Author:
Robert Yates?
18 October 1787
To the Citizens of the State of New-York.
When the public is called to investigate and decide upon a question in which
not only the present members of the community are deeply interested, but upon
which the happiness and misery of generations yet unborn is in great measure
suspended, the benevolent mind cannot help feeling itself peculiarly interested
in the result.
In this situation, I trust the feeble efforts of an individual, to lead the
minds of the people to a wise and prudent determination, cannot fail of being
acceptable to the candid and dispassionate part of the community. Encouraged by
this consideration, I have been induced to offer my thoughts upon the present
important crisis of our public affairs.
Perhaps this country never saw so critical a period in their political
concerns. We have felt the feebleness of the ties by which these United-States
are held together, and the want of sufficient energy in our present
confederation, to manage, in some instances, our general concerns. Various
expedients have been proposed to remedy these evils, but none have succeeded.
At length a Convention of the states has been assembled, they have formed a
constitution which will now, probably, be submitted to the people to ratify or
reject, who are the fountain of all power, to whom alone it of right belongs to
make or unmake constitutions, or forms of government, at their pleasure. The
most important question that was ever proposed to your decision, or to the
decision of any people under heaven, is before you, and you are to decide upon
it by men of your own election, chosen specially for this purpose. If the
constitution, offered to your acceptance, be a wise one, calculated to preserve
the invaluable blessings of liberty, to secure the inestimable rights of
mankind, and promote human happiness, then, if you accept it, you will lay a
lasting foundation of happiness for millions yet unborn; generations to come
will rise up and call you blessed. You may rejoice in the prospects of this
vast extended continent becoming filled with freemen, who will assert the
dignity of human nature. You may solace yourselves with the idea, that society,
in this favoured land, will fast advance to the highest point of perfection;
the human mind will expand in knowledge and virtue, and the golden age be, in
some measure, realised. But if, on the other hand, this form of government
contains principles that will lead to the subversion of liberty if it
tends to establish a despotism, or, what is worse, a tyrannic aristocracy;
then, if you adopt it, this only remaining assylum for liberty will be shut up,
and posterity will execrate your memory.
Momentous then is the question you have to determine, and you are called
upon by every motive which should influence a noble and virtuous mind, to
examine it well, and to make up a wise judgment. It is insisted, indeed, that
this constitution must be received, be it ever so imperfect. If it has its
defects, it is said, they can be best amended when they are experienced. But
remember, when the people once part with power, they can seldom or never resume
it again but by force. Many instances can be produced in which the people have
voluntarily increased the powers of their rulers; but few, if any, in which
rulers have willingly abridged their authority. This is a sufficient reason to
induce you to be careful, in the first instance, how you deposit the powers of
government.
With these few introductory remarks, I shall proceed to a consideration of
this constitution:
The first question that presents itself on the subject is, whether a
confederated government be the best for the United States or not? Or in other
words, whether the thirteen United States should be reduced to one great
republic, governed by one legislature, and under the direction of one executive
and judicial; or whether they should continue thirteen confederated republics,
under the direction and controul of a supreme federal head for certain defined
national purposes only?
This enquiry is important, because, although the government reported by the
convention does not go to a perfect and entire consolidation, yet it approaches
so near to it, that it must, if executed, certainly and infallibly terminate in
it.
This government is to possess absolute and uncontroulable power,
legislative, executive and judicial, with respect to every object to which it
extends, for by the last clause of section 8th, article 1st, it is declared
"that the Congress shall have power 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 office thereof." And by the 6th article,
it is declared "that this constitution, and the laws of the United States,
which shall be made in pursuance thereof, and the treaties made, or which shall
be made, under the authority of the United States, shall be the supreme law of
the land; and the judges in every state shall be bound thereby, any thing in
the constitution, or law of any state to the contrary notwithstanding." It
appears from these articles that there is no need of any intervention of the
state governments, between the Congress and the people, to execute any one
power vested in the general government, and that the constitution and laws of
every state are nullified and declared void, so far as they are or shall be
inconsistent with this constitution, or the laws made in pursuance of it, or
with treaties made under the authority of the United States. The
government then, so far as it extends, is a complete one, and not a
confederation. It is as much one complete government as that of New-York or
Massachusetts, has as absolute and perfect powers to make and execute all laws,
to appoint officers, institute courts, declare offences, and annex penalties,
with respect to every object to which it extends, as any other in the world. So
far therefore as its powers reach, all ideas of confederation are given up and
lost. It is true this government is limited to certain objects, or to speak
more properly, some small degree of power is still left to the states, but a
little attention to the powers vested in the general government, will convince
every candid man, that if it is capable of being executed, all that is reserved
for the individual states must very soon be annihilated, except so far as they
are barely necessary to the organization of the general government. The powers
of the general legislature extend to every case that is of the least importance
there is nothing valuable to human nature, nothing dear to freemen, but
what is within its power. It has authority to make laws which will affect the
lives, the liberty, and property of every man in the United States; nor can the
constitution or laws of any state, in any way prevent or impede the full and
complete execution of every power given. The legislative power is competent to
lay taxes, duties, imposts, and excises; there is no limitation to this
power, unless it be said that the clause which directs the use to which those
taxes, and duties shall be applied, may be said to be a limitation: but this is
no restriction of the power at all, for by this clause they are to be applied
to pay the debts and provide for the common defence and general welfare of the
United States; but the legislature have authority to contract debts at their
discretion; they are the sole judges of what is necessary to provide for the
common defence, and they only are to determine what is for the general welfare;
this power therefore is neither more nor less, than a power to lay and collect
taxes, imposts, and excises, at their pleasure; not only [is] the power to lay
taxes unlimited, as to the amount they may require, but it is perfect and
absolute to raise them in any mode they please. No state legislature, or any
power in the state governments, have any more to do in carrying this into
effect, than the authority of one state has to do with that of another. In the
business therefore of laying and collecting taxes, the idea of confederation is
totally lost, and that of one entire republic is embraced. It is proper here to
remark, that the authority to lay and collect taxes is the most important of
any power that can be granted; it connects with it almost all other powers, or
at least will in process of time draw all other after it; it is the great mean
of protection, security, and defence, in a good government, and the great
engine of oppression and tyranny in a bad one. This cannot fail of being the
case, if we consider the contracted limits which are set by this constitution,
to the late [state?] governments, on this article of raising money. No state
can emit paper money lay any duties, or imposts, on imports, or exports,
but by consent of the Congress; and then the net produce shall be for the
benefit of the United States: the only mean therefore left, for any state to
support its government and discharge its debts, is by direct taxation; and the
United States have also power to lay and collect taxes, in any way they please.
Every one who has thought on the subject, must be convinced that but small sums
of money can be collected in any country, by direct taxe[s], when the foederal
government begins to exercise the right of taxation in all its parts, the
legislatures of the several states will find it impossible to raise monies to
support their governments. Without money they cannot be supported, and they
must dwindle away, and, as before observed, their powers absorbed in that of
the general government.
It might be here shewn, that the power in the federal legislative, to raise
and support armies at pleasure, as well in peace as in war, and their controul
over the militia, tend, not only to a consolidation of the government, but the
destruction of liberty. I shall not, however, dwell upon these, as a few
observations upon the judicial power of this government, in addition to the
preceding, will fully evince the truth of the position.
The judicial power of the United States is to be vested in a supreme court,
and in such inferior courts as Congress may from time to time ordain and
establish. The powers of these courts are very extensive; their jurisdiction
comprehends all civil causes, except such as arise between citizens of the same
state; and it extends to all cases in law and equity arising under the
constitution. One inferior court must be established, I presume, in each state,
at least, with the necessary executive officers appendant thereto. It is easy
to see, that in the common course of things, these courts will eclipse the
dignity, and take away from the respectability, of the state courts. These
courts will be, in themselves, totally independent of the states, deriving
their authority from the United States, and receiving from them fixed salaries;
and in the course of human events it is to be expected, that they will swallow
up all the powers of the courts in the respective states.
How far the clause in the 8th section of the 1st article may operate to do
away all idea of confederated states, and to effect an entire consolidation of
the whole into one general government, it is impossible to say. The powers
given by this article are very general and comprehensive, and it may receive a
construction to justify the passing almost any law. A power to make all laws,
which shall be necessary and proper, for carrying into execution, all
powers vested by the constitution in the government of the United States, or
any department or officer thereof, is a power very comprehensive and definite
[indefinite?], and may, for ought I know, be exercised in a such manner as
entirely to abolish the state legislatures. Suppose the legislature of a state
should pass a law to raise money to support their government and pay the state
debt, may the Congress repeal this law, because it may prevent the collection
of a tax which they may think proper and necessary to lay, to provide for the
general welfare of the United States? For all laws made, in pursuance of this
constitution, are the supreme lay of the land, and the judges in every state
shall be bound thereby, any thing in the constitution or laws of the different
states to the contrary notwithstanding. By such a law, the government of
a particular state might be overturned at one stroke, and thereby be deprived
of every means of its support.
It is not meant, by stating this case, to insinuate that the constitution
would warrant a law of this kind; or unnecessarily to alarm the fears of the
people, by suggesting, that the federal legislature would be more likely to
pass the limits assigned them by the constitution, than that of an individual
state, further than they are less responsible to the people. But what is meant
is, that the legislature of the United States are vested with the great and
uncontroulable powers, of laying and collecting taxes, duties, imposts, and
excises; of regulating trade, raising and supporting armies, organizing,
arming, and disciplining the militia, instituting courts, and other general
powers. And are by this clause invested with the power of making all laws,
proper and necessary, for carrying all these into execution; and they
may so exercise this power as entirely to annihilate all the state governments,
and reduce this country to one single government. And if they may do it, it is
pretty certain they will; for it will be found that the power retained by
individual states, small as it is, will be a clog upon the wheels of the
government of the United States; the latter therefore will be naturally
inclined to remove it out of the way. Besides, it is a truth confirmed by the
unerring experience of ages, that every man, and every body of men, invested
with power, are ever disposed to increase it, and to acquire a superiority over
every thing that stands in their way. This disposition, which is implanted in
human nature, will operate in the federal legislature to lessen and ultimately
to subvert the state authority, and having such advantages, will most certainly
succeed, if the federal government succeeds at all. It must be very evident
then, that what this constitution wants of being a complete consolidation of
the several parts of the union into one complete government, possessed of
perfect legislative, judicial, and executive powers, to all intents and
purposes, it will necessarily acquire in its exercise and operation.
Let us now proceed to enquire, as I at first proposed, whether it be best
the thirteen United States should be reduced to one great republic, or not? It
is here taken for granted, that all agree in this, that whatever government we
adopt, it ought to be a free one; that it should be so framed as to secure the
liberty of the citizens of America, and such an one as to admit of a full,
fair, and equal representation of the people. The question then will be,
whether a government thus constituted, and founded on such principles, is
practicable, and can be exercised over the whole United States, reduced into
one state?
If respect is to be paid to the opinion of the greatest and wisest men who
have ever thought or wrote on the science of government, we shall be
constrained to conclude, that a free republic cannot succeed over a country of
such immense extent, containing such a number of inhabitants, and these
encreasing in such rapid progression as that of the whole United States. Among
the many illustrious authorities which might be produced to this point, I shall
content myself with quoting only two. The one is the baron de Montesquieu,
spirit of laws, chap. xvi. vol. I [book VIII]. "It is natural to a
republic to have only a small territory, otherwise it cannot long subsist. In a
large republic there are men of large fortunes, and consequently of less
moderation; there are trusts too great to be placed in any single subject; he
has interest of his own; he soon begins to think that he may be happy, great
and glorious, by oppressing his fellow citizens; and that he may raise himself
to grandeur on the ruins of his country. In a large republic, the public good
is sacrificed to a thousand views; it is subordinate to exceptions, and depends
on accidents. In a small one, the interest of the public is easier perceived,
better understood, and more within the reach of every citizen; abuses are of
less extent, and of course are less protected." Of the same opinion is the
marquis Beccarari.
History furnishes no example of a free republic, any thing like the extent
of the United States. The Grecian republics were of small extent; so also was
that of the Romans. Both of these, it is true, in process of time, extended
their conquests over large territories of country; and the consequence was,
that their governments were changed from that of free governments to those of
the most tyrannical that ever existed in the world.
Not only the opinion of the greatest men, and the experience of mankind, are
against the idea of an extensive republic, but a variety of reasons may be
drawn from the reason and nature of things, against it. In every government,
the will of the sovereign is the law. In despotic governments, the supreme
authority being lodged in one, his will is law, and can be as easily expressed
to a large extensive territory as to a small one. In a pure democracy the
people are the sovereign, and their will is declared by themselves; for this
purpose they must all come together to deliberate, and decide. This kind of
government cannot be exercised, therefore, over a country of any considerable
extent; it must be confined to a single city, or at least limited to such
bounds as that the people can conveniently assemble, be able to debate,
understand the subject submitted to them, and declare their opinion concerning
it.
In a free republic, although all laws are derived from the consent of the
people, yet the people do not declare their consent by themselves in person,
but by representatives, chosen by them, who are supposed to know the minds of
their constituents, and to be possessed of integrity to declare this mind.
In every free government, the people must give their assent to the laws by
which they are governed. This is the true criterion between a free government
and an arbitrary one. The former are ruled by the will of the whole, expressed
in any manner they may agree upon; the latter by the will of one, or a few. If
the people are to give their assent to the laws, by persons chosen and
appointed by them, the manner of the choice and the number chosen, must be
such, as to possess, be disposed, and consequently qualified to declare the
sentiments of the people; for if they do not know, or are not disposed to speak
the sentiments of the people, the people do not govern, but the sovereignty is
in a few. Now, in a large extended country, it is impossible to have a
representation, possessing the sentiments, and of integrity, to declare the
minds of the people, without having it so numerous and unwieldly, as to be
subject in great measure to the inconveniency of a democratic government.
The territory of the United States is of vast extent; it now contains near
three millions of souls, and is capable of containing much more than ten times
that number. Is it practicable for a country, so large and so numerous as they
will soon become, to elect a representation, that will speak their sentiments,
without their becoming so numerous as to be incapable of transacting public
business? It certainly is not.
In a republic, the manners, sentiments, and interests of the people should
be similar. If this be not the case, there will be a constant clashing of
opinions; and the representatives of one part will be continually striving
against those of the other. This will retard the operations of government, and
prevent such conclusions as will promote the public good. If we apply this
remark to the condition of the United States, we shall be convinced that it
forbids that we should be one government. The United States includes a variety
of climates. The productions of the different parts of the union are very
variant, and their interests, of consequence, diverse. Their manners and habits
differ as much as their climates and productions; and their sentiments are by
no means coincident. The laws and customs of the several states are, in many
respects, very diverse, and in some opposite; each would be in favor of its own
interests and customs, and, of consequence, a legislature, formed of
representatives from the respective parts, would not only be too numerous to
act with any care or decision, but would be composed of such heterogenous and
discordant principles, as would constantly be contending with each other.
The laws cannot be executed in a republic, of an extent equal to that of the
United States, with promptitude.
The magistrates in every government must be supported in the execution of
the laws, either by an armed force, maintained at the public expence for that
purpose; or by the people turning out to aid the magistrate upon his command,
in case of resistance.
In despotic governments, as well as in all the monarchies of Europe,
standing armies are kept up to execute the commands of the prince or the
magistrate, and are employed for this purpose when occasion requires: But they
have always proved the destruction of liberty, and [are] abhorrent to the
spirit of a free republic. In England, where they depend upon the parliament
for their annual support, they have always been complained of as oppressive and
unconstitutional, and are seldom employed in executing of the laws; never
except on extraordinary occasions, and then under the direction of a civil
magistrate.
A free republic will never keep a standing army to execute its laws. It must
depend upon the support of its citizens. But when a government is to receive
its support from the aid of the citizens, it must be so constructed as to have
the confidence, respect, and affection of the people." Men who, upon the
call of the magistrate, offer themselves to execute the laws, are influenced to
do it either by affection to the government, or from fear; where a standing
army is at hand to punish offenders, every man is actuated by the latter
principle, and therefore, when the magistrate calls, will obey: but, where this
is not the case, the government must rest for its support upon the confidence
and respect which the people have for their government and laws. The body of
the people being attached, the government will always be sufficient to support
and execute its laws, and to operate upon the fears of any faction which may be
opposed to it, not only to prevent an opposition to the execution of the laws
themselves, but also to compel the most of them to aid the magistrate; but the
people will not be likely to have such confidence in their rulers, in a
republic so extensive as the United States, as necessary for these purposes.
The confidence which the people have in their rulers, in a free republic,
arises from their knowing them, from their being responsible to them for their
conduct, and from the power they have of displacing them when they misbehave:
but in a republic of the extent of this continent, the people in general would
be acquainted with very few of their rulers: the people at large would know
little of their proceedings, and it would be extremely difficult to change
them. The people in Georgia and New-Hampshire would not know one another's
mind, and therefore could not act in concert to enable them to effect a general
change of representatives. The different parts of so extensive a country could
not possibly be made acquainted with the conduct of their representatives, nor
be informed of the reasons upon which measures were founded. The consequence
will be, they will have no confidence in their legislature, suspect them of
ambitious views, be jealous of every measure they adopt, and will not support
the laws they pass. Hence the government will be nerveless and inefficient, and
no way will be left to render it otherwise, but by establishing an armed force
to execute the laws at the point of the bayonet a government of all
others the most to be dreaded.
In a republic of such vast extent as the United-States, the legislature
cannot attend to the various concerns and wants of its different parts. It
cannot be sufficiently numerous to be acquainted with the local condition and
wants of the different districts, and if it could, it is impossible it should
have sufficient time to attend to and provide for all the variety of cases of
this nature, that would be continually arising.
In so extensive a republic, the great officers of government would soon
become above the controul of the people, and abuse their power to the purpose
of aggrandizing themselves, and oppressing them. The trust committed to the
executive offices, in a country of the extent of the United-States, must be
various and of magnitude. The command of all the troops and navy of the
republic, the appointment of officers, the power of pardoning offences, the
collecting of all the public revenues, and the power of expending them, with a
number of other powers, must be lodged and exercised in every state, in the
hands of a few. When these are attended with great honor and emolument, as they
always will be in large states, so as greatly to interest men to pursue them,
and to be proper objects for ambitious and designing men, such men will be ever
restless in their pursuit after them. They will use the power, when they have
acquired it, to the purposes of gratifying their own interest and ambition, and
it is scarcely possible, in a very large republic, to call them to account for
their misconduct, or to prevent their abuse of power.
These are some of the reasons by which it appears, that a free republic
cannot long subsist over a country of the great extent of these states. If then
this new constitution is calculated to consolidate the thirteen states into
one, as it evidently is, it ought not to be adopted.
Though I am of opinion, that it is a sufficient objection to this
government, to reject it, that it creates the whole union into one government,
under the form of a republic, yet if this objection was obviated, there are
exceptions to it, which are so material and fundamental, that they ought to
determine every man, who is a friend to the liberty and happiness of mankind,
not to adopt it. I beg the candid and dispassionate attention of my countrymen
while I state these objections they are such as have obtruded themselves
upon my mind upon a careful attention to the matter, and such as I sincerely
believe are well founded. There are many objections, of small moment, of which
I shall take no notice perfection is not to be expected in any thing
that is the production of man and if I did not in my conscience believe
that this scheme was defective in the fundamental principles in the
foundation upon which a free and equal government must rest I would hold
my peace.
Brutus.
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