full power of sovereignty.
Accordingly, we find that upon the authority of that act, only approved by the several States, they did levy war, contract alliances, and exercise other high powers of sovereignty, even to the appointment of a dictator, prior to the present Confederation.
In this situation, and with this plenitude of power, our constitution knows and acknowledges the United States in Congress assembled, and provides for the annual appointment of delegates to represent this State in that body, which, in substance, amounts to a constitutional recognition of the Union, with complete sovereignty.
A government may exist without any formal organization or precise definition of its powers. However improper it might have been that the Federal Government should have continued to exist with such absolute and undefined authority, this does not militate against the position that it did possess such authority. It only proves the propriety of a more regular formation to ascertain its limits. This was the object of the present Confederation, which is, in fact, an abridgment of the original sovereignty of the Union.
It may be said (for it has been said upon other occasions) that, though the constitution did consider the United States in the light I have described, and left the Legislature at liberty in the first instance to have organized the Federal Government in such a manner as they thought proper, yet that liberty ceased with the establishment of the present Confederacy. The discretion of the Legislature was then determined.
This, upon the face of it, is a subtilty, uncountenanced by a single principle of government, or a single expression of the constitution. It is saying that a general authority given to the Legislature for the permanent preservation and good of the community, has been exhausted and spent by the exercise of a part of that authority. The position is the more destitute of color, because the Confederation, by the express terms of the compact, preserves and continues this power. The last clause of it authorizes Congress to propose, and the States to agree to, such alterations as might be afterward found necessary or expedient.
We see, therefore, that the constitution knows and acknowledges the United States in Congress; that it provides for the annual appointment of delegates to represent this State in that body without prescribing the objects or limits of that representation; that at the time our constitution was framed, the Union existed with full sovereignty; and that therefore the idea of sovereignty in the Union is not incompatible with it. We see, further, that the doctrine contained in the objection against granting legislative power would equally operate against granting executive power, would prove that the powers already vested in the Union are illegal and unconstitutional, would render a confederacy of the States in any form impracticable, and would defeat all those provisions of our own constitution which relate to the United States. I submit it to the committee, whether a doctrine pregnant with such consequences can be true; whether it is not as opposite to our constitution as to the principles of national safety and prosperity; and whether it would not be lamentable if the zeal of opposition to a particular measure should carry us to the extreme of imposing upon the constitution a sense foreign to it, which must embarrass the national councils upon future occasions, when all might agree in the utility and necessity of a different construction.
If the arguments I have used under this head are not well-founded, let gentlemen come forward and show their fallacy. Let the subject have a fair and full examination, and let truth, on whatever side it may be, prevail!
Flattering myself it will appear to the committee that the constitution, at least, offers us no impediment, I shall proceed to other topics of objection. The next that presents itself, is a supposed danger to liberty from granting legislative power to Congress.
But, before I enter upon this subject, to remove the aspersions thrown upon that body, I shall give a short history of some material facts relating to the origin and progress of the business. To excite the jealousies of the people, it has been industriously represented as an undue attempt to acquire an increase of power. It has been forgotten, or intentionally overlooked, that, considering it in the strongest light as a proposal to alter the Confederation, it is only exercising a power which the Confederation has in direct terms reposed in Congress, who, as before observed, are, by the 13th article, expressly authorized to propose alterations.
But so far was the measure from originating in improper views of that body, that, if I am rightly informed, it did not originate there at all. It was first suggested by a convention of the four Eastern States and New York, at Hartford, and, I believe, was proposed there by the deputies of this State. A gentleman on our bench, unconnected with Congress, who now hears me (I mean Judge Hobart), was one of them. It was dictated by a principle which bitter experience then taught us, and which, in peace or war, will always be found true—that adequate supplies to the Federal treasury can never flow from any system which requires the intervention of thirteen deliberatives between the call and the execution.
Congress agreed to the measure, and recommended it. This State complied without hesitation. All parts of the government — Senate, Assembly, and Council of Revision — concurred; neither the constitution nor the public liberty presented any obstacle. The difficulties from these sources are a recent discovery.
So late as the first session of the Legislature, after the evacuation of this city, the governor of the State, in his speech to both Houses, gave a decided countenance to the measure. This he does, though not in expressed terms, yet by implications not to be misunderstood.
The leading opponents of the impost, of the present day, have all of them, at other times, either concurred in the measure, in its most exceptionable form, and without the qualifications annexed to it by the proposed bill, or have, by other instances of conduct, contradicted their own hypothesis on the constitution, which professedly forms the main prop of their opposition.
The honorable member in my eye, at the last session, brought in a bill for granting to the United States the power of regulating the trade of the Union. This surely includes more ample legislative authority than is comprehended in the mere power of levying a particular duty. It indeed goes to a prodigious extent, much farther than, on a superficial view, can be imagined. Can we believe that the constitutional objection, if well founded, would so long have passed undiscovered and unnoticed? Or, is it fair to impute to Congress criminal motives for proposing a measure which was first recommended to them by five States, or from persisting in that measure, after the unequivocal experience they have had of the total inefficacy of the mode provided in the Confederation for supplying the treasury of the Union?
I leave the answer to these questions to the good sense and candor of the committee, and shall return to the examination of the question, how far the power proposed to be conferred upon Congress would be dangerous to the liberty of the people. And here I ask:
Whence can this danger arise? The members of Congress are annually chosen by the members of the several Legislatures. They come together with different habits, prejudices, and interests. They are, in fact, continually changing. How is it possible for a body so composed to be formidable to the liberties of States—several of which are large empires in themselves?
The subversion of the liberty of the States could not be the business of a day. It would at least require time, premeditation, and concert. Can it be supposed, that the members of a body so constituted would be unanimous in a scheme of usurpation? If they were not, would it not be discovered and disclosed? If we could even suppose this unanimity among one set of men, can we believe that all the new members who are yearly sent from one State or another would instantly enter into the same views? Would there not be found one honest man to warn his country of the danger?
Suppose the worst—suppose the combination entered into and continued. The execution would at least announce the design; and the means of defence would be easy. Consider the separate power of several of these States, and the situation of all. Consider the extent, populousness, and resources of Massachusetts,
