We must therefore search for new principles in modeling our political system. The American constitutions are founded on principles different from those of all nations, and we must find new bonds of union to perpetuate the confederation.
In the first place, there must be a supreme power at the head of the Union, vested with authority to make laws that respect the states in general and to compel obedience to those laws. Such a power must exist in every society or no man is safe.
In order to understand the nature of such a power, we must recur to the principles explained under the first head of these observations.
All power is vested in the people. That this is their natural and unalienable right is a position that will not be disputed. The only question is how this power shall be exerted to effect the ends of government. If the people retain the power of executing laws, we have seen how this division will destroy all its effect. Let us apply the definition of a perfect system of government to the American states. “The right of making laws for the United States should be vested in all their inhabitants by legal and equal representation, and the right of executing those laws committed to the smallest possible number of magistrates, chosen annually by Congress and responsible to them for their administration.” Such a system of continental government is perfect — it is practicable — and may be rendered permanent. I will even venture to assert that such a system may have, in Iegislation, all the security of republican circumspection; and in administration, all the energy and decision of a monarchy.
But must the powers of Congress be increased? This question implies gross ignorance of the nature of government. The question ought to be, must the American states be united? And if this question is decided in the affirmative, the next question is whether the states can be said to be united without a legislative head? Or in other words, whether thirteen states can be said to be united in government when each state reserves to itself the sole powers of legislation? The answer to all such questions is extremely easy. If the states propose to form and preserve a confederacy, there must be a supreme head in which the power of all the states is united.
There must be a supreme head, clothed with the same power to make and enforce laws respecting the general policy of all the states as the legislatures of the respective states have to make laws binding on those states respecting their own internal police. The truth of this is taught by the principles of government, and confirmed by the experience of America. Without such a head, the states cannot be united; and all attempts to conduct the measures of the continent will prove but governmental farces. So long as any individual state has power to defeat the measures of the other twelve, our pretended union is but a name, and our confederation a cobweb.
What, it will be asked, must the states relinquish their sovereignty and independence, and give Congress their rights of legislation? I beg to know what we mean by United States? If, after Congress have passed a resolution of a general tenor, the states are still at liberty to comply or refuse, I must insist that they are not united; they are as separate as they ever were, and Congress is merely an advisory body. If people imagine that Congress ought to be merely a council of advice, they will some time or other discover their most egregious mistake. If 3,000,000 people united under thirteen different heads are to be governed or brought to act in concert by a Resolve, that it be recommended, I confess myself a stranger to history and to human nature. The very idea of uniting discordant interests and restraining the selfish and the wicked principles of men by advisory resolutions is too absurd to have advocates even among illiterate peasants. The resolves of Congress are always treated with respect, and during the late war they were efficacious. But their efficacy proceeded from a principle of common safety which united the interests of all the states; but peace has removed that principle, and the states comply with or refuse the requisitions of Congress just as they please.
The idea of each state preserving its sovereignty and independence in their full latitude, and yet holding up the appearance of a confederacy and a concert of measures, is a solecism in politics that will sooner or later dissolve the pretended union, or work other mischiefs sufficient to bear conviction to every mind.
But what shall be done? What system of government shall be framed to guard our rights, to cement our union, and give energy to public measures? The answers to these questions are obvious and a plan of confederacy extremely easy. Let the government of the United States be formed upon the general plan of government in each of the several states. Let us examine the constitution of Connecticut.
The inhabitants of Connecticut form one body politic, under the name of the Governor and Company of the State of Connecticut. The whole body of freemen, in their collective capacity, is the supreme power of the state. By consent and firm compact or constitution this supreme power is delegated to representatives chosen in a legal manner and duly qualified. These representatives, properly assembled, make laws binding on the whole state; that is, the supreme power or state makes laws binding on itself. The supreme power and the subjects of that supreme power are the same body of men. As a collective body, the citizens are all an individual; as separate individuals, they are subjects as numerous as the citizens.
When laws are enacted they are of a general tenor; they respect the whole state and cannot be abrogated but by the whole state. But the whole state does not attempt to execute the laws. The state elects a governor or supreme magistrate and clothes him with the power of the whole state to enforce the laws. Under him a number of subordinate magistrates, such as judges of courts, justices of the peace, sheriffs, etc., are appointed to administer the laws in their respective departments. These are commissioned by the governor or supreme magistrate. Thus the whole power of the state is brought to a single point; it is united in one person.
If the representation of the freemen is equal and the elections frequent, if the magistrates are constitutionally chosen and responsible for their administration, such a government is of all others the most free and safe. The form is the most perfect on earth. While bills are depending before the supreme power, every citizen has a right to oppose them. A perfect freedom of debate is essential to a free government. But when a bill has been formally debated and is enacted into a law, it is the act of the whole state, and no individual has a right to resist it.
But, as it has been before observed, the acts of the supreme power must be general; it has therefore by a general law delegated full authority to certain inferior corporations to make bylaws for the convenience of small districts and not repugnant to the laws of the state. Thus every town in Connecticut is a supreme power for certain purposes and the cities are invested with extensive privileges. These corporations, for certain purposes, are independent of the legislature; they make laws, appoint officers, and exercise jurisdiction within their own limits. As bodies politic, they are sovereign and independent; as members of a large community, they are mere subjects. In the same manner, the head of a family is sovereign in his domestic economy, but as a part of the state, he is a subject.
Let a similar system of government be extended to the United States. As towns and cities are, as to their small matters, sovereign and independent, and as to their general concerns, mere subjects of the state; so let the several states, as to their own police, be sovereign and independent, but as to the common concerns of all, let them be mere subjects of the federal head. If the necessity of a union is admitted, such a system is the only means of effecting it. However independent each state may be and ought to be in things that relate to itself merely, yet as a part of a greater body it must be a subject of that body in matters that relate to the whole. A system of continental government, thus organized, may establish and perpetuate the confederation without infringing the rights of any particular state. But the power of all the states must be reduced to a narrow compass; it must center in a single body of men; and it must not be liable to be controlled or defeated by an individual state. The states assembled in Congress must have the same compulsory power in matters that concern the whole as a man has in his own family, as a city has within the limits of the corporation, and as the legislature of a state has in the limits of that state, respecting matters that fall within their several jurisdictions.
I beg to know how otherwise the states will be governed as a collective body? Every man knows by his own experience that even families are not to be kept in subordination by recommendations and advice. How much less then will such flimsy things command the obedience of a whole continent? They will not — they do not. A single state, by noncompliance with resolves of Congress, has repeatedly defeated the most salutary measures of the states proposed by Congress and acceded to by twelve out of thirteen.
I will suppose for the present that a measure recommended by Congress and adopted by a majority of the legislatures should be really repugnant to the interest of a single state, considered in its separate capacity. Would it be right for that state to oppose it? While the measure is in agitation it is the undoubted privilege of every state to oppose it by every argument. But when it is passed by the concurrence of a legal majority, it is the duty of every state to acquiesce. So far from resisting the measure, those very individuals who opposed it in debate ought to support it in execution. The reason is very plain: society and government can be supported on no other principles. The interest of individuals must always give place to the interest of the whole community. This principle of government is not perfect, but it is as perfect as any principle that can be carried into effect on this side [of] heaven.
It is for the interest of the American states either to be united or not. If their union is unnecessary, let Congress be annihilated, or let them be denominated a council of advice and considered as such. They must then be stripped of their power of making peace and war and of a variety of prerogatives given them by the Articles of Confederation. In this case we ourselves and the states of Europe should know what kind of a being Congress is; what dependence can be placed on their resolves; what is the nature of the treaties which they have made and the debts they have contracted.
But if the states are all serious in a design to establish a permanent union, let their sincerity be evinced by their public conduct.
Suppose the legislature of Rhode Island had no power to compel obedience to its laws, but any town in that state had power to defeat every public measure. Could any laws be rendered effectual? Could it with propriety be called a state? Could it be said that there was any supreme power, or any government? Certainly not. Suppose the smallest town in Connecticut had power to defeat the most salutary measures of the state; would not every other town rise in arms against any attempt to exert such a power? They certainly would. The truth of the case is, where the power of a people is not united in some individual or small body of individuals, but continues divided among the members of a society, that power is nothing at all. This fact is clearly proved under the first head of these observations, and more clearly felt by our fatal experience.
The American states, as to their general internal police, are not united; there is no supreme power at their head; they are in a perfect state of nature and independence as to each other; each is at liberty to fight its neighbor and there is no sovereign to call forth the power of the continent to quell the dispute or punish the aggressor. It is not in the power of the Congress — they have no command over the militia of the states — each state commands its own, and should any one be disposed for civil war, the sword must settle the contest and the weakest be sacrificed to the strongest.
It is now in the power of the states to form a continental government as efficacious as the interior government of any particular state.
The general concerns of the continent may be reduced to a few heads; but in all the affairs that respect the whole, Congress must have the same power to enact laws and compel obedience throughout the continent as the legislatures of the several states have in their respective jurisdictions. If Congress have any power, they must have the whole power of the continent. Such a power would not abridge the sovereignty of each state in any article relating to its own government. The internal police of each state would be still under the sole superintendence of its legislature. But in a matter that equally respects all the states, no individual state has more than a thirteenth part of the legislative authority, and consequently has no right to decide what measure shall or shall not take place on the continent. A majority of the states must decide; our confederation cannot be permanent unless founded on that principle; nay more, the states cannot be said to be united till such a principle is adopted in its utmost latitude. If a single town or precinct could counteract the will of a whole state, would there be any government in that state? It is an established principle in government that the wilI of the minority must submit to that of the majority; and a single state or a minority of states ought to be disabled to resist the will of the majority, as much as a town or county in any state is disabled to prevent the execution of a statute law of the legislature.
It is on this principle and this alone that a free state can be governed; it is on this principle alone that the American states can exist as a confederacy of republics. Either the several states must continue separate, totally independent of each other, and liable to all the evils of jealousy, dispute, and civil dissension — nay, liable to a civil war upon any clashing of interests — or they must constitute a general head, composed of representatives from all the states, and vested with the power of the whole continent to enforce their decisions. There is no other alternative. One of these events must inevitably take place, and the revolution of a few years will verify the prediction.
I know the objections that have been urged by the supporters of faction, and perhaps by some honest men, against such a power at the head of the states. But the objections all arise from false notions of government or from a willful design to embroil the states. Many people, I doubt not, really suppose that such power in Congress would be dangerous to the liberties of the states. Such ought to be enlightened.
There are two fundamental errors, very common in the reasonings which I have heard on the powers of Congress. The first arises from the idea that our American constitutions are founded on principles similar to those of the European governments which have been called free. Hence people are led into a second error, which is that Congress are a body independent of their constituents and under the influence of a distinct interest.
But we have seen before that our systems of civil government are different from all others, founded on different principles, more favorable to freedom, and more secure against corruption.
We have no perpetual distinctions of property which might raise one class of men above another and create powerful family connections and combinations against our liberties. We suffer no hereditary offices or titles which might breed insolence and pride and give their possessors an opportunity to oppress their fellowmen. We are not under the direction of a bigoted clergy who might rob us of the means of knowledge and then inculcate on credulous minds what sentiments they please. Not a single office or emolument in America is held by prescription or hereditary right; but all at the disposal of the people, and not a man on the continent but drones and villains who has not the privilege of frequently choosing his legislators and impeaching his magistrates for maladministration. Such principles form the basis of our American governments –– the first and only governments on earth that are founded on the true principles of equal liberty and properly guarded from corruption.
The legislatures of the American states are the only legislatures on earth which are wholly dependent on the people at large; and Congress is as dependent on the several states as the legislatures are on their constituents. The members of Congress are chosen by the legislatures, removable by them at pleasure, dependent on them for subsistence, and responsible to their constituents for their conduct. But this is not all. After having been delegated three years, the con-federation renders them ineligible for the term of three years more, when they must return, mingle with the people, and become private citizens. At the same time, their interest is the same with that of the people; for enjoying no exclusive privileges but what are temporary they cannot knowingly enact oppressive laws, because they involve themselves, their families, and estates in all the mischiefs that result from such laws.
People, therefore, who attempt to terrify us with apprehensions of losing our liberties because other states have lost theirs, betray an ignorance of history and of the principles of our confederation. I will not undertake to say that the government of the American states will not be corrupted or degenerate into tyranny. But I venture to assert that if it should, it will be the fault of the people. If the people continue to choose their representatives annually and the choice of delegates to Congress should remain upon its present footing, that body can never become tyrants. A measure partially oppressive may be resolved upon, but while the principles of representation, which are always in the power of the people, remain uncorrupted, such a measure can be of no long continuance. The best constitution of government may degenerate from its purity through a variety of causes; but the confederation of these states is better secured than any government on earth, and less liable to corruption from any quarter.
There is the same danger that the constitutions of the several states will become tyrannical as that the principles of federal government will be corrupted. The states in their collective capacity have no more reason to dread an uncontrollable power in Congress than they have, in their individual capacity, to dread the uncontrollable power of their own legislatures. Their security in both instances is an equal representation, the dependence, the responsibility, and the rotation of their representatives. These articles constitute the basis of our liberties, and will be an effectual security, so long as the people are wise enough to maintain the principles of the confederation.
I beg leave here to observe that a state was never yet destroyed by a corrupt or a wicked administration. Weakness and wickedness in the executive department may produce innumerable evils; but so long as the principles of a constitution remain uncorrupted, their vigor will always restore good order. Every stride of tyranny in the best governments in Europe has been effected by breaking over some constitutional barriers. But where a constitution is formed by the people and unchangeable but by their authority, the progress of corruption must be extremely slow, and perhaps tyranny can never be established in such government, except upon a general habit of indolence and vice.
What do the states obtain by reserving to themselves the right of deciding on the propriety of the resolutions of Congress? The great advantage of having every measure defeated, our frontiers exposed to savages, the debts of the states unpaid and accumulating, national faith violated, commerce restricted and insulted, one state filching some interest from another, and the whole body linked together by cobwebs and shadows, the jest and the ridicule of the world. This is not a chimerical description; it is a literal representation of facts as they now exist. One state found it could make some advantages by refusing the impost. Congress have reasoned with their legislature,-and by incontrovertible proofs have pointed out the impropriety of the refusal, but all to no purpose. Thus one-fiftieth part of the states counteracts a measure that the other states suppose not only beneficial but necessary; a measure on which the discharge of our public debt and our national faith most obviously depend. Can a government thus feeble and disjointed answer any valuable purpose? Can commutative justice between the states ever be obtained? Can public debts be discharged and credit supported? Can America ever be respected by her enemies when one of her own states can, year after year, abuse her weakness with impunity? No, the American states, so celebrated for their wisdom and valor in the late struggle for freedom and empire, will be the contempt of nations unless they can unite their force and carry into effect all the constitutional measures of Congress, whether those measures respect themselves or foreign nations.
The Articles of Confederation ordain that the public expenses shall be defrayed out of a common treasury. But where is this treasury? Congress prescribe a measure for supplying this treasury; but the states do not approve of the measure; each state will take its own way and its own time, and perhaps not supply its contingent of money at all. Is this an adherence to the Articles of our union? It certainly is not; and the states that refuse a compliance with the general measures of the continent would, under a good government, be considered as rebels. Such a conduct amounts to treason, for it strikes at the foundation of government.
Permit me to ask every candid American how society could exist if every man assumed the right of sacrificing his neighbor’s property to his own interest? Are there no rights to be relinquished, no sacrifices to be made for the sake of enjoying the benefits of civil government? If every town in Rhode Island, even the smallest, could annihilate every act of the legislature, could that state exist? Were such a selfish system to prevail generally, there would be an end of government and civil society would become a curse. A social state would be less eligible than a savage state, in proportion as knowledge would be increased and knaves multiplied. Local inconveniences and local interests never ought to disappoint a measure of general utility. If there is not power enough in government to remedy these evils by obliging private interests to give way to public, discord will pervade the state, and terminate in a revolution. Such a power must exist somewhere, and if people will quarrel with good government, there are innumerable opportunities for some daring ambitious genius to erect a monarchy on civil dissensions. In America there is no danger of an aristocracy; but the transition from popular anarchy to monarchy is very natural and often very easy. If these states have any change of government to fear, it is a monarchy. Nothing but the creation of a sovereign power over the whole, with authority to compel obedience to legal measures, can ever prevent a revolution in favor of one monarchy or more. This event may be distant, but is not the less certain. America has it now in her power to create a supreme power over the whole continent sufficient to answer all the ends of government without abridging the rights or destroying the sovereignty of a single state. But should the extreme jealousy of the states prevent the lodgment of such a power in a body of men chosen by themselves and removable at pleasure, such a power will inevitably create itself in the course of events.
The confederation has sketched out a most excellent form of continental government. The ninth article recites the powers of Congress, which are perhaps nearly sufficient to answer the ends of our Union, were there any method of enforcing their resolutions. It is there said what powers shall be exercised by Congress; but no penalty is annexed to disobedience. What purpose would the laws of a state answer if they might be evaded with impunity? And if there were no penalty annexed to a breach of them? A law without a penalty is mere advice; a magistrate without the powerof punishing is a cipher. Here is the great defect in the articles of our federal government. Unless Congress can be vested with the same authority to compel obedience to their resolutions that a legislature in any state has to enforce obedience to the laws of that state, the existence of such a body is entirely needless and will not be of long duration. I repeat what I have before said. The idea of governing thirteen states and uniting their interests by mere resolves and recommendations, without any penalty annexed to a noncompliance, is a ridiculous farce, a burlesque on government, and a reproach to America.
Let Congress be empowered to call forth the force of the continent, if necessary, to carry into effect those measures which they have a right to frame. Let the president be, ex officio, supreme magistrate, clothed with authority to execute the laws of Congress, in the same manner as the governors of the states are to execute the laws of the states. Let the superintendent of finance have the power of receiving the public monies and issuing warrants for collection in the manner the treasurer has in Connecticut. Let every executive officer have power to enforce the laws which fall within his province. At the same time, let them be accountable for their administration. Let penalties be annexed to every species of maladministration and exacted with such rigor as is due to justice and the public safety. In short, let the whole system of legislation be the peculiar right of the delegates in Congress who are always under the control of the people; and let the whole administration be vested in magistrates as few as possible in number, and subject to the control of Congress only. Let every precaution be used in framing laws, but let no part of the subjects be able to resist the execution. Let the people keep, and forever keep, the sole right of legislation in their own representatives, but divest themselves wholly of any right to the administration. Let every state reserve its sovereign right of directing its own internal affairs, but give to Congress the sole right of conducting the general affairs of the continent. Such a plan of government is practicable; and, I believe, the only plan that will preserve the faith, the dignity, and the union of these American states.
Public domain. Source: Sketches of American Policy, 1785.[Harry R. Warfel, ed., New York, 1937, pp. 3-48]