Essays on the Constitution of the United States Part 7

The only case of the kind in which the state would probably be sued, would be upon the state notes. The endless confusion that would arise from making the estates of individuals answerable, must be obvious to every one.

There is another sense in which the clause relating to causes between the state and individuals is to be understood, and it is more probable than the other, as it will be eternal in its duration, and increasing in its extent. This is the whole branch of the law relating to criminal prosecutions. In all such cases, the state is plaintiff, and the person accused is defendant. The process, therefore, will be, for the attorney-general of the state to commence his suit before a continental court. Considering the state as a party, the cause must be tried in another, and all the expense of transporting witnesses incurred. The individual is to take his trial among strangers, friendless and unsupported, without its being known whether he is habitually a good or a bad man; and consequently with one essential circ.u.mstance wanting by which to determine whether the action was performed maliciously or accidentally.

All these inconveniences are avoided by the present important restriction, that the cause shall be tried by a jury of the vicinity, and tried in the county where the offence was committed. But by the proposed _derangement_, I can call it by no softer name, a man must be ruined to prove his innocence. This is far from being a forced construction of the proposed form. The words appear to me not intelligible, upon the idea that it is to be a _system_ of government, unless the construction now given, both for civil and criminal processes, be admitted. I do not say that it is intended that all these changes should take place within one year, but they probably will in the course of half a dozen years, if this system is adopted. In the meantime we shall be subject to all the horrors of a divided sovereignty, not knowing whether to obey the Congress or the State. We shall find it impossible to please two masters. In such a state frequent broils will ensue. Advantage will be taken of a popular commotion, and even the venerable forms of the state be done away, while the new system will be enforced in its utmost rigour by an army.-I am the more apprehensive of a standing army, on account of a clause in the new const.i.tution which empowers Congress to keep one at all times; but this const.i.tution is evidently such that it cannot stand any considerable time without an army. Upon this principle one is very wisely provided. Our present government knows of no such thing.

AGRIPPA.

Agrippa, VI.

The Ma.s.sachusetts Gazette, (Number 391)

FRIDAY, DECEMBER 14, 1787.

For the Ma.s.sachusetts Gazette.

TO THE PEOPLE.

To prevent any mistakes, or misapprehensions of the argument, stated in my last paper, to prove that the proposed const.i.tution is an actual consolidation of the separate states into one extensive commonwealth, the reader is desired to observe, that in the course of the argument, the new plan is considered as an entire system. It is not dependent on any other book for an explanation, and contains no references to any other book. All the defences of it, therefore, so far as they are drawn from the state const.i.tutions, or from maxims of the common law, are foreign to the purpose. It is only by comparing the different parts of it together, that the meaning of the whole is to be understood. For instance-

We find in it, that there is to be a legislative a.s.sembly, with authority to const.i.tute courts for the trial of all kinds of civil causes, between citizens of different states. The right to appoint such courts necessarily involves in it the right of defining their powers, and determining the rules by which their judgment shall be regulated; and the grant of the former of those rights is nugatory without the latter. It is vain to tell us, that a maxim of common law requires contracts to be determined by the law existing where the contract was made: for it is also a maxim, that the legislature has a right to alter the common law. Such a power forms an essential part of legislation. Here, then, a declaration of rights is of inestimable value. It contains those principles which the government never can invade without an open violation of the compact between them and the citizens. Such a declaration ought to have come to the new const.i.tution in favour of the legislative rights of the several states, by which their sovereignty over their own citizens within the state should be secured.

Without such an express declaration the states are annihilated in reality upon receiving this const.i.tution-the forms will be preserved only during the pleasure of Congress.

The idea of consolidation is further kept up in the right given to regulate trade. Though this power under certain limitations would be a proper one for the department of Congress; it is in this system carried much too far, and much farther than is necessary. This is, without exception, the most commercial state upon the continent. Our extensive coasts, cold climate, small estates, and equality of rights, with a variety of subordinate and concurring circ.u.mstances, place us in this respect at the head of the Union. We must, therefore, be indulged if a point which so nearly relates to our welfare be rigidly examined. The new const.i.tution not only prohibits vessels, bound from one state to another, from paying any duties, but even from entering and clearing. The only use of such a regulation is, to keep each state in complete ignorance of its own resources. It certainly is no hards.h.i.+p to enter and clear at the custom house, and the expense is too small to be an object.

The unlimited right to regulate trade, includes the right of granting exclusive charters. This, in all old countries, is considered as one princ.i.p.al branch of prerogative. We find hardly a country in Europe which has not felt the ill effects of such a power. Holland has carried the exercise of it farther than any other state, and the reason why that country has felt less evil from it is, that the territory is very small, and they have drawn large revenues from their colonies in the East and West Indies. In this respect, the whole country is to be considered as a trading company, having exclusive privileges. The colonies are large in proportion to the parent state; so that, upon the whole, the latter may gain by such a system. We are also to take into consideration the industry which the genius of a free government inspires. But in the British islands all these circ.u.mstances together have not prevented them from being injured by the monopolies created there. Individuals have been enriched, but the country at large has been hurt. Some valuable branches of trade being granted to companies, who transact their business in London, that city is, perhaps, the place of the greatest trade in the world. But Ireland, under such influence, suffers exceedingly, and is impoverished; and Scotland is a mere bye-word. Bristol, the second city in England, ranks not much above this town in population. These things must be accounted for by the incorporation of trading companies; and if they are felt so severely in countries of small extent, they will operate with ten-fold severity upon us, who inhabit an immense tract; and living towards one extreme of an extensive empire, shall feel the evil, without retaining that influence in government, which may enable us to procure redress. There ought, then, to have been inserted a restraining clause which might prevent the Congress from making any such grant, because they consequentially defeat the trade of the out-ports, and are also injurious to the general commerce, by enhancing prices and destroying that rivals.h.i.+p which is the great stimulus to industry.

AGRIPPA.

Agrippa, VII.

The Ma.s.sachusetts Gazette, (Number 392)

TUESDAY, DECEMBER 18, 1787.

For the Ma.s.sachusetts Gazette.

TO THE PEOPLE.

There cannot be a doubt, that, while the trade of this continent remains free, the activity of our countrymen will secure their full share. All the estimates for the present year, let them be made by what party they may, suppose the balance of trade to be largely in our favour. The credit of our merchants is, therefore, fully established in foreign countries. This is a sufficient proof, that when business is unshackled, it will find out that channel which is most friendly to its course. We ought, therefore, to be exceedingly cautious about diverting or restraining it. Every day produces fresh proofs, that people, under the immediate pressure of difficulties, do not, at first glance, discover the proper relief. The last year, a desire to get rid of embarra.s.sments induced many honest people to agree to a tender act, and many others, of a different description, to obstruct the courts of justice. Both these methods only increased the evil they were intended to cure. Experience has since shown that, instead of trying to lessen an evil by altering the present course of things, that every endeavor should have been applied to facilitate the course of law, and thus to encourage a mutual confidence among the citizens, which increases the resources of them all, and renders easy the payment of debts. By this means one does not grow rich at the expense of another, but all are benefited. The case is the same with the States.

Pennsylvania, with one port and a large territory, is less favourably situated for trade than the Ma.s.sachusetts, which has an extensive coast in proportion to its limits of jurisdiction. Accordingly a much larger proportion of our people are engaged in maritime affairs. We ought therefore to be particularly attentive to securing so great an interest.

It is vain to tell us that we ought to overlook local interests. It is only by protecting local concerns that the interest of the whole is preserved. No man when he enters into society does it from a view to promote the good of others, but he does it for his own good. All men having the same view are bound equally to promote the welfare of the whole. To recur then to such a principle as that local interests must be disregarded, is requiring of one man to do more than another, and is subverting the foundation of a free government. The Philadelphians would be shocked with a proposition to place the seat of general government and the unlimited right to regulate trade in the Ma.s.sachusetts. There can be no greater reason for our surrendering the preference to them. Such sacrifices, however we may delude ourselves with the form of words, always originate in folly, and not in generosity.

Let me now request your attention a little while to the actual state of publick credit, that we may see whether it has not been as much misrepresented as the state of our trade.

At the beginning of the present year, the whole continental debt was about twelve millions of pounds in our money. About one-quarter part of this sum was due to our foreign creditors. Of these France was the princ.i.p.al, and called for the arrears of interest. A new loan of one hundred and twenty thousand pounds was negotiated in Holland, at five per cent., to pay the arrears due to France. At first sight this has the appearance of bad economy, and has been used for the villainous purpose of disaffecting the people. But in the course of this same year, Congress have negotiated the sale of as much of their western lands on the Ohio and Mississippi, as amount nearly to the whole sum of the foreign debt; and instead of a dead loss by borrowing money at five per cent. to the amount of an hundred and twenty thousand pounds in one sum, they make a saving of the interest at six per cent. on three millions of their domestick debt, which is an annual saving of an hundred and eighty thousand pounds. It is easy to see how such an immense fund as the western territory may be applied to the payment of the foreign debt. Purchasers of the land would as willingly procure any kind of the produce of the United States as they would buy loan office certificates to pay for the land. The produce thus procured would easily be negotiated for the benefit of our foreign creditors. I do not mean to insinuate that no other provision should be made for our creditors, but only to shew that our credit is not so bad in other countries as has been represented, and that our resources are fully equal to the pressure.

The perfection of government depends on the equality of its operation, as far as human affairs will admit, upon all parts of the empire, and upon all the citizens. Some inequalities indeed will necessarily take place.

One man will be obliged to travel a few miles further than another man to procure justice. But when he has travelled, the poor man ought to have the same measure of justice as the rich one. Small enqualities [sic] may be easily compensated. There ought, however, to be no inequality in the law itself, and the government ought to have the same authority in one place as in another. Evident as this truth is, the most plausible argument in favour of the new plan is drawn from the inequality of its operation in different states. In Connecticut, they have been told that the bulk of the revenue will be raised by impost and excise, and, therefore, they need not be afraid to trust Congress with the power of levying a dry tax at pleasure. New York and Ma.s.sachusetts are both more commercial states than Connecticut. The latter, therefore, hopes that the other two will pay the bulk of the continental expense. The argument is, in itself, delusive. If the trade is not over-taxed, the consumer pays it. If the trade is over-taxed, it languishes, and by the ruin of trade the farmer loses his market. The farmer has, in truth, no other advantage from imposts than that they save him the trouble of collecting money for the government. He neither gets nor loses money by changing the mode of taxation. The government indeed finds it the easiest way to raise the revenue; and the reason is that the tax is by this means collected where the money circulates most freely. But if the argument was not delusive, it ought to conclude against the plan, because it would prove the unequal operation of it; and if any saving is to be made by the mode of taxing, the saving should be applied towards our own debt, and not to the payment of that part of the continental burden which Connecticut ought to discharge. It would be impossible to refute in writing all the delusions made use of to force this system through. Those respecting the publick debt, and the benefit of imposts, are the most important, and these I have taken pains to explain. In one instance, indeed, the impost does raise money at the direct expense of the seaports. This is when goods are imported subject to a duty, and re-exported without a drawback. Whatever benefit is derived from this source, surely should not be transferred to another state, at least till our own debts are cleared.

Another instance of unequal operation is, that it establishes different degrees of authority in different states, and thus creates different interests. The lands in New Hamps.h.i.+re having been formerly granted by this state, and afterwards by that state, to private persons, the whole authority of trying t.i.tles becomes vested in a continental court, and that state loses a branch of authority, which the others retain, over their own citizens.

I have now gone through two parts of my argument, and have proved the efficiency of the state governments for internal regulation, and the disadvantages of the new system, at least some of the princ.i.p.al. The argument has been much longer than I at first apprehended, or possibly I should have been deterred from it. The importance of the question has, however, prevented me from relinquis.h.i.+ng it.

AGRIPPA.

Agrippa, VIII.

The Ma.s.sachusetts Gazette, (Number 394)

TUESDAY, DECEMBER 25, 1787.

For the Ma.s.sachusetts Gazette.

TO THE PEOPLE.

It has been proved, by indisputable evidence, that power is not the grand principle of union among the parts of a very extensive empire; and that when this principle is pushed beyond the degree necessary for rendering justice between man and man, it debases the character of individuals, and renders them less secure in their persons and property. Civil liberty consists in the consciousness of that security, and is best guarded by political liberty, which is the share that every citizen has in the government. Accordingly all our accounts agree, that in those empires which are commonly called despotick, and which comprehend by far the greatest part of the world, the government is most fluctuating, and property least secure. In those countries insults are borne by the sovereign, which, if offered to one of our governours, would fill us with horrour, and we should think the government dissolving.

The common conclusion from this reasoning is an exceedingly unfair one, that we must then separate, and form distinct confederacies. This would be true if there was no principle to subst.i.tute in the room of power.

Fortunately there is one. This is commerce. All the states have local advantages, and in a considerable degree separate interests. They are, therefore, in a situation to supply each other's wants. Carolina, for instance, is inhabited by planters, while the Ma.s.sachusetts is more engaged in commerce and manufactures. Congress has the power of deciding their differences. The most friendly intercourse may therefore be established between them. A diversity of produce, wants and interests, produces commerce; and commerce, where there is a common, equal and moderate authority to preside, produces friends.h.i.+p.

The same principles apply to the connection with the new settlers in the west. Many supplies they want for which they must look to the older settlements, and the greatness of their crops enables them to make payments. Here, then, we have a bond of union which applies to all parts of the empire, and would continue to operate if the empire comprehended all America.

We are now, in the strictest sense of the terms, a federal republick. Each part has within its own limits the sovereignty over its citizens, while some of the general concerns are committed to Congress. The complaints of the deficiency of the Congressional powers are confined to two articles.

They are not able to raise a revenue by taxation, and they have not a complete regulation of the intercourse between us and foreigners. For each of these complaints there is some foundation, but not enough to justify the clamour which has been raised. Congress, it is true, owes a debt which ought to be paid. A considerable part of it has been paid. Our share of what remains would annually amount to about sixty or seventy thousand pounds. If, therefore, Congress were put in possession of such branches of the impost as would raise this sum in our state, we should fairly be considered as having done our part towards their debt; and our remaining resources, whether arising from impost, excise, or dry tax, might be applied to the reduction of our own debt. The princ.i.p.al of this last amounts to about thirteen hundred thousand pounds, and the interest to between seventy or eighty thousand. This is, surely, too much property to be sacrificed; and it is as reasonable that it should be paid as the continental debt. But if the new system should be adopted, the whole impost, with an unlimited claim to excise and dry tax, will be given to Congress. There will remain no adequate found for the state debt, and the state will still be subject to be sued on their notes. This is, then, an article which ought to be limited. We can, without difficulty, pay as much annually as shall clear the interest of our state debt, and our share of the interest on the continental one. But if we surrender the impost, we shall still, by this new const.i.tution, be held to pay our full proportion of the remaining debt, as if nothing had been done. The impost will not be considered as being paid by this state, but by the continent. The federalists, indeed, tell us that the state debts will all be incorporated with the continental debt, and all paid out of one fund. In this as in all other instances, they endeavour to support their scheme of consolidation by delusion. Not one word is said in the book in favour of such a scheme, and there is no reason to think it true. a.s.surances of that sort are easily given, and as easily forgotten. There is an interest in forgetting what is false. No man can expect town debts to be united with that of the state; and there will be as little reason to expect that the state and continental debts will be united together.

AGRIPPA.

Agrippa, IX.

The Ma.s.sachusetts Gazette, (Number 395)

FRIDAY, DECEMBER 28, 1787.

For the Ma.s.sachusetts Gazette.