favor it, be serious, candid, dispassionate—as it relates to a common cause, in which all are alike concerned.

Suffer me, then, in the first place to advert to a part of the sixth article in this constitution. It may, perhaps, appear somewhat irregular, to begin with this article, since it is almost the last proposed: yet, if it be considered that this at once defines the extent of Congressional authority, and indisputably fixes its supremacy, every idea of impropriety on this head will probably vanish. The clause alluded to contains the following words, "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." If this constitution should be adopted, here the sovereignty of America is ascertained and fixed in the foederal body at the same time that it abolishes the present independent sovereignty of each state. Because this government being general, and not confined to any particular part of the continent; but pervading every state and establishing its authority equally in all, its superiority will consequently be recognized in each; and all other powers can operate only in a secondary subordinate degree. For the idea of two sovereignties existing within the same community is a perfect solecism. If they be supposed equal, their operation must be commensurate, and like two mechanical powers of equal momenta counteracting each other;—there the force of the one will be destroyed by the force of the other: and so there will be no efficiency in either. If one be greater than the other, they will be similar to two unequal bodies in motion with a given degree of velocity, and impinging each other from opposite points; —the motion of the lesser in this case will necessarily be destroyed by that of the greater: and so there will be efficiency only in the greater. But what need is there for a mathematical deduction to shew the impropriety of two such distinct co-existing sovereignties? The natural understanding of all mankind perceives the apparent absurdity arising from such a supposition: since, if the word means any thing at all, it must mean that supreme power, which must reside somewhere instate; or, in other terms, it is the united powers of each individual member of the state collected and consolidated into one body. This collection, this union, this supremacy of power can, therefore, exist only in one body. This is obvious to every man: and it has been very properly suggested that under the proposed constitution each state will dwindle into "the insignificance of a town corporate." This certainly will be their utmost consequence; and, as such, they will have no authority to make laws, even for their own private government any farther than the permissive indulgence of Congress may grant them leave. This, Virginians, will be your mighty, your enviable situation after all your struggles for independence! and, if you will take the trouble to examine, you will find that the great, the supereminent authority, with which this instrument of union proposes to invest the foederal body, is to be created without a single check —without a single article of covenant for the preservation of those inestimable rights, which have in all ages been the glory of freemen. It is true, "the United States shall guarantee to every state in this union a republican form of government": yet they do not guarantee to the different states their present forms of government, or the bill of rights thereto annexed, or any of them; and the expressions are too vague, too indefinite to create such a compact by implication. It is possible that a "republican form" of government may be built upon as absolute principles of despotism as any oriental monarchy ever yet possessed. I presume that the liberty of a nation depends, not on planning the frame of government, which consists merely in fixing and delineating the powers thereof; but on prescribing due limits to those powers, and establishing them upon just principles.

It has been held in a northern state by a zealous advocate for this constitution that there is no necessity for "a bill of rights" in the foederal government; although at the same time he acknowledges such necessity to have existed when the constitutions of the separate governments were established. He confesses that in these instances the people "invested their representatives with every power and authority, which they did not in explicit terms reserve": but "in delegating foederal powers," says he, "every thing, which is not given, is reserved." Here is a distinction, I humbly conceive, without a difference, at least in the present enquiry. How far such a discrimination might prevail with respect to the present system of union, it is immaterial to examine: and had the observation been restrained to that alone, perhaps it might be acknowledged to contain some degree of propriety. For under the confederation it is well known that the authority of Congress cannot extend so far as to interfere with, or exercise any kind of coercion on, the powers of legislation in the different states; but the internal police of each is left free, sovereign and independent: so that the liberties of the people being secured as well as the nature of their constitution will admit; and the declaration of rights, which they have laid down as the basis of government, having their full force and energy, any farther stipulation on that head might be unnecessary. But, surely, when this doctrine comes to be applied to the proposed foederal constitution, which is framed with such large and extensive powers, as to transfer the individual sovereignty from each state to the aggregate body,—a constitution, which delegates to Congress an authority to interfere with, and restrain the legislatures of every state—invests them with supreme powers of legislation throughout all the states—annihilates the separate independency of each; and, in short—swallows up and involves in the plenitude of its jurisdiction all other powers whatsoever:—I shall not be taxed with arrogance in declaring such an argument to be fallacious; and insisting on the necessity of a positive unequivocal declaration in favor of the rights of freemen in this case even more strongly than in the case of their separate governments. For it seems to me that when any civil establishment is formed, the more general its influence, the more extensive the powers, with which it is invested, the greater reason there is to take the necessary precaution for securing a due administration, and guarding against unwarrantable abuses.

(To be continued.)