Cambridge, in Maryland: June 1st 1787
America is like a distempered Patient, whose recovery depends upon the skill of the Physician: Her situation is not desperate; but the nicest applications will be necessary to effect her cure; The remedy is certainly in the power of the present Convention; and it is sanguinely expected that their united Wisdom will find out the healing balm and restore her to health and happiness.
It is the duty of every Citizen to bestow his Attention on her subject and to employ what talents Nature may have kindly granted, in assisting to accomplish the great business under public consideration: and I trust so confidently in the good sense and honest intentions of the members of the Philadelphia Convention, that every Man, who has any hint or information to give on an occasion so truly important, will be patiently heard. Under this idea of their candour, I presume to mention my opinion respecting the federal Government and to suggest such notions as may be found worthy of attention and improvement.
I understand then that the object desired is a review and alteration of the Articles of Confederation and the perfect establishment; of The Federal Constitution of the United States.
In considering this Business, I wou’d keep before me the forms of government belonging to the several States; and observing the different principles applicable to each individually and to the whole collectively. I wou’d endeavor to raise the Fabric upon general and federal grounds. I wou’d positively suffer each State to retain its own sovereignty and independance—to preserve its own form of government—and to exercise within its own limits that general Jurisdiction which it now possesses. I wou’d remark (and this particular shou’d engage my keenest attention) that there exists in each Republic a State-interest, and in the United States a federal or continental Interest—that the State-interest is secured, protected and preserved in each government by a watchful constitution, which has provided, on principles of universal Necessity, a legislative, an executive and a judicial power for this essential purpose in all cases which concern her own internal regulation—and that therefore on similar principles The Federal Constitution must provide a legislative, an executive and a judicial power to secure, protect and preserve the Federal interest in every instance arising out the policy of the United States.
I wou’d not vest the legislative department in the hands of Congress upon its present establishment; that is, their form, the mode of their election and the duration of their appointments shou’d remain upon the present system; for a safer one cannot be devised: But their powers in this capacity shou’d be more enlarged and made as ample as the federal interest shou’d require; and, when ascertained, shou’d be as supreme, as absolute and obligatory upon all continental concerns, as the powers of legislation are in each republic. Congress shou’d consequently be authorized to enact Laws, Statutes or Ordinances in all Cases comprised within their Jurisdiction—whether relating to War, peace, Commerce, Navigation, Armies, Navies, Piracies, Treaties, Alliances, public Debts, Coinage, &ca &ca &ca.
But the Enaction of Statutes wou’d be fruitless, unless a force shou’d be granted to compel an obedience, and a power exist to exercise that force and put the Laws in execution. I wou’d therfore vest the executive department in the hands of a Governor assisted by thirteen Councillors, who shou’d be appointed and chosen by Congress annually; being neither members of their own body nor capable of a seat therein during their continuance in office. This is that department, which, when once made safe by the mode of its appointment, will be found essentially useful, by the Vigour it will add to the Statutes of Congress and the dispatch it will communicate to every public measure. It shou’d be their Business to collect the common force upon proper emergencies—to superintend the Collection of the federal Revenue—to direct arrangements in the military or naval departments—to appoint and commission proper persons to act under their direction—to sign and seal the public Statutes—and in short to exercise the powers of a supreme Magistrate and Council in all cases respecting which they shou’d derive an Authority from the hands of Congress or the Federal Constitution.
But disputes may arise between the different States or questions of importance be created on various accounts, for the termination of which a proper power shou’d be also established. I wou’d therefore vest the judicial Department in the hands of five able persons, to be appointed and commissioned by the supreme Governor and Council during good Behaviour; being neither members of their own body, nor of congress, nor capable of a Seat in either of those departments. It shou’d be their Business, at stated quarterly Terms, to hear and determine all disputes and Controversies arising between different States, whether on account of territory, boundary⟨s⟩ Jurisdiction or other Cause—to hear and determine all Violations of the Statutes of Congress and to adjust the penalty or punishments prescribed—to settle and decide on all admiralty-Causes either originally or by way of appeal—and in a word to take Jurisdiction of all such Matters and Cases as shou’d be committed to their Care, either directly by the Constitution or derivatively by Congress. This federal Court shou’d determine its Judgments by the Law of Nations—the Civil Law—the Statutes of Congress—or such other Authorities as may be applicable to the Nature of the Cause; and shou’d observe such forms and Course of procedure as shou’d be deemed expedient for the trial of Facts, and keep regular Entries of their Transactions by the assistance of a proper officer or Recorder.
I wou’d define the powers of each respective department as accurately as possible and leave little or nothing to discretion: There is an irresistable propensity to power in the mind of Man; and where he is permitted to exercise a Judgement of his own, the error is more commonly on the side of ambition than on the side of modesty. It is true the Nature of their several appointments in a great measure secures from danger; but still in every possible instance the less there is of doubt the less there is also of confusion.
The supreme Magistrate or Governor-General shou’d act in no instance but with the Assistance or Concurrence of the federal Council, or such a number of them as shou’d form a quorum for the dispatch of business: and to give each State a peculiar interest in their Deliberations, it wou’d be proper to consider whether the Council shou’d be wholly elected by Congress, or one of them by the Legislature of the respective States at their annual appointment of officers. They shou’d be intrusted with Authority to appoint and commission all continental officers, such as the Treasurers, the Secretaries, the Surveyors, Ministers, Ambassadors, Collectors, Judges, Admirals, Generals &ca &ca &ca whose continuance in commission shou’d be for one, three or more years according to the nature of the office and at the discretion of the Conventioners, who shou’d ascertain all these particulars. They shou’d have no controul, either of an affirmative or negative kind, over the Statutes of Congress—nor have power to direct the appropriation of public Monies, but where particularly authorized by the legislative department; and in such cases they shou’d be obliged to render Accounts.
Upon the whole, the hints above mentioned are sufficiently plain to be well understood: The very Idea of Government comprehends unavoidably a power of making Laws—a power to enforce an obedience to those Laws—and a power to settle and determine all disputes, controversies and Causes, the decision of which requires the sanction of those Laws. In other words, a legislative, an executive and a judicial power are essentially necessary to Government: The disposal of these powers, their definition, the judicious applicaton of them to their peculiar department, and the necessary interference of perfect Barriers between the province of each, are to make up the substantial parts of the federal Constitution and shou’d now compose the important Business of the present Convention. I need not remark that it has always been deemed essential to Liberty, that in every Government these three great powers shou’d be lodged in the hands of different Bodies and be kept independant of each other. That a federal Government must exist is universally acknowledged: This was attempted by the Articles of Confederation, and at this time makes up the object in convention to which every hope is ardently pointed. If it exist, it must contain these three powers; and they must be vested in separate Hands, or our Liberties, so dearly purchased, must be set in danger. No apprehension, it is true, has been entertained of Congress, in whom all these powers have been awkwardly blended: but it is chiefly because their Authority has been hitherto so limitted and confined to a few particular heads as to make them so little an Object of terror that they are every where treated with indifference. It is submitted to the Wisdom of those conspicuous Characters, who are engaged in this arduous Inquiry, whether this address contain such out-lines as deserve their Attention, and whether the express description and separation of the legislative, the executive and the judicial Departments are not essential to a perfect form of Government.