The Anti-Federalist Papers

The Constitutional Convention Debates

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Much stress had been laid by some gentlemen on the want of power in the Convention to propose any other than a federal plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a federal plan would support this objection. One characteristic, was that in a federal Government, the power was exercised not on the people individually, but on the people collectively, on the States. Yet in some instances as in piracies, captures etc. the existing Confederacy, and in many instances, the amendments to it proposed by Mr. Paterson, must operate immediately on individuals. The other characteristic was that a federal Government derived its appointments not immediately from the people, but from the States which they respectively composed. Here too were facts on the other side. In two of the States, Connecticut and Rhode Island, the delegates to Congress were chosen, not by the Legislatures, but by the people at large, and the plan of Mr. Paterson intended no change in this particular. It had been alleged, by Mr. Paterson, that the Confederation having been formed by unanimous consent, could be dissolved by unanimous Consent only. Does this doctrine result from the nature of compacts. Does it arise from any particular stipulation in the articles of Confederation. If we consider the federal union as analagous to the fundamental compact by which individuals compose one Society, and which must in its theoretic origin at least, have been the unanimous act of the component members, it can not be said that no dissolution of the compact can be effected without unanimous consent. A breach of the fundamental principles of the compact by a part of the Society would certainly absolve the other part from their obligations to it. If the breach of any article by any of the parties, does not set the others at liberty, it is because, the contrary is implied in the compact itself, and particularly by that law of it, which gives an indefinite authority to the majority to bind the whole in all cases. This latter circumstance shows that we are not to consider the federal Union as analagous to the social compact of individuals, for if it were so, a Majority would have a right to bind the rest, and even to form a new Constitution for the whole, which the Gentleman from New Jersey would be among the last to admit. If we consider the federal Union as analogous not to the social compacts among individual men, but to the conventions among individual States. What is the doctrine resulting from these conventions. Clearly, according to the Expositors of the law of Nations, that a breach of any one article, by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. In some treaties indeed it is expressly stipulated that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which in general is understood to dissolve all subsisting Treaties. But are there any exceptions of this sort to the Articles of confederation. So far from it that there is not even an express stipulation that force shall be used to compell an offending member of the Union to discharge its duty, He observed that the violations of the federal articles had been numerous and notorious. Among the most notorious was an act of New Jersey herself, by which she expressly refused to comply with a constitutional requisition of Congress and yielded no farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance. He did not wish to draw any rigid inferences from these observations. He thought it proper however that the true nature of the existing confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands. Proceeding to the consideration of Mr. Paterson`s plan, he stated the object of a proper plan to be twofold,

1. To preserve the Union.
   

2. To provide a Government that will remedy the evils felt by the States both in their united and individual capacities.
   

1. Will it prevent those violations of the law of nations and of Treaties which if not prevented must involve us in the calamities of foreign wars. The tendency of the States to these violations has been manifested in sundry instances. The files of Congress contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shown to us. This can not be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrolled as ever.
   

2. Will it prevent encroachments on the federal authority. A tendency to such encroachments has been sufficiently exemplified, among ourselves, as well in every other confederated republic ancient and Modern. By the federal articles, transactions with the Indians appertain to Congress. Yet in several instances, the States have entered into treaties and wars with them. In like manner no two or more States can form among themselves any treaties etc. without the consent of Congress. Yet Virginia and Maryland in one instance, Pennsylvania and New Jersey in another, have entered into compacts, without previous application or subsequent apology. No State again can of right raise troops in time of peace without the like consent. Of all cases of the league, this seems to require the most scrupulous observance. Has not Massachusetts, notwithstanding, the most powerful member of the Union, already raised a body of troops. Is she not now augmenting them, without having even deigned to apprise Congress of Her intention. In fine Have we not seen the public land dealt out to Connecticut to bribe her acquiscence in the decree constitutionally awarded against her claim on the territory of Pennsylvania for no other possible motive can account for the policy of Congress in that measure.If we recur to the examples of other confederacies, we shall find in all of them the same tendency of the parts to encroach on the authority of the whole. He then reviewed the Amphyctionic and Achaæan confederacies among the ancients, and the Helvetic, Germanic and Belgic among the moderns, tracing their analogy to the United States in the constitution and extent of their federal authorities in the tendency of the particular members to usurp on these authorities, and to bring confusion and ruin on the whole.He observed that the plan of Mr. Paterson besides omitting a control over the States as a general defence of the federal prerogatives was particularly defective in two of its pravisions.
   

1. Its ratification was not to be by the people at large, but by the legislatures. It could not therefore render the Acts of Congress in pursuance of ,their powers, even legally paramount to the Acts of the States.

2. It gave to the federal Tribunal an appellate jurisdiction only, even in the criminal cases enumerated. The necessity of any such provision supposed a danger of undue acquittals in the State tribunals. Of what avail could an appellate tribunal be, after an acquittal. Besides in most if not all of the States, the Executives have by their respective Constitutions the right of pardoning. How could this be taken from them by a legislative ratification only.
   

3. Will it prevent trespasses of the States on each other. Of these enough has been already seen. He instanced Acts of Virginia and Maryland which give a preference to their own Citi. zens in cases where the Citizens of other States are entitled to equality of privileges by the Articles of Confederation. He considered the emissions of paper money and other kindred measures as also aggressions. The States relatively to one an other being each of them either Debtor or Creditor The creditor States must suffer unjustly from every emission by the debtor States. We have seen retaliating acts on this subject which threatened danger not to the harmony only, but the tranquility of the Union. The plan of Mr. Paterson, not giving even a negative on the acts of the States, left them as much at liberty as ever to execute their unrighteous projects against each other.
   

4. Will it secwe the internal tranquility of the States themselves. The insurrections in Massachusetts admonished all the States of the danger to which they were exposed. Yet the plan of Mr. Paterson contained no provisions for supplying the defect of the Confederation on this point. According to the Republican theory indeed. Right and power being both vested in the majority, are held to be synonimous. According to fact and experience, a minority may in an appeal to force be an overmatch for the majority.
   

   l. If the minority happen to include all such as possess the skill and habits of military life, with such as possess the great pecuniary resources, one third may conquer the remain, ing two thirds,
   

   2. one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, and who for obvious reasons may be more ready to join the standard of sedition than that of the established Government.
   

   3. where slavery exists, the Republican Theory becomes still more fallacious.
   

5. Will it secure a good internal legislation and administration to the particular States ? In developing the evils which vitiate the political system of the United States it is proper to take into view those which prevail within the States individually as well as those which affect them collectively. Since the former indirectly affect the whole, and there is great reason to believe that the pressure of them had a full share in the motives which produced the present Convention. Under this head he enumerated and animadverted on
   

   l. the multiplicity of the laws passed by the several States.
   

   2. the mutability of their laws.
   

   3. the injusdce of them.
   

   4. the impotence of them: observing that Mr. Paterson`s plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the Community.
   

6. Will it secure the Union against the influence of foreign powers over its members. He pretended not to say that any such influence had yet been tried, but it was naturally to be expected that occasions would produce it. As lessons which claimed particular attention, he cited the intrigues practised among the Amphyctionic Confederates first by the Kings of Persia, and afterwards fatally by Philip of Macedon, among the Achaeans, first by Macedon and afterwards no less fatally by Rome, among the Swiss by Austria, France and the lesser neighbouring powers, among the members of the Germanic Body by France, England, Spain and Russia-: and in the Belgic Republic, by all the great neighbouring powers. The plan of Mr. Paterson, not giving to the general Councils any negative on the will of the particular States, left the door open for the like pernicious machinations among ourselves.
   

7. He begged the smaller States which were most attached to Mr. Paterson`s plan to consider the situation in which it would leave them. In the first place they would continue to bear the whole expence of maintaining their Delegates in Congress. It ought not to be said that if they were willing to bear this burden no others had a right to complain. As far as it led the smali States to forbear keeping up a representation, by which the public business was delayed, it was evidently a matter of common concern. An examination of the minutes of Congress would satisfy every one that the public business had been frequently delayed by this cause, and that the States most frequently unrepresented in Congress were not the larger States. He reminded the convention of another consequence of leaving on a small State the burden of maintaining a Representation in Congress. During a considerable period of the War, one of the Representatives of Delaware, in whom alone before the signing of the Confederation the entire vote of that State and after that event one half of its vote, frequently resided, was a Citizen and Resident of Pennsylvania and held an office in his own State incompatible with an appointment from it to Congress. During another period, the same State was represented by three delegates two of whom were citizens of Pennsylvania and the third a Citizen of New Jersey. These expedients must have been intended to avoid the burden of supporting delegates from their own State. But whatever might have been the cause, was not in effect the vote of one State doubled, and the influence of another increased by it. In the second place the coercion, on which the efficacy of the plan depends, can never be exerted but on themselves. The larger States will be impregnable, the smaller only can feel the vengeance of it. He illustrated the position by the history of the Amphyctionic Confederates: and the ban of the German Empire. It was the cobweb which could entangle the weak, but would be the sport of the strong.
   

8. He begged them to consider the situation in which they would remain in case their pertinacious adherence to an inadmissible plan, should prevent the adoption of any plan. The contemplation of such an event was painful, but it would be prudent to submit to the task of examining it at a distance, that the means of escaping it might be the more readily embraced. Let the Union of the States be dissolved, and one of two consequences must happen. Either the States must remain individually independent and sovereign, or two or more Confederacies must be formed among them. In the first event would the small States be more secure against the ambition and power of their larger neighbours, than they would be under a general Government pervading with equal energy every part of the Empire, and having an equal interest in protecting every part against every other part. In the second, can the smaller expect that their larger neighbours would confederate with them on the principle of the present confederacy, which gives to each member, an equal suffrage, or that they would exact less severe concessions from the smaller States, than are proposed in the scheme of Mr. Randolph?

   
   The great difficulty lies in the affair of Representation: and if this could be adjusted, all others would be surrnountable. It was admitted by both the gentlemen from New Jersey. (Mr. Brearly and Mr. Paterson) that it would not be just to allow Virginia which was l. times as large as Delaware an equal vote only. Their language was that it would not be safe for Delaware to allow Virginia l. times as many votes. The expedient proposed by them was that all the States should be thrown into one mass and a new partition be made into l. equal parts. Would such a scheme be practicable. The dissimilarities existing in the rules of property, as well as in the manners, habits and prejudices of the different States, amounted to a prohibition of the attempt. It had been found impossible for the power of one of the most absolute princes in Europe (King of France) directed by the wisdom of one of the most enlightened and patriotic Ministers (Mr. Neckar) that any age has produced to equalize in some points only the different usages and regulations of the different provinces. But admitting a general amalgamation and repartition of the States to be practicable, and the danger apprehended by the smaller States from a proportional representation to be real, would not a particular and voluntary coalition of these with their neighbours, be less inconvenient to the whole community, and equally effectual for their own safety. If New Jersey or Delaware conceived that an advantage would accrue to them from an equalization of the States, in which case they would necessarily form a junction with their neighbours, why might not this end be attained by leaving them at liberty by the Constitution to form such a junction whenever they pleased. And why should they wish to obtrude a like arrangement on all the States, when it was, to say the least, extremely difficult, would be obnoxious to many of the States, and when neither the inconveniency, nor the benefit of the expedient to themselves, would be lessened, by confining it to themselves. -The prospect of many new States to the Westward was another consideration of importance. If they should come into the Union at all, they would come when they contained but few inhabitants. If they should be entitled to vote according to their proportions of inhabitants, all would be right and safe. Let them have an equal vote, and a more objectionable minority than ever might give law to the whole.