Part 23

And by the 6th art., “The members of the several state legislatures, and all the executive and judicial officers; both of the United States, and of the several states, shall be bound by oath or affirmation to support the constitution.” Can this oath be taken by those who have already taken one under the constitution of this state?

XVIII, SEC. 17; XIX, SEC. 17; XX SEC. 17; XXI, SEC. 17; XXIII, SEC. 17; XXII TO XXX INCLUSIVE.

These paragraphs regulate the election, appointment, construction and duration of all the state, county and district officers, including the delegates to Congress, and how they severally are to be created and commissioned.

The 22d directs that the treasurer shall be appointed by act of the legislature to originate with the assembly. The 23d establishes a council to appoint the officers.

The 24th directs that the military officers shall be, during the pleasure of the council, the chancellor, judges of the supreme court, the first judge in every county until the age of 60.

Twenty-five and 28, which offices are incompatible, and the tenure and duration of such officers.

Twenty-six, that sheriffs and coroners be annually appointed, and shall not continue more than four years.

Twenty-seven, that the officers of the court be appointed by the respective courts, except the attorneys, by the first judge of every court.

Twenty-nine, provides that town clerks, supervisors, assessors, constables and collectors, and all other officers heretofore elegible by the people, shall always continue to be so elegible.

Thirty, directs the mode how the delegates to represent this state in the general Congress of the United States shall be elected.

I apprehend that the paragraphs aforesaid will be compleatly rendered unoperative by the following articles in the new constitution:

Second article, second section, second clause, the president “shall have power, and by and with the advice and consent of the Senate, shall appoint embassadors, other public ministers and consuls, judges of the supreme court, and all officers of the United States where appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the power of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments.” By the 1st art., 8 section, 9, 18 clauses, Congress have power “to constitute tribunals inferior to the supreme court, to make all laws which shall be necessary 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.”

By the third article, 2d section, there is an extensive federal power as above-mentioned.

By the 2d article, 2d section, the president “shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.”

From these powers lodged in Congress and the powers vested in the states, it is clear that there must be a government within a government, two legislative, executive and judicial powers. The power of raising an army in time of peace, and to command the militia, will give the president ample means to enforce the Supreme laws of the land.

XXIII, SEC. 21; XXIV, SEC. 21; XXV, SEC. 21; XXVI, SEC. 21; XXVII, SEC. 21; XXVIII, SEC. 21; XXIX, SEC. 21; XXX, SEC. 21; XXXI, SEC. 2; XXXII, XXXIII, XXXIV.

The 32d paragraph orders, “That a court shall be instituted for the trial of impeachments and the correction of errors under the regulations which shall be established by the legislature, and to consist of the president of the senate for the time being, and the senators, chancellors and judges of the supreme court.”

The 33d vests the power of impeaching all officers of the state for mal and corrupt practice in the representatives of the people in assembly.

The 34th allows the parties impeached or indicted for crimes and misdemeanors to have counsel.

This system is undermined and rendered nugatory by 1st art., 6th and 7th clauses, where the senate in the new constitution, have the trial and judgment on all impeachments.

By 3d art., 2d sec, 3d clause, the trial of all crimes is regulated.

By the 3d art., 3d sec., it is defined what shall be treason, the proof required, the punishment, and how the judgment in attainder shall operate.

XXXIII, SEC. 32; XXXIV, SEC. 32; XXXV, SEC. 13; XXXVII, SEC. 1; XXXVIII, XXXIX.

The 38th paragraph provides “that the free exercise and enjoyment of religious procession and worship, without discrimination or preference, shall forever hereafter be allowed within this State to all mankind, provided that the liberty of conscience hereby granted shall not excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the State.”

The 39th provides that “no minister of the gospel, or priest of any denomination whatsoever, shall at any time hereafter, under any pretence or description whatever, be eligible to or capable of holding any civil or military office or place within this state.”

The first of those articles protects us from persecution in religious matters. The other excludes the clergy from enjoying any office, civil or military. Two provisions passed by in silence by the framers of the new constitution; and although possibly the leaders in both have been equally averse to a democratic system, and have had the same object, the ruin of state government, in view.

XLII.

This paragraph provides “that it shall be in the discretion of the legislature to naturalize all such persons and in such manner as they shall think proper.”

The 1st art., 8 sec., 4th clause, give to the new government power to establish a uniform rule of naturalization.

And by the 4th art., 2d sec., “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states,” whereby the clause is rendered entirely nugatory.

From this contrast it appears that the general government, when compleatly organized, will absorb all those powers of the state which the framers of its constitution had declared should be only exercised by the representatives of the people of the state; that the burthens and expence of supporting a state establishment will be perpetuated; but its operations to ensure or contribute to any essential measures promotive of the happiness of the people may be totally prostrated, the general government arrogating to itself the right of interfering in the most minute objects of internal police, and the most trifling domestic concerns of every state, by possessing a power of passing laws “to provide for the general welfare of the United States,” which may affect life, liberty and property in every modification they may think expedient, unchecked by cautionary reservations, and unrestrained by a declaration of any of those rights which the wisdom and prudence of America in the year 1776 held ought to be at all events protected from violation.

In a word, the new constitution will prove finally to dissolve all the power of the several state legislatures, and destroy the rights and liberties of the people; for the power of the first will be all in all, and of the latter a mere shadow and form without substance, and if adopted we may (in imitation of the Carthagenians) say, Delenda vit Americæ.

SYDNEY.

CURSORY REMARKS BY HUGH HENRY BRACKENRIDGE.

Printed In The American Museum, April, 1788.

Note.

This article first appeared in _The Pittsburgh Gazette_, but as I have not been able to find a file of that paper, I have been compelled to reprint it from _The American Museum_. It was anonymous, but its authorship is settled by its republication in Brackenridge’s “_Gazette Publications_,” printed in book form in 1806.

Cursory Remarks.

The American Museum, (Number 4)

APRIL, 1788.

It is not my intention to enter largely into a consideration of this plan of government, but to suggest some ideas in addition to, and of the same nature with, those already made, showing the imperfections and the danger of it.

The first thing that strikes a diligent observer, is the want of precaution with regard to the _sex_ of the president. Is it provided that he shall be of the male gender? The Salii, a tribe of the Burgundians, in the 11th century, excluded females from the sovereignty. Without a similar exclusion, what shall we think, if, in progress of time, we should come to have an _old woman_ at the head of our affairs? But what security have we that he shall be a _white man_? What would be the national disgrace if he should be elected from one of the southern states, and a _vile negro_ should come to rule over us? Treaties would then be formed with the tribes of Congo and Loango, instead of the civilized nations of Europe. But is there any security that he shall be a _freeman_? Who knows but the electors at a future period, in days of corruption, may pick up a man-servant, a convict perhaps, and give him the dominion? Is any care taken that he shall be of _perfect parts_? Shall we, in affairs of a civil nature, leave a door open to lame men, bastards, eunuchs, and the devil knows what?

A senate is the next great constituent part of the government; and yet there is not a word said with regard to the ancestry of any of them; whether they should be altogether Irish, or only Scots Irish. If any of them have been in the war of the White Boys, the Heart of Oak, or the like, they may overturn all authority, and make Shilelah the supreme law of the land.

The house of representatives is to be so large, that it can never be built. They may begin it, but it can never be finished. Ten miles square! Babylon itself, unless the suburbs are taken into view, was not of greater extent.

But what avails it to dwell on these things? The want of a _bill of rights_ is the great evil. There was no occasion for a bill of _wrongs_; for there will be wrongs enough. But oh! a _bill of rights_! What is the nature of a bill of rights? “It is a schedule or inventory of those powers which Congress do not possess.” But if it is clearly ascertained what powers they have, what need of a catalogue of those powers they have not? Ah! there is the mistake. A minister preaching, undertook, first, to show what was in his text; second, what was not in it. When it is specified what powers are given, why not also what powers are not given? A bill of rights is wanting, and all those things which are usually secured under it—

1. The _rights of conscience_ are swept away. The Confession of Faith, the Prayer-Book, the Manual and Pilgrim’s Progress are to go. The psalms of Watts, I am told, are the only thing of the kind that is to have any quarter at all.

2. The _liberty of the press_—that is gone at the first stroke. Not so much as an advertisement for a stray horse, or a runaway negro, can be put in any of the gazettes.

3. The _trial by jury_—that is knocked in the head, and all that worthy class of men, the lawyers, who live by haranguing and bending the juries, are demolished.

I would submit it to any candid man, if in this constitution there is the least provision for the privilege of shaving the beard? or is there any mode laid down to take the measure of a pair of breeches? Whence is it then, that men of learning seem so much to approve, while the ignorant are against it? The cause is perfectly apparent, viz., that reason is an erring guide, while instinct, which is the governing principle of the untaught, is certain. Put a pig in a poke, carry it half a day’s journey through woods and by-ways, let it out, and it will run home without deviation. Could Dr. Franklin do this? What reason have we then to suppose that his judgment, or that of Washington, could be equal to that of Mr. Smilie(55) in state affairs?

Were it not on this principle that we are able to account for it, it might be thought strange that old Livingston,(56) of the Jersies, could be so hoodwinked as to give his sanction to such a diabolical scheme of tyranny amongst men—a constitution which may well be called hell-born. For if all the devils in Pandemonium had been employed about it, they could not have made a worse.

Neil MacLaughlin, a neighbor of mine, who has been talking with Mr. Findley, says that under this constitution all weavers are to be put to death. What have these innocent manufacturers done that they should be proscribed?

Let other states think what they will of it, there is one reason why every Pennsylvanian should execrate this imposition upon mankind. It will make his state most probably the seat of government, and bring all the officers, and cause a great part of the revenue to be expended here. This must make the people rich, enable them to pay their debts, and corrupt their morals. Any citizen, therefore, on the Delaware and Susquehannah waters, ought to be hanged and quartered, that would give it countenance.

I shall content myself at present with these strictures, but shall continue them from time to time as occasion may require.

LETTER OF CAUTION, WRITTEN BY SAMUEL CHASE.

Printed In THE MARYLAND JOURNAL, October, 1788.

Note.

The authorship of this essay is fixed upon Chase by a letter of Daniel Carroll, who in writing to Madison, alludes to both this, and his reply, printed _post_. Chase was the leader of the Anti-Federalists in Maryland, but was at first compelled by popular feeling to temporize, as is shown by the following extracts, taken from the Maryland Journal for September 28, 1787:

The following is the conclusion of the speech of Samuel Chase, Esq., delivered this day, at the Court House, before a numerous and respectable body of citizens.

(Published by request of many electors of Baltimore Town.)

The Constitution proposed by the late Convention, for the United States, will alter, and in some instances, abolish our Bill of Rights and Form of Government. The Legislature of this State have no right to alter our Form of Government, but in the mode prescribed by the Constitution. The only question for the General Assembly to determine is this, whether they will recommend to the people to elect delegates to meet in convention, to consider and decide on the plan proposed. I have always maintained the Union, and the increase of powers in Congress. I think the Federal Government must be greatly altered. I have not formed my opinion, whether the plan proposed ought to be accepted as it stands, without any amendment or alteration. The subject is very momentous, and involves the greatest consequences. If elected, I will vote for, and use my endeavours to procure a recommendation by the Legislature to call a convention, as soon as it can conveniently be done, unless otherways directed by this town.

_September 26, 1787._

Having been informed that my engagements of yesterday, to the meeting at the Court House, “to vote for, and use my endeavours to procure a recommendation by the Legislature, to call a convention as soon as it can conveniently be done,” is not understood; from a desire, if possible, to remove all misunderstanding, I take the liberty to declare, that by the promise I meant to engage, and therefore do promise, if elected, that I will use my endeavours to procure, at the next session of Assembly, and as soon in the session as the necessary business of the State will permit, a recommendation by the General Assembly to call a convention, to consider and decide on the Constitution proposed by the late Convention for the United States, and to appoint the election of delegates to the Convention as soon as the convenience of the people will permit. I further beg leave to add as my opinion, that the election of delegates to the Convention ought to be as early in the spring as may be.

SAMUEL CHASE.

_Baltimore, September 27, 1787._

There are attacks on Chase, by “Steady” in the _Maryland Journal_ of September 28, 1787, and by “Spectator,” in the _Maryland Journal_ of October 9, 1787.

Caution.

The Maryland Journal, (Number 976)

FRIDAY, OCTOBER 12, 1787.

TO THE INHABITANTS OF BALTIMORE TOWN,

An attempt to _surprise_ you into any _public_ measure, ought to meet your indignation and contempt. When violence or cunning is substituted for argument and reason, suspicion should take the alarm, and prudence should dictate the propriety of deliberation. Questions of consequence in private life ought not to be _hastily_ decided, and with greater reason, determinations that involve the future felicity of a whole people, ought not to be taken before the most mature and deliberate consideration, and a free and full examination of the subject and all its consequences. These reflections occurred on being informed that some gentlemen of this Town employ themselves in carrying about and soliciting subscribers to a petition, addressed to the General Assembly, requesting them to call a Convention to ratify the new system of government, proposed for the United States by the late Convention at Philadelphia. If this petition contained no more, it would not have been worthy of notice; but it publishes to the world your entire approbation of the New Federal Government, and your desire that it should be adopted and confirmed by this State, as it stands, _without any amendment or alteration_.

The ostensible cause for offering you the petition to sign is, that you may express your sentiments to the legislature, that they ought to call a Convention to ratify the new form of government for the United States; but the real design of the promoters of the petition is to draw you into a declaration in favour of the _whole_ system, and to bind you hereafter to support it, which you must do, or allege deception and surprise, if, on further reflection, you should discover that you rashly gave an opinion against your real interests. If the _real_ intention of the promoters and carriers of this petition was _only_ to obtain your opinion in favour of calling a Convention, it might have been expressed in a _few_ lines; and no one would oppose such a petition, although improper and unnecessary, because your Delegates will certainly move for, and exert themselves to procure, the calling a Convention; and no member of the General Assembly will deny that, in so doing, your Delegates speak your sentiments.

In my opinion, it is not necessary or proper for you, _at this time_, to express your approbation, or disapprobation, of the new constitution for the United States, for the following reasons:

First—because the decision, _for_ or _against_ the plan, is of the greatest consequence, as it involves no less than the happiness or misery of you and all your posterity forever; and therefore, I think, requires your dispassionate and most deliberate consideration. Secondly—because you want information, and have not had time yourselves to examine the proposed system, and to consider the consequences that may flow from rejecting or adopting it. Thirdly—because time is not given for your countrymen in this, and the other States, to consider the subject, and to lay their sentiments and reasons for or against the measure before you. Fourthly—because you ought to hear _both_ sides, as the man who determines on hearing one part only, will almost always be mistaken in his judgment. He may be in the right, but it will be by _chance_ and not by _reason_. Fifthly—because you are not pressed in point of time to determine on the subject; you have at least three months for deliberation; to decide, therefore, in a few days will be rashness and folly. Sixthly—when men urge you to determine in _haste_, on so momentous a subject, it is not _unreasonable_ to require their motives; and it is not _uncharitable_ to suspect that they are improper; and no possible mischief or inconvenience can happen from delay.

_October 11, 1787._

CAUTION.

LETTER OF A FRIEND TO THE CONSTITUTION, WRITTEN BY DANIEL CARROLL.

Printed In The Maryland Journal, October, 1787.

Note.

Daniel Carroll wrote Madison that he had replied to Chase’s “Caution,” and as this is the only direct reply to that article I have been able to find, I have ventured to ascribe this to him. The letter is in the Madison Papers in the Department of State, which at present are restricted from use, so I am unable to print it here.

A Friend To The Constitution.

The Maryland Journal, (Number 977)

TUESDAY, OCTOBER 16, 1787.

TO THE INHABITANTS OF BALTIMORE TOWN.

You have been addressed in the last Friday’s paper, by a writer under the signature of _Caution_, who would persuade you that you ought to withhold your approbation, at this time, from the Federal Constitution recommended by the Convention.

This writer may have the best intentions in the world towards the _public welfare_, and the _prosperity of Baltimore_; but every one must perceive that he is an enemy to the proposed Constitution, and wishes to prevent you from expressing yourselves in its favour, not only _at this time_, but at any _future time_.

Mr. C—— is said to be the author of this admonition; but that this is a malicious insinuation, aimed at his sincerity, will appear by considering his _recent promise_ on this subject, signed and published by himself, in reference with the resolution of the Convention, upon which that promise is founded. I shall state both the resolution and promise, that you may judge for yourselves.

The resolve of the Convention declares, that the Constitution should be submitted to a Convention of Delegates, chosen in each State by the people, under the recommendation of its legislature, _for their assent and ratification_.

Mr. C—— being called upon, before his election, to declare himself on this point, promises to the people, “that he will use his endeavours, if elected, to call a Convention.”

I would just observe on this resolve and promise: First—that the resolve makes it an _absolute condition_ that the legislature recommend a Convention _to assent to, and ratify, the Constitution_. Secondly—that the _promise_ made by Mr. C—— is obligatory upon him, to use his endeavors to procure a Convention _for this purpose_.

Another remark, which occurs on this occasion, is, that Mr. C—— could not mean that a Convention ought to be called _for any other purpose_ than to assent to, and ratify, the Constitution; for it is absurd to suppose he meant the Convention should be authorized by the legislature to propose amendments or alterations, that being _contrary_ to the declared intention of the resolution, and the sense which his friends entertained of his engagement at the time he entered into it. Mr. C——, therefore (without presuming him capable of doing the greatest violence to his promise), cannot be considered as the _author of Caution_, who argues strenuously, though indirectly, _against adopting the Constitution_.