Volume 1 — Appendix
[Section 18 - Miscellaneous Provisions (cont.)]
7. All debts contracted, and engagements entered into, before the adoption
of the constitution, are declared to be as valid against the United States under
the same, as under the confederation. This declaration was probably inserted for
the satisfaction, as well as the security of the public creditors, both foreign
and domestic. The articles of confederation contained a similar stipulation in
respect to the bills of credit emitted, monies borrowed, and debts contracted,
by or under the authority of congress, before the ratification of the
confederation. These declarations are merely acknowledgments of that which moral
obligation imposed upon the United States as a duty. It might seem as if this
act prohibited the making of any act of limitation in bar of such debts; but a
different interpretation has been given to it by congress. L. U. S. 2 Cong. 2
Sess. c. 6.
8. The ratification of the conventions of nine states was declared to be
sufficient for establishing the constitution between the states ratifying the
This article may now be regarded of little importance, the constitution
having been ratified by all the members of the former confederacy.... Had it
been otherwise, after nine states had ratified the constitution, it might have
been a question of some delicacy, in what relation those which failed to ratify,
stood to the others which had. The adoption of the constitution the establishing
a new form of government by nine states only, would have been an undoubted
breach of the articles of confederation, on their parts 331:
the remaining states might, at their election, have considered the confederacy
as dissolved, or not. If they considered it as dissolved, they would have stood
in the relation of other foreign states. If as still existing, they would have
had a right to insist upon the performance of all mutual stipulations on the
part of the other states, so long as they continued to perform their own, with
good faith. The Federalist advances a different opinion 332:
Happily for the United States it is now unnecessary to discuss the question any
9. The constitution, and the laws of the United States, made in pursuance of
it; and all treaties made, and to 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 333.
It may seem very extraordinary, that a people jealous of their liberty, and
not insensible of the allurements of power, should have entrusted the federal
government with such extensive authority as this article conveys: controlling
not only the acts of their ordinary legislatures, but their very constitutions,
The most satisfactory answer seems to be, that the powers entrusted to the
federal government being all positive, enumerated, defined, and limited to
particular objects; and those objects such as relate more immediately to the
intercourse with foreign nations, or the relation in respect to war or peace, in
which we may stand with them; there can, in these respects, be little room for
collision, or interference between the states, whose jurisdiction may be
regarded as confided to their own domestic concerns, and the United States, who
have no right to interfere, or exercise a power in any case not delegated to
them; or absolutely necessary to the execution of some delegated power. That, as
this control cannot possibly extend beyond those objects to which the federal
government is competent, under the constitution, and under the declaration
contained in the twelfth article, so neither ought the laws, or even the
constitution of any state to impede the operation of the federal government in
any case within the limits of it's constitutional powers. That a law limited to
such objects as may be authorised by the constitution, would, under the true
construction of this clause, be the supreme law of the land; but a law not
limited to those objects, or not made pursuant to the constitution, would not be
the supreme law of the land, but an act of usurpation, and consequently void. A
further answer seems also to be, that without this provision the constitution
could not have taken effect in those states where the articles of confederation
were sanctioned by the constitution; nor could it be supposed that the
constitution of the United States would possess any stability so long as it was
liable to be affected by any future change in the constitution of any of the
states. Other reasons are assigned by the Federalist, for which I shall refer
the student to that work 334.
10. The senators and representatives in congress, and the members of the
several state legislatures, and all executive and judicial officers of the
United states, and of the several states, shall be bound by oath or affirmation
to support the constitution 335.
That all those who are entrusted with the execution of the powers vested in
the federal government, should, under the most solemn sanction, be bound to the
due execution of the trusts reposed in them, could not be doubted. But the
propriety of requiring a similar engagement from the members of the state
legislatures, and the other public functionaries in the several states, was
doubted. But it should be remembered, that the members and officers of the state
governments will have an essential agency in giving effect to the federal
government. The election of the senate depends upon the immediate agency of the
state legislatures. In some of the states the electors for president and
vice-president are chosen in the same manner. In all, the legislature must
direct the mode in which they shall be appointed. The election of
representatives must probably depend upon them also for aid; at least until
congress, shall pass a general law upon the subject. The judges of the state
courts will not unfrequently have to decide according to the constitution and
laws of the United States. Decisions ought to be uniform, whether had in the
federal courts, or the state courts. This uniformity can only be obtained by
uniformity of obligation. The executive authority of the states will also have
an immediate agency in the appointment of senators, in case of vacancy during
the recess of the legislature: in issuing writs of election to fill up vacancies
in the house of representatives; in giving effect to the laws for calling the
militia into the service of the United States; in officering the militia, and a
variety of other occasions, all of which require that no adverse spirit, nor
doubts of authority, or obligation, should be permitted to counteract, or retard
the necessary operations of the federal government.
11. Lastly the fifth article provides the mode by which future amendments
to. the constitution may be proposed, discussed, and carried into effect,
without hazarding a dissolution of the confederacy, or suspending the operations
of the existing government. And this may be effected in two different modes: the
first on recommendation from congress, whenever two thirds of both houses shall
concur in the expediency of any amendment. The second, which secures to the
states an influence in case congress should neglect to recommend such
amendments, provides, that congress shall, on application from the legislatures
of two thirds of the states, call a convention for proposing amendments; which
in either case shall be valid to all intents and purposes as part of the
constitution, when ratified by the legislatures of three fourths of the several
states, or by conventions in three fourths thereof, as the one or the other
mode, of the ratification may be proposed by the congress. Both of these
provisions appear excellent. Of the utility and practicability of the former, we
have already had most satisfactory experience. The latter will probably never be
resorted to, unless the federal government should betray symptoms of corruption,
which may render it expedient for the states to exert themselves in order to the
application of some radical and effectual remedy. Nor can we too much applaud a
constitution, which thus provides a safe, and peaceable remedy for its own
defects, as they may from time to time be discovered. A change of government in
other countries is almost always attended with convulsions which threaten its
entire dissolution; and with scenes of horror, which deter mankind from any
attempt to correct abuses, or remove oppressions until they have become
altogether intolerable. In America we may reasonably hope, that neither of these
evils need be apprehended; nor is there any reason to fear that this provision
in the constitution will produce any degree of instability in the government;
the mode both of originating and of ratifying amendments, in either mode which
the constitution directs, must necessarily be attended with such obstacles, and
delays, as must prove a sufficient bar against light, or frequent innovations.
And as a further security against them, the same article further provides, that
no amendment which may be made, prior to the year one thousand eight hundred and
eight, shall, in any manner, affect those clauses of the ninth section of the
first article, which relate to the migration or importation of such persons as
the states may think proper to allow; and to the manner in which direct taxes
shall be laid: and that no state, without its consent shall be deprived of its
equal suffrage in the senate.
Among the amendments proposed by the several state conventions, some appear
to have been proposed only for greater precaution, and security against
misconstruction, or an undue extension of the powers vested in the federal
government; whilst others seem to have been calculated to remedy some radical
defects in the system 336. The most
important of those which have not yet received the approbation of both houses of
congress may not improperly be brought into view in this place, although we have
occasionally offered some remarks upon several of them in other parts of this
1. That some tribunal other than the senate be provided for trying
impeachments of senators.... This amendment seems to be the more necessary in
consequence of the decision in William Blount's case, that a senator is not a
civil officer, and therefore not impeachable. On this subject we have already
spoken somewhat at large.
2. That some reform be made, in the mode of choosing a president of the U.
States in those cases where the election may now devolve upon the house of
The necessity of such a reform, and the danger to which the federal union,
may be exposed if it be not effected, have been brought into full view by the
struggle between two parties almost equally balanced, at the election of a
president of the U. States in the year 1801. On this subject also, we have
offered some remarks elsewhere. I shall only add, that sound policy dictate that
no president should be capable of being re-elected, that had not a majority of
the whole number of votes of the state electors, in his favour; and that no
preponderance ought to be given to the vote of one member of the house of
representatives over that of another.
3. That all commercial treaties, and such whereby any cession of territory
or of jurisdiction, or the right of fishing upon the coasts of the United
States, or of the adjacent continent and islands, be made subject to the final
ratification of congress, before they shall be deemed conclusive, on the part of
the United States.
4. That the judiciary power of the United States be not construed to extend
to any civil suit, where the cause of action was not originally cognizable in
the federal courts; nor to any crime or misdemeanor whatsoever, which is not
defined, and the punishment thereof prescribed, either in the constitution of
the United States, or in some act of congress, made pursuant thereto; except the
same be committed out of the jurisdiction of any particular state, and within
the exclusive jurisdiction of the federal government.
The reasons for some further limitation of the judicial power of the United
States have been repeatedly touched upon, already; some further reasons will be
offered hereafter in the tract, upon the authority and obligation of the common
law of England, in the United States. At the conclusion of the latter the
student will find the sentiments of the general assembly of Virginia, upon that
important subject, as connected with the extent of the judicial power of the
United States; expressed in the most nervous language, that a just apprehension
of the fatal consequences to be expected from the doctrine, that the common law
of England has been adopted as the law of the federal government, could dictate.
5. That the articles which relate to direct taxes, and excises, might if
possible be so modified as to remove the objections which have been made to
them, by the several states.
6. That the exclusive power of legislation over the seat of government, &c.
be limited to such regulations as respect the police and good government
7. That congress shall not alter, modify, or interfere in, the time, place,
or manner, of holding elections for senators or representatives, except when the
legislature of any state may neglect, or refuse, or be disabled by invasion or
rebellion, to prescribe the same.
8. That no standing army, or regular forces, be kept up in time of peace,
except for the necessary protection and defence of forts, dock yards, and
arsenals, without consent of two thirds of both houses of congress.
9. That congress shall not have power to grant monopolies, or to erect any
companies with exclusive advantages of commerce.
10. That the president shall not command an army in person, without the
consent, or desire of congress.
11. That congress shall not declare war, without the consent of two thirds
of both houses.
12. That no law for the regulation of commerce, or navigation act, shall be
made, unless with the consent of two-thirds, of the members of both houses.
13. That the state legislatures may have power to recal, when they think it
expedient, their senators, and to send others in their stead.
14. That the senators and representatives in congress shall be ineligible to
any post or place under the United States during the term for which they were
elected.... To which I will take the liberty of suggesting.... "or for one
The practical exercise of the federal government has evinced the
indispensable necessity of an amendment upon this subject. It cannot be made too
strict, or too rigorous.... The man who seeks a seat in congress, with the hopes
by that means to retire upon a lucrative office, will be a venal sycophant
towards those who have the power of fulfilling his wishes. We have seen that the
most ready road to preferment in the federal government has been found to pass
through the two houses of congress; offices have (almost invariably) been
conferred on those, who have been the most distinguished supporters and
promoters of the extension of the power and influence of the executive: that
employments (lucrative in their nature) have been occasionally carved out for
them, even during the time for which they have been elected 337.
He that can doubt that political corruption unavoidably springs from such a
source, may, if he pleases, doubt that animal putrefaction is produced by the
combined action of air, heat, and moisture. But neither the real philosopher,
nor the enlightened politician, will feel a doubt upon either of these
I have now finished the survey of the constitution of the United States,
which I proposed making in this essay. Attached, from principle, and confirmed
in that attachment from past experience, to a federal union of the American
States, and to the principles of a democratic government, I have probably
regarded with a jealous eye those parts of the constitution which seem to savour
of monarchy, or aristocracy, or tend to a consolidated, instead of a federal,
union of the states. I have been equally zealous in my endeavours to point out
the excellencies of the constitution, as to expose it's defects: a sincere
attachment to the former will always lead an ingenuous mind to a candid
investigation, and correction of the latter. Happily for us, and for our
country, this correction has been found to be practicable without hazard,
without tumult, and without the smallest interruption to the ordinary course of
administering the government. To shut our eyes against this inestimable
advantage which we possess, beyond any other nation in the universe, would be an
unpardonable act of ingratitude to that divine being, under whose providence we
have accomplished the great work of our independence, and the establishment of
free government, in every state, and an union of the whole upon such a solid
foundation, as nothing but our own folly, or wickedness, can undermine. The man
who first espies any defect, or decay in the fabric, should, therefore, be the
first to point it out; that it may be amended, before the injury which it may
have occasioned is too great to be repaired. Those who, perceiving the defect,
deny that it exists; or wilfully obstruct the amendment, are the real enemies of
the constitution: it's real friends ought to pursue a different conduct.
Governments of force may be preserved for a time by an obstinate perseverance in
the same course, however pernicious: but a government of the people hath no
foundation but the confidence of the people: if that be withdrawn, the
government inevitably falls.
The very elaborate and masterly discussion of the constitution, in the
Federalist, to which I have repeatedly referred the student in the course of
this essay, would probably have saved me the labour of this attempt, if the
defects of the constitution had been treated with equal candour, as the authors
have manifested abilities in the developement of its eminent advantages. But,
notwithstanding, those letters are not altogether free from objectionable parts,
yet the far greater proportion of them contain so just a commentary upon the
principles of republican government, and of a federal union of the states, that
I cannot too warmly recommend the perusal of them to those who wish to make
themselves perfectly acquainted with a subject so truly interesting to every
American citizen, as the federal government of the United States.
331. The articles of this confederation
shall be inviolably observed by every state, and the union shall be perpetual;
nor shall any alteration at any time hereafter be made in any of them; unless
such alteration be agreed to in a congress of the United States, and be
afterwards confirmed by the legislatures of every state. Confederation, Art. 13.
332. See Federalist, vol. II. p.
333. C. U. S. Art. 6.
334. Federalist, Vol. I. No. 33.
Vol. II. No. 44.
335. C. U. S. Art. 6.
336. The following amendments were
proposed by one or more of the following states; viz. Virginia, New-York,
North-Carolina, Massachusetts, New Hampshire, Rhode-Island, or South-Carolina,
in convention; or may be found in an address to the people of Maryland, or in
the proceedings at Harrisburg in Pennsylvania. The whole being collected in
Carey's Museum, Vol 3, 4, 7, and 8, to which I must here refer the student.
337. The mission of a senator, during a
recess of congress, to visit the western posts, with a salary of eight dollars a
day, and his expences paid, may serve as an instance of this practice.
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