Posted on 02/07/2011 7:58:41 AM PST by Publius
On the same day that Melancton Smith made his second speech to New York’s ratifying convention at Poughkeepsie, Alexander Hamilton’s third essay on the Judiciary appeared in print.
1 To the People of the State of New York:
2 To judge with accuracy of the proper extent of the Federal Judicature, it will be necessary to consider in the first place what are its proper objects.
3 It seems scarcely to admit of controversy that the judiciary authority of the Union ought to extend to these several descriptions of cases:
4 The first point depends upon this obvious consideration: that there ought always to be a constitutional method of giving efficacy to constitutional provisions.
5 What, for instance, would avail restrictions on the authority of the state legislatures without some constitutional mode of enforcing the observance of them?
6 The states by the plan of the Convention are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government.
7 The imposition of duties on imported articles and the emission of paper money are specimens of each kind.
8 No man of sense will believe that such prohibitions would be scrupulously regarded without some effectual power in the government to restrain or correct the infractions of them.
9 This power must either be a direct negative on the state laws or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union.
10 There is no third course that I can imagine.
11 The latter appears to have been thought by the Convention preferable to the former and, I presume, will be most agreeable to the states.
12 As to the second point, it is impossible by any argument or comment to make it clearer than it is in itself.
13 If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative may be ranked among the number.
14 The mere necessity of uniformity in the interpretation of the national laws decides the question.
15 Thirteen independent courts of final jurisdiction over the same causes arising upon the same laws is a hydra in government from which nothing but contradiction and confusion can proceed.
16 Still less need be said in regard to the third point.
17 Controversies between the nation and its members or citizens can only be properly referred to the national tribunals.
18 Any other plan would be contrary to reason, to precedent and to decorum.
19 The fourth point rests on this plain proposition that the peace of the whole ought not to be left at the disposal of a part.
20 The Union will undoubtedly be answerable to foreign powers for the conduct of its members.
21 And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.
22 As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the Federal Judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned.
23 This is not less essential to the preservation of the public faith than to the security of the public tranquillity.
24 A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations, and those which may stand merely on the footing of the municipal law.
25 The former kind may be supposed proper for the federal jurisdiction, the latter for that of the states.
26 But it is at least problematical whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations.
27 And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other.
28 So great a proportion of the cases in which foreigners are parties involve national questions that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.
29 The power of determining causes between two states, between one state and the citizens of another, and between the citizens of different states, is perhaps not less essential to the peace of the Union than that which has been just examined.
30 History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian towards the close of the Fifteenth Century, and informs us at the same time of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire.
31 This was a court invested with authority to decide finally all differences among the members of the Germanic body.
32 A method of terminating territorial disputes between the states under the authority of the federal head was not unattended to, even in the imperfect system by which they have been hitherto held together.
33 But there are many other sources, besides interfering claims of boundary, from which bickering and animosities may spring up among the members of the Union.
34 To some of these we have been witnesses in the course of our past experience.
35 It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the states.
36 And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes that could not be foreseen nor specifically provided against.
37 Whatever practices may have a tendency to disturb the harmony between the states are proper objects of federal superintendence and control.
38 It may be esteemed the basis of the Union that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.”
39 And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the National Judiciary ought to preside in all cases in which one state or its citizens are opposed to another state or its citizens.
40 To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different states and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.
41 The fifth point will demand little animadversion.
42 The most bigoted idolizers of state authority have not thus far shown a disposition to deny the National Judiciary the cognizance of maritime causes.
43 These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace.
44 The most important part of them are, by the present Confederation, submitted to federal jurisdiction.
45 The reasonableness of the agency of the national courts, in cases in which the state tribunals cannot be supposed to be impartial, speaks for itself.
46 No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias.
47 This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different states and their citizens.
48 And it ought to have the same operation in regard to some cases between citizens of the same state.
49 Claims to land under grants of different states founded upon adverse pretensions of boundary are of this description.
50 The courts of neither of the granting states could be expected to be unbiased.
51 The laws may have even prejudged the question and tied the courts down to decisions in favor of the grants of the state to which they belonged.
52 And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government.
53 Having thus laid down and discussed the principles which ought to regulate the constitution of the Federal Judiciary, we will proceed to test by these principles the particular powers of which, according to the plan of the Convention, it is to be composed.
54 It is to comprehend “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.”
55 This constitutes the entire mass of the judicial authority of the Union.
56 Let us now review it in detail.
57 It is, then, to extend:
58 First: To all cases in law and equity, arising under the Constitution and the laws of the United States.
59 This corresponds with the two first classes of causes, which have been enumerated as proper for the jurisdiction of the United States.
60 It has been asked, what is meant by “cases arising under the Constitution,” in contradiction from those “arising under the laws of the United States”?
61 The difference has been already explained.
62 All the restrictions upon the authority of the state legislatures furnish examples of it.
63 They are not, for instance, to emit paper money, but the interdiction results from the Constitution and will have no connection with any law of the United States.
64 Should paper money, notwithstanding, be emitted, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States in the ordinary signification of the terms.
65 This may serve as a sample of the whole.
66 It has also been asked: what need of the word “equity”?
67 What equitable causes can grow out of the Constitution and laws of the United States?
68 There is hardly a subject of litigation between individuals which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the states.
69 It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains; these are contracts in which, though there may have been no direct fraud or deceit sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties which a court of equity would not tolerate.
70 In such cases, where foreigners were concerned on either side, it would be impossible for the Federal Judicatories to do justice without an equitable as well as a legal jurisdiction.
71 Agreements to convey lands claimed under the grants of different states may afford another example of the necessity of an equitable jurisdiction in the federal courts.
72 This reasoning may not be so palpable in those states where the formal and technical distinction between law and equity is not maintained, as in this state, where it is exemplified by every day's practice.
73 The judiciary authority of the Union is to extend:
74 Second: To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers and consuls.
75 These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.
76 Third: To cases of admiralty and maritime jurisdiction.
77 These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.
78 Fourth: To controversies to which the United States shall be a party.
79 These constitute the third of those classes.
80 Fifth: To controversies between two or more states, between a state and citizens of another state, between citizens of different states.
81 These belong to the fourth of those classes and partake in some measure of the nature of the last.
82 Sixth: To cases between the citizens of the same state, claiming lands under grants of different states.
83 These fall within the last class and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same state.
84 Seventh: To cases between a state and the citizens thereof, and foreign states, citizens, or subjects.
85 These have been already explained to belong to the fourth of the enumerated classes and have been shown to be, in a peculiar manner, the proper subjects of the National Judicature.
86 From this review of the particular powers of the Federal Judiciary as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department and which were necessary to the perfection of the system.
87 If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the National Legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.
88 The possibility of particular mischiefs can never be viewed by a well informed mind as a solid objection to a general principle which is calculated to avoid general mischiefs and to obtain general advantages.
Hamilton’s Critique
Hamilton has returned to his consideration of Article III of the proposed Constitution in what will be a three-part treatise on the foundations of jurisprudence within the United States. It is a lawyer holding forth on legal theory; hence of all of the Federalist Papers these compose the toughest going for lay readers.
It also concludes Hamilton’s justification of the structures of government within the overall Constitution. It will become clearer as this series continues that he was presenting his closing arguments in this trial, and at its conclusion there will be two concluding Federalist Papers and then silence, their purpose having been fulfilled with the ratification of the Constitution.
Once again Hamilton makes his analytical plan clear at the outset. There are six subject areas that describe cases he considers properly rendered to the National Judiciary, several of which are matters more of definition than controversy (3).
The first class of cases considered “arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation,” and here there is at least the whiff of controversy, for these are the first acknowledgments that the National Judiciary will, as several of the anti-Federalists such as Brutus and Bryan have already pointed out, be a body superior to the high courts within the various states. Hamilton specifically justifies these cases as the ability to enforce “restrictions on the authority of the state legislatures” (5), and at 9 his formulation strikes the modern ear somewhat oddly.
9 This power must either be a direct negative on the state laws or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union.
11 The latter appears to have been thought by the Convention preferable to the former and, I presume, will be most agreeable to the states.
To Hamilton, and apparently to his contemporary readers, this was a finely drawn distinction; in application over the succeeding two centuries it became a distinction with very little difference.
The second class of cases is more definitional. It is an argument for centralized judicial power in the interest of uniformity in national law, bolstered by the commonsense point that a government must be able to adjudicate where it can legislate (13).
The third class is definitional as well, inasmuch as it refers to disputes between citizens and the federal government under matters of federal law. The complications arising from any attempt to adjudicate these within the differing state systems are so obvious that even the anti-Federalists did not care to dispute them.
The fourth class, however, is similar in tone but quite different in application, and here the anti-Federalists did find cause for objection. There are two parts: first, those cases in which the federal government must find itself the intermediary between states and a foreign power, where a common responsibility toward other nations must imply a common authority (21). That, however, carries an implication of what Brutus regarded as a clear breach of state sovereignty.
22 As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the Federal Judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned.
There is, to be sure, valid reasoning behind this point, and even under the Articles of Confederation there were limits to the states’ abilities to proceed independently with foreign powers. Even so, this constituted a direct reach within the state court systems that Brutus, obviously an attorney himself, considered a blatant grab for power. Hamilton acknowledges the argument.
24 A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations, and those which may stand merely on the footing of the municipal law.
25 The former kind may be supposed proper for the federal jurisdiction, the latter for that of the states.
Unfortunately that won’t do, says Hamilton. There are already difficulties with lex loci (26), a legal term meaning the determination of which locality’s laws pertain when the disputants are from two different localities with different legal codes. There are, as well, complexities arising from the difficulty in drawing a definitional line between the two categories named in 25 and 27. Hamilton falls back onto the argument of expediency.
28 So great a proportion of the cases in which foreigners are parties involve national questions that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.
It is an argument hardly likely to mollify such critics as Brutus, who have interpreted this more bluntly as a bit of state sovereignty given up for convenience’ sake.
The second part of the fourth category of cases pertains to disputes between the states themselves, a potential minefield defused largely because such disputes had already arisen – boundary disputes between Vermont and New Hampshire for example, which had been referred to King George II and had no provision for judicial settlement within the Articles of Confederation. Hamilton’s characterization “essential to the peace of the union” (29) was no exaggeration: such disputes between states had already threatened on occasion to resort to force of arms. Nor need these be restricted to boundary disputes (33). Hamilton regards these to fall under broad principle.
37 Whatever practices may have a tendency to disturb the harmony between the states are proper objects of federal superintendence and control.
In context its meaning is obvious, but it is the sort of Hamiltonian throwaway comment that caused anti-Federalist eyebrows to raise. It is, in fact, a rather broad and potentially dangerous principle. Disputes between states, however, do demand a forum. Hamilton reminds the reader of the stability conferred onto a chaotic Holy Roman Empire by the inception of such a central court system known variously as the Imperial Chamber or Reichskammergericht.
31 This was a court invested with authority to decide finally all differences among the members of the Germanic body.
It was also a court notorious – although not entirely fairly so – for taking hundreds of years to close certain cases. Nevertheless, it was a forum preferable to the battlefield.
The fifth category of cases is perhaps the least controversial. Nevertheless, the contentious Hamilton simply cannot resist a gratuitous dig at his opponents.
42 The most bigoted idolizers of state authority have not thus far shown a disposition to deny the National Judiciary the cognizance of maritime causes.
The reader may be forgiven for wondering what might constitute a “bigoted idolizer of federal authority,” under the suspicion that Hamilton might find one in a nearby mirror. Nevertheless, the point is not under dispute; even under the Confederation such matters were federal (44).
The last of the six groups of cases involve those in which state courts may not be regarded as impartial, either because of cross jurisdiction or because they have had their hands tied by their respective state legislatures (51). Hamilton does not refer to any objection present to this matter, it being in his view a “reasonable” agency (45), a natural function for the federal courts.
Having established these categories of case and defended such as he considered under dispute, Hamilton now turns to classifying under the rubrics of these categories the sundry powers granted the Federal Judiciary. The reader enters a lawyer’s world, a world of precise definitions of terms such as “law” and “equity,” which serve to identify and place legal matters in their proper provinces.
It is apparent that the anti-Federalists have made their point to Hamilton regarding loss of state sovereignty, for one of these examples is worded in an unmistakably defensive manner.
82 Sixth: To cases between the citizens of the same state, claiming lands under grants of different states.
83 These fall within the last class and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same state.
Here Hamilton is specifying that the federal courts will not be so structured as to invade the established territory of the state courts. It is, however, an empty reassurance based on what he says next.
87 If some partial inconveniences should appear to be connected with the incorporation of any of them [the powers] into the plan, it ought to be recollected that the National Legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.
What Hamilton is saying is that should the powers of the Federal Judiciary be found inconvenient, they may be trimmed by the Legislative branch. What is not said, but is implied, is what Brutus stated outright in his #11: that either the Legislative or the Judicial itself might just as easily and legally extend those powers.
Brutus #11-59 Every extension of the power of the General Legislature, as well as of the judicial powers, will increase the powers of the courts, and the dignity and importance of the judges will be in proportion to the extent and magnitude of the powers they exercise.
Brutus #11-71 When the courts will have a precedent before them of a court [in Great Britain] which extended its jurisdiction in opposition to an act of the Legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the Constitution expressly against it, and they are authorized to construe its meaning and are not under any control?
It is, in fact, one of those contingencies against which it is difficult to guard. In Hamilton’s estimation it is a potential “mischief” that does not weigh against the potential good sufficiently to dismiss the overall plan.
88 The possibility of particular mischiefs can never be viewed by a well informed mind as a solid objection to a general principle which is calculated to avoid general mischiefs and to obtain general advantages.
That, as Brutus might counter, is a matter of opinion, and not of the legal sort. But it is clear at least that Hamilton has considered these matters deeply and has come to the conclusion that the hazards do not outweigh the gains. How deeply he has considered it will appear in his next two papers.
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
7 Feb 1788, Brutus #12, Part 1
8 Feb 1788, Federalist #51
8 Feb 1788, Federalist #52
12 Feb 1788, Federalist #53
12 Feb 1788, Federalist #54
14 Feb 1788, Brutus #12, Part 2
15 Feb 1788, Federalist #55
19 Feb 1788, Federalist #56
19 Feb 1788, Federalist #57
20 Feb 1788, Federalist #58
22 Feb 1788, Federalist #59
26 Feb 1788, Federalist #60
26 Feb 1788, Federalist #61
27 Feb 1788, Federalist #62
1 Mar 1788, Federalist #63
7 Mar 1788, Federalist #64
7 Mar 1788, Federalist #65
11 Mar 1788, Federalist #66
11 Mar 1788, Federalist #67
14 Mar 1788, Federalist #68
14 Mar 1788, Federalist #69
15 Mar 1788, Federalist #70
18 Mar 1788, Federalist #71
20 Mar 1788, Brutus #15
21 Mar 1788, Federalist #72
21 Mar 1788, Federalist #73
25 Mar 1788, Federalist #74
26 Mar 1788, Federalist #75
1 Apr 1788, Federalist #76
4 Apr 1788, Federalist #77
10 Apr 1788, Brutus #16
5 Jun 1788, Patrick Henry’s Speech to the Virginia Ratifying Convention #1
7 Jun 1788, Patrick Henry’s Speech to the Virginia Ratifying Convention #2
14 Jun 1788, Federalist #78
18 Jun 1788, Federalist #79
20 Jun 1788, Melancton Smith’s Speech to the New York Ratifying Convention #1
21 Jun 1788, Melancton Smith’s Speech to the New York Ratifying Convention #2
. . . Hamilton might find one in a nearby mirror . . .
That would read well in a letter to the editor.
Second, I think, would be some formal codification of a central judicial system. Such systems existed within each state, of course, but disputes between states and between the union and the outside world had no formal venue. Interstate commerce was making that very inconvenient and the specter of interstate tariffs was raising its ugly head. Hamilton in particular, ex-merchant as he was, recognized the stifling effect on American trade that would result. The answer in the Commerce clause, as above, risked granting a growing power to the federal government to meet a deficiency that was still relatively minor but promised to grow; not as dire an issue, as I understand it, as the serious financial straits just mentioned.
Central control of the army implied a standing army to the horror of the anti-Federalists, whose memories of such things were focused on the incredible damage caused on the continent by such armies during the Thirty Years' War. Such armies were instruments of law enforcement in those countries, an obvious threat to liberty, and it is a matter of some wonder that the federal government actually has respected the limitations imposed on itself in that arena to the degree that it has. The anti-Federalists were convinced that it would not, and were I personally to have to predict events knowing what they knew then I'd have scoffed at the idea of American armed forces sworn to uphold the Constitution and actually respecting that oath. It isn't the pattern one sees in many other places, and, I suspect, is yet another practice we've copied from the British, the episodes of the English Civil Wars notwithstanding. Washington was consistently hampered by the uneven quality of the troops that trickled to his army from the states and spent an agonizing winter at Valley Forge turning them into a national army. To address that the federal government was empowered to establish standards for militia training, neglect of which posed a potential disarming of the states, in the eyes of the anti-Federalists. In practice it didn't because we needed the armies. Not a happy thing to contemplate at the time, but we did.
Could these have been addressed by amending the Articles instead of replacing them? That's what the whole debate is about. Of these three issues I'm guessing that only the first demanded a new federal structure, simply because the failure of the old one was too systemic to address by patching it.
I've missed a bunch, I'm sure - hope somebody with a little better reading in the matter picks this one up.
"THE JUBILEE OF THE CONSTITUTION: A DISCOURSE" -
"Delivered at the Request of THE NEW YORK HISTORICAL SOCIETY, in the City of New York, on Tuesday, the 30th of April, 1839; Being the Fiftieth Anniversary of the INAUGURATION OF GEORGE WASHINGTON as PRESIDENT OF THE UNITED STATES, on Thursday, the 30th of April, 1789."
The Address provides a remarkable and comprehensive history of the founding of the Republic, the philosophy and principles of the Declaration of Independence, and a tracing of what had happened to those ideas in the intervening years.
All of this history is provided by a man who was 9 years old when his father was instrumental in the adoption of the Declaration of Independence, 20 years old when the Constitution was adopted, served as Minister to the Netherlands under President Washington, as minister to Prussia and to Russia, as Secretary of State, and as U. S. Senator. He was the 6th President, and from 1830 until his death in 1848 was a U. S. Congressman.
What better source could a modern seeker of knowledge about America's early history study than the words of this child of the Revolution?
Although his record of the "deficiencies" of the Articles is much more detailed than the following excerpt includes, this section of the Address will provide example of his analysis.
". . . . Independence was declared. The colonies were transformed into States. Their inhabitants were proclaimed to be one people, renouncing all allegiance to the British crown; all co-patriotism with the British nation; all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration.
"The Declaration of Independence was issued, in the excruciating agonies of a civil war, and by that war independence was to be maintained. Six long years it raged with unabated fury, and the Union was yet no more than a mutual pledge of faith, and a mutual participation of common sufferings and common dangers.
"The omnipotence of the British Parliament was vanquished. The independence of the United States of America, was not granted, but recognized. The nation had "assumed among the powers of the earth, the separate and equal station, to which the laws of nature, and of nature's God, entitled it" - but the one, united people, had yet NO GOVERNMENT.
"In the enthusiasm of their first spontaneous, unstipulated, unpremeditated union, they had flattered themselves that no general government would be required. As separate states they were all agreed that they should constitute and govern themselves. The revolution under which they were gasping for life, the war which was carrying desolation into all their dwellings, and mourning into every family, had been kindled by the abuse of power - the power of government. An invincible repugnance to the delegation of power, had thus been generated, by the very course of events which had rendered it necessary; and the more indispensable it became, the more awakened was the jealousy and the more intense was the distrust by which it was to be circumscribed.
"They relaxed their union into a league of friendship between sovereign and independent states. They constituted a Congress, with powers co-extensive with the nation, but so hedged and hemmed in with restrictions, that the limitation seemed to be the general rule, and the grant the occasional exception. The articles of confederation, subjected to philosophical analysis, seem to be little more than an enumeration of the functions of a national government which the congress constituted by the instrument was not authorized to perform. There was avowedly no executive power.
"The nation fell into an atrophy. The Union languished to the point of death. A torpid numbness seized upon all its faculties. A chilling cold indifference crept from its extremities to the center. The system was about to dissolve in its own imbecility - impotence in negotiation abroad - domestic insurrection at home, were on the point of bearing to a dishonorable grave the proclamation of a government founded on the rights of man, when a convention of delegates from eleven of the thirteen states, with George Washington at their head, sent forth to the people, an act to be made their own, speaking in their name and in the first person, thus: "We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty, to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
"This act was the complement to the Declaration of Independence; founded upon the same principles, carrying them out into practical execution, and forming with it, one entire system of national government. The Declaration was a manifesto to the world of mankind, to justify the one confederated people, for the violent and voluntary severance of the ties of their allegiance, for the renunciation of their country, and for assuming a station themselves, among the potentates of the world - a self-constituted sovereign - a self-constituted country.
"In the history of the human race this had never been done before. Monarchs had been dethroned for tyranny - kingdoms converted into republics, and revolted provinces had assumed the attributes of sovereign power. In the history of England itself, within one century and a half before the day of the Declaration of Independence, one lawful king had been brought to the block, and another expelled, with all his posterity, from his own kingdom, and a collateral dynasty had ascended his throne. But the former of these revolutions had by the deliberate and final sentence of the nation itself, been pronounced a rebellion, and the rightful heir of the executed king had been restored to the crown. In the latter, at the first onset, the royal recreant had fled - he was held to have abdicated the crown, and it was placed upon the heads of his daughter and of her husband, the prime leader of the conspiracy against him. In these events there had been much controversy upon the platform of English liberties - upon the customs of the ancient Britons; the laws of Alfred, the Witenagamote of the Anglo-Saxons, and the Great Charter of Runnymede with all its numberless confirmations. But the actors of those times had never ascended to the first foundation of civil society among men, nor had any revolutionary system of government been rested upon them.
"The motive for the Declaration of Independence was on its face an,owed to be "a decent respect for the opinions of mankind." Its purpose to declare the causes which impelled the people of the English colonies on the continent of North America, to separate themselves from the political community of the British nation. They declare only, the causes of their separation, but they announce at the same time their assumption of the separate and equal station to which the laws of nature and of nature's God entitle them, among the powers of the earth.
"Thus their first movement is to recognize and appeal to the laws of nature and to nature's God, for their right to assume the attributes of sovereign power as an independent nation.
"The causes of their necessary separation, for they begin and end by declaring it necessary, alleged in the Declaration, are all founded on the same laws of nature and of nature's God - and hence as preliminary to the enumeration of the causes of separation, they set forth as self-evident truths, the rights of individual man, by the laws of nature and of nature's God, to life, to liberty, to the pursuit of happiness. That all men are created equal. That to secure the rights of life, liberty and the pursuits of happiness, governments are instituted among men, deriving their just powers from the consent of the governed. AU this is by the laws of nature and of nature's God, and of course presupposes the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and of government. It avers, also, that governments are instituted to secure these rights of nature and of nature's God, and that whenever any form of government becomes destructive of those ends, it is the right of THE PEOPLE to alter, or to abolish it, and to institute a new government - to throw off a government degenerating into despotism, and to provide new guards for their future security. They proceed then to say that such was then the situation of the Colonies, and such the necessity which constrained them to alter their former systems of government.
"Then follows the enumeration of the acts of tyranny by which the king, parliament, and people of Great Britain, had perverted the powers to the destruction of the ends of government, over the Colonies, and the consequent necessity constraining the Colonies to the separation.
"In conclusion, the Representatives of the United States of America, in general Congress assembled, appealing to the Supreme judge of the world for the rectitude of their intentions, do, in the name and by the authority of the good people of these Colonies, solemnly publish and declare that these United Colonies, are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain, is, and ought to be totally dissolved; and that as free and independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. The appeal to the Supreme judge of the world, and the rule of right and wrong as paramount events to the power of independent States, are here again repeated in the very act of constituting a new sovereign community.
"It is not immaterial to remark, that the Signers of the Declaration, though qualifying themselves as the Representatives of the United States of America, in general Congress assembled, yet issue the Declaration, in the name and by the authority of the good people of the Colonies - and that they declare, not each of the separate Colonies, but the United Colonies, free and independent States. The whole people declared the Colonies in their united condition, of RIGHT, free and independent States.
"The dissolution of allegiance to the British crown, the severance of the Colonies from the British empire, and their actual existence as Independent States, thus declared of right, were definitively established in fact, by war and peace. The independence of each separate State had never been declared of right. It never existed in fact. Upon the principles of the Declaration of Independence, the dissolution of the ties of allegiance, the assumption of sovereign power, and the institution of civil government, are all acts of transcendent authority, which the people alone are competent to perform - and accordingly, it is in the name and by the authority of the people, that two of these acts - the dissolution of allegiance, with the severance from the British empire, and the declaration of the United Colonies, as free and independent States, were performed by that instrument.
"But there still remained the last and crowning act, which the People of the Union alone were competent to perform - the institution of civil government, for that compound nation, the United States of America.
"At this day it cannot but strike us as extraordinary, that it does not appear to have occurred to any one member of that assembly, which had laid down in terms so clear, so explicit, so unequivocal, the foundation of alt just government, in the imprescriptible rights of man, and the transcendent sovereignty of the people, and who in those principles, had set forth their only personal Vindication from the charges of rebellion against their king, and of treason to their country, that their last crowning act was still to be performed upon the same principles. That is, the institution, by the people of the United States, of a civil government, to guard and protect and defend them all. On the contrary, that same assembly which issued the Declaration of independence, instead of continuing to act in the name, and by the authority of the good people of the United States, had immediately after the appointment of the committee to prepare the Declaration, appointed another committee, of one member from each Colony, to prepare and digest the form of confederation, to be entered into between the Colonies.
"That committee reported on the 12th of July, eight days after the Declaration of independence had been issued, a draft of articles of confederation between the Colonies. This draft was prepared by John Dickinson, then a delegate from Pennsylvania, who voted against the Declaration of Independence, and never signed it - having been superseded by a new election of delegates from that State, eight days after his draft was reported.
"There was thus no congeniality of principle between the Declaration of Independence and the Articles of Confederation. The foundation of the former were a superintending Providence - the rights of man, and the constituent revolutionary power of the people. That of the latter was the sovereignty of organized power, and the independence of the separate or disunited States. The fabric of the Declaration and that of the Confederation, were each consistent with its own foundation, but they could not form one consistent symmetrical edifice. They were the productions of different minds and of adverse passions - one, ascending for the foundation of human government to the laws of nature and of God, written upon the heart of man - the other, resting upon the basis of human institutions, and prescriptive law and colonial charters. The comer stone of the one was right - that of the other was power.
"The work of the founders of our Independence was thus but half done. Absorbed in that more than Herculean task of maintaining that independence and its principles, by one of the most cruel wars that ever glutted the furies with human woe, they marched undaunted and steadfast through that fiery ordeal, and consistent in their principles to the end, concluded, as an acknowledged sovereignty of the United States, proclaimed by their people in 1776, a peace with that same monarch, whose sovereignty over them they had abjured in obedience to the laws of nature and of nature's God.
"But for these United States, they had formed no Constitution. Instead of resorting to the source of all constituted power, they had wasted their time, their talents, and their persevering, untiring toils, in erecting and roofing and buttressing a frail and temporary shed to shelter the nation from the storm, or rather a mere baseless scaffolding on which to stand, when they should raise the marble palace of the people, to stand the test of time."
To stop reading here would be to miss an amazing history of the Constitution and the first 50 years under it. As a matter of fact, this "Jubilee" might make a fine document for study all on its own at some point in time. What do you think?
I stand somewhat corrected. In my initial scan I missed the description of state border disputes. Yes, the lack of tax revenue, irregular commerce were the core problems that were to be addressed in a convention of the states.
Regarding the Judiciary, it is probable that if the British had a court system that recognized colonists’ right to seek “redress of grievances,” there would not have been a revolutionary war. Before declaring independence, our ancestors sought the rights of Englishmen. All the individual colonies and Congress could do was write letters and send peace commissioners to Parliament. When George III and Parliament dug in their heels, the American colonists had no recourse but to protest in the streets, which sometimes and then often turned into violent mobs that threatened British magistrates, evolved into armed resistance and then open revolt. The deficient court systems under the Brits and Articles of Confederation that could not adequately provide peaceful solutions, nor serve as the last bastion of our rights was corrected by Article III of the Constitution.
I think it’s pure gold. Off to do some reading. ;-)
If you click on the link in Post #1 to Brutus #12, Part 1 and then scroll down, you will find an essay laying out the details of the two competing theologies.
I confess to only having scratched the surface of their work so far but hope to dive in at some point to better understand where we came from as a nation and why we now find ourselves in the mess we're in.
“Unfortunately that won’t do, says Hamilton. There are already difficulties with lex loci (26), a legal term meaning the determination of which locality’s laws pertain when the disputants are from two different localities with different legal codes. There are, as well, complexities arising from the difficulty in drawing a definitional line between the two categories named in 25 and 27. Hamilton falls back onto the argument of expediency.”
As I understand your point, it was corrected by the 11th Amendment in 1795.
The two theologies can be parsed as follows.
Nationalist
Federalist
Thanks. I was too lazy to do it myself.
And just in case any may still be in doubt, I am STRONGLY in the federalist (as the term was understood at the time the ratification of the Constitution was under discussion) camp!
WOW! Nice! Thank you for the ping!!!!!
"It is an argument hardly likely to mollify such critics as Brutus, who have interpreted this more bluntly as a bit of state sovereignty given up for convenience’ sake."
Convenience?
I suspect you are well aware of the claims of British creditors and with state laws that denied them their right under the Treaty of Paris. State refusal to adhere to the treaty cost the lives of Americans. Until prewar creditors could sue, Britain refused to leave frontier forts. Like the French just a couple of decades earlier, the British hired Indians to attack frontier settlements and contain the United States. It would appear to be a reason why treaties are among the supreme laws of the land.
One of the first decisions passed by the Supreme Court in 1791 rightfully struck down a Connecticut law that restricted Brits from suing for prewar debt.
Hamilton's argument is, however, one of expediency (he uses that word himself in 28) rather than one of legal theory. Not that the reasons the alternative is expedient aren't perfectly valid - I think you've shown that they are. The question I'm placing in Brutus's mouth is whether a more distributed method might have served as well and still protected the prerogatives of the state in these matters. My personal guess is that it would not.
That is why JQA's account of what he described as the Articles' "departure" from the principles of the Declaration, and the Constitution as a "return" to those principles is so very interesting.
Enjoy!
Oh, how far we have fallen in our political discourse...!
You ARE kidding aren't you?
You do know that they don't even teach the Constitution in law schools these days don't you?
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