Part 23

The fourth provides, “that the assembly of the state of New York shall consist of at least seventy members, to be annually chosen in the several counties in certain proportions.” The 5th, 12th and 16th, declare that a census shall be taken every seven years, to regulate the augmentation of the number seventy, so as not to exceed three hundred. Here seventy members are divided among the several counties, and consequently into at least as many poles and sets of members to be annually chosen. If this is contrasted with the constitution for the federal government—the constitutional assembly or house of representatives will be found to consist of sixty-five members divided among thirteen states, to be chosen every second year. Six for the state of New York; not distributed among the counties, but by all the counties. And, although “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof,” yet, as it provides that “Congress may at any time by law, make or alter those regulations, except as to places of chusing senators”—the power in the state government to prescribe rules in those cases will be superseded by the executive of the general government, perhaps to the great inconvenience of the people.

FROM THE VITH TO THE XIITH.

The sixth paragraph recites that an opinion hath long prevailed among divers of the good people of this state that the voting at the election by ballot would tend more to preserve the liberty and equal freedom of the people than voting viva voce; to the end, therefore, that a fair experiment be made which of these two methods of voting is to be preferred, it declares that after the war elections shall be by ballot.

The seventh and eighth regulate the freeholds, and what property shall entitle a man to vote; the ninth, the mode of conducting business in the assembly, and their privileges; the tenth, eleventh, and twelfth, the number of the senate, and how and by whom they shall be elected.

As these clauses regulate the mode of elections and qualifications of the voters of senate and assembly, a relation of what gave rise to the provisions for voting by ballot and that of the value of the freehold, will help to unravel what otherwise may appear mysterious.

In respect to the first it may be necessary to observe that under the colonial government there existed violent parties, not known by the name of whig or tory—republicans and aristocrats. Those who were in the employments of government, or the _ins_, were for extending the prerogative of the crown, while the _outs_ were checks to it. Many of the leaders on both sides were under strong expectations that sooner or later that branch of colonial government called the king’s council would be erected into a hereditary house of lords. The _ins_ being nearest to the disposition of the offices of honor and profit, and in the way of obtaining patents for vacant lands, and being from time to time joined by other crown officers and dependents, who flocked to and settled in this colony since the year 1763, had the means of making use of undue influence to retain their situations, which made the _outs_ at last dispair of ever having a turn, unless the elections were by ballot. This opinion was propagated in every part of the colony before and at the time of the revolution, and so strongly did it operate upon the committee that were ordered to consider of and report the constitution, that at one time they had the whole system interwoven in the draft; but either because it would have made it too lengthy, or that one of the parties were then reduced, and not likely to rise again into importance, about the time the draft was reported, it was struck out and was left by the constitution to the legislature to decide, as experience on the exercise of both principles should suggest.

SYDNEY.

Sydney, II.

The New York Journal, (Number 2321)

SATURDAY, JUNE 14, 1788.

For the Daily Patriotic Register.

TO THE CITIZENS OF THE STATE OF NEW YORK.

(Concluded from yesterday’s paper.)

As to the value of the freeholds, there has been great diversity of opinions, for notwithstanding all agreed that the rights and liberties of a country were ever in danger from the rich and poor, and their safety in the middle sort or yeomanry of the country, still the difficulty occurred in establishing the mean.

While the convention, in 1776, was setting at Harlem, the outlines of a constitution were handed about, to try, it was supposed, the temper of the members, in which it was proposed to have a governor, lieutenant governor, senate, and assembly; the qualification of the governor, lieutenant governor, and senate, to be that each should possess real estate to the value of 10,000 pounds, and to be elected by freeholders possessing freeholds to the value of 1,000 pounds. Although this was not attended with bad effects, yet the qualifications of the electors gave rise to various arguments, and, among others, that as taxation and representation ought to go together, so the right of electing shall be in proportion to the value of each man’s estate. To exemplify this, a man of £100 estate had one vote; a man of £1000 should have ten, and a man of ten thousand pounds a hundred, and so on in the same ratio. Others on the contrary supposed that there ought to be no other criterion than the age of twenty-one, a citizen born and resident in this country; out of the two extremes was produced the present system of election and qualification, both admitted to be as secure and consistent rights as any that have been contrived.

It is apprehended, from the duplicity in the wording of 1st art., 4th sec., that seemingly to leave in the power of the respective legislatures to regulate the elections, and still, that Congress may at any time by law make or alter such regulations; and the undesigned wording of the sixth article, that the constitution and laws of the United States which shall be made in pursuance thereof shall be the law of the land, anything in the constitution or laws of any State to the contrary notwithstanding, will render the whole system ineffectual, if not nugatory, and a new system as destructive to the liberties of the citizens as that of the ratio of voices to the ratio of property introduced. Besides being liable to have the whole State erected into one district, and consequently may give rise to the inconveniences I mentioned before.

VII, SEC. 6; VIII, SEC. 6; IX, SEC. 6; X, SECTION 6; XI, SEC. 6; XII, SEC. 2, 6; XVI, SEC. 6; XIII, XXXV, XLI.

By the 13th paragraph “no member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to the subjects of the State by this constitution, unless by the law of the land, or judgment of its peers.”

The 35th adopts, under certain exceptions and modifications, the common law of England, the statute law of England and Great Britain, and the acts of the legislature of the colony, which together formed the law on the 19th of April, 1775.

The 41st provides that the trial by jury remain inviolate forever; that no acts of attainder shall be passed by the legislature of this State for crimes other than those committed before the termination of the present war. And that the legislature shall at no time hereafter institute any new courts but such as shall proceed according to the course of the common law.

There can be no doubt that if the new government be adopted in all its latitude, every one of these paragraphs will become a dead letter: nor will it solve any difficulties, if the United States guarantee “to every state in the union a republican form of government;” we may be allowed the form and not the substance, and that it was so intended will appear from the changing the word _constitution_ to the word _form_ and the omission of the words, _and its existing laws_. And I do not even think it uncharitable to suppose that it was designedly done; but whether it was so or not, by leaving out these words the jurisprudence of each state is left to the mercy of the new government. By 1st art., 8th sec., 1st clause, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.”

By the 9th clause of the same section, “To constitute tribunals inferior to the court.”

By the 18th clause, “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 thereof.”

The 3d art., 1st sec., “The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.”

By sec. 2nd, “The judicial power shall extend to all cases in law and equity.” To have in various instances an original and exclusive, in others a concurrent jurisdiction, and the supreme court in many cases an appellate jurisdiction, both as to law and fact. It provides, indeed, that the trial for crimes shall be by jury, but has left the trial in civil matters to the mercy of construction and their own legislative sovereign will and pleasure.

By the 3d art., 3d sec., “The Congress shall have power to declare the punishment of treason, but no attainder shall work a corruption of blood or forfeiture, except during the life of the person attainted.” By 1st art., 9th sec., 3d clause, “No bill of attainder or ex post facto law shall be passed.”

XVII, XVIII, XIX, XX, XXI, XXIII, XL.

The 17th orders “That the supreme executive power and authority of this State shall be vested in a governor.” By the 18th he is commander-in-chief of the militia and admiral of the navy of the State; may grant pardons to all persons convicted of crimes; he may suspend the execution of the sentence in treason or murder.

By the 19th paragraph he is to see that the laws and resolutions of the legislature be faithfully executed.

By the 27th he is president of the council of appointment, and has a casting vote and the commissioning of all officers.

The 20th and 21st paragraphs give the lieutenant-governor, on the death, resignation, removal from office, or impeachment of the governor, all the powers of a governor.

The 40th paragraph orders that the militia at all times, both in peace and war, shall be armed and disciplined, and kept in readiness; in what manner the Quakers shall be excused; and that a magazine of warlike stores be forever kept at the expence of the State, and by act of the legislature, established, maintained, and continued in every county in the State.

Whoever considers the following powers vested in the government, and compares them with the above, must readily perceive they are either all enervated or annihilated.

By the 1st art., 8th sec., 15th, 16th and 17th clauses, Congress will be empowered to call forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia, for the governing such part of them as may be employed in the service of the United States, and for the erection of forts, magazines, etc.

And by the 2nd art., 2d sec., “The president shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into actual service of the United States, except in cases of impeachment.”

And by the 6th art., “The members of the several state legislatures, and all the executive and judicial officers; both of the United States, and of the several states, shall be bound by oath or affirmation to support the constitution.” Can this oath be taken by those who have already taken one under the constitution of this state?

XVIII, SEC. 17; XIX, SEC. 17; XX SEC. 17; XXI, SEC. 17; XXIII, SEC. 17; XXII TO XXX INCLUSIVE.

These paragraphs regulate the election, appointment, construction and duration of all the state, county and district officers, including the delegates to Congress, and how they severally are to be created and commissioned.

The 22d directs that the treasurer shall be appointed by act of the legislature to originate with the assembly. The 23d establishes a council to appoint the officers.

The 24th directs that the military officers shall be, during the pleasure of the council, the chancellor, judges of the supreme court, the first judge in every county until the age of 60.

Twenty-five and 28, which offices are incompatible, and the tenure and duration of such officers.

Twenty-six, that sheriffs and coroners be annually appointed, and shall not continue more than four years.

Twenty-seven, that the officers of the court be appointed by the respective courts, except the attorneys, by the first judge of every court.

Twenty-nine, provides that town clerks, supervisors, assessors, constables and collectors, and all other officers heretofore elegible by the people, shall always continue to be so elegible.

Thirty, directs the mode how the delegates to represent this state in the general Congress of the United States shall be elected.

I apprehend that the paragraphs aforesaid will be compleatly rendered unoperative by the following articles in the new constitution:

Second article, second section, second clause, the president “shall have power, and by and with the advice and consent of the Senate, shall appoint embassadors, other public ministers and consuls, judges of the supreme court, and all officers of the United States where appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the power of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments.” By the 1st art., 8 section, 9, 18 clauses, Congress have power “to constitute tribunals inferior to the supreme court, 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 officer thereof.”

By the third article, 2d section, there is an extensive federal power as above-mentioned.

By the 2d article, 2d section, the president “shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.”

From these powers lodged in Congress and the powers vested in the states, it is clear that there must be a government within a government, two legislative, executive and judicial powers. The power of raising an army in time of peace, and to command the militia, will give the president ample means to enforce the Supreme laws of the land.

XXIII, SEC. 21; XXIV, SEC. 21; XXV, SEC. 21; XXVI, SEC. 21; XXVII, SEC. 21; XXVIII, SEC. 21; XXIX, SEC. 21; XXX, SEC. 21; XXXI, SEC. 2; XXXII, XXXIII, XXXIV.

The 32d paragraph orders, “That a court shall be instituted for the trial of impeachments and the correction of errors under the regulations which shall be established by the legislature, and to consist of the president of the senate for the time being, and the senators, chancellors and judges of the supreme court.”

The 33d vests the power of impeaching all officers of the state for mal and corrupt practice in the representatives of the people in assembly.

The 34th allows the parties impeached or indicted for crimes and misdemeanors to have counsel.

This system is undermined and rendered nugatory by 1st art., 6th and 7th clauses, where the senate in the new constitution, have the trial and judgment on all impeachments.

By 3d art., 2d sec, 3d clause, the trial of all crimes is regulated.

By the 3d art., 3d sec., it is defined what shall be treason, the proof required, the punishment, and how the judgment in attainder shall operate.

XXXIII, SEC. 32; XXXIV, SEC. 32; XXXV, SEC. 13; XXXVII, SEC. 1; XXXVIII, XXXIX.

The 38th paragraph provides “that the free exercise and enjoyment of religious procession and worship, without discrimination or preference, shall forever hereafter be allowed within this State to all mankind, provided that the liberty of conscience hereby granted shall not excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the State.”

The 39th provides that “no minister of the gospel, or priest of any denomination whatsoever, shall at any time hereafter, under any pretence or description whatever, be eligible to or capable of holding any civil or military office or place within this state.”

The first of those articles protects us from persecution in religious matters. The other excludes the clergy from enjoying any office, civil or military. Two provisions passed by in silence by the framers of the new constitution; and although possibly the leaders in both have been equally averse to a democratic system, and have had the same object, the ruin of state government, in view.

XLII.

This paragraph provides “that it shall be in the discretion of the legislature to naturalize all such persons and in such manner as they shall think proper.”

The 1st art., 8 sec., 4th clause, give to the new government power to establish a uniform rule of naturalization.

And by the 4th art., 2d sec., “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states,” whereby the clause is rendered entirely nugatory.

From this contrast it appears that the general government, when compleatly organized, will absorb all those powers of the state which the framers of its constitution had declared should be only exercised by the representatives of the people of the state; that the burthens and expence of supporting a state establishment will be perpetuated; but its operations to ensure or contribute to any essential measures promotive of the happiness of the people may be totally prostrated, the general government arrogating to itself the right of interfering in the most minute objects of internal police, and the most trifling domestic concerns of every state, by possessing a power of passing laws “to provide for the general welfare of the United States,” which may affect life, liberty and property in every modification they may think expedient, unchecked by cautionary reservations, and unrestrained by a declaration of any of those rights which the wisdom and prudence of America in the year 1776 held ought to be at all events protected from violation.

In a word, the new constitution will prove finally to dissolve all the power of the several state legislatures, and destroy the rights and liberties of the people; for the power of the first will be all in all, and of the latter a mere shadow and form without substance, and if adopted we may (in imitation of the Carthagenians) say, Delenda vit Americæ.

SYDNEY.

CURSORY REMARKS BY HUGH HENRY BRACKENRIDGE.

Printed In The American Museum, April, 1788.

Note.

This article first appeared in _The Pittsburgh Gazette_, but as I have not been able to find a file of that paper, I have been compelled to reprint it from _The American Museum_. It was anonymous, but its authorship is settled by its republication in Brackenridge’s “_Gazette Publications_,” printed in book form in 1806.

Cursory Remarks.

The American Museum, (Number 4)

APRIL, 1788.

It is not my intention to enter largely into a consideration of this plan of government, but to suggest some ideas in addition to, and of the same nature with, those already made, showing the imperfections and the danger of it.

The first thing that strikes a diligent observer, is the want of precaution with regard to the _sex_ of the president. Is it provided that he shall be of the male gender? The Salii, a tribe of the Burgundians, in the 11th century, excluded females from the sovereignty. Without a similar exclusion, what shall we think, if, in progress of time, we should come to have an _old woman_ at the head of our affairs? But what security have we that he shall be a _white man_? What would be the national disgrace if he should be elected from one of the southern states, and a _vile negro_ should come to rule over us? Treaties would then be formed with the tribes of Congo and Loango, instead of the civilized nations of Europe. But is there any security that he shall be a _freeman_? Who knows but the electors at a future period, in days of corruption, may pick up a man-servant, a convict perhaps, and give him the dominion? Is any care taken that he shall be of _perfect parts_? Shall we, in affairs of a civil nature, leave a door open to lame men, bastards, eunuchs, and the devil knows what?

A senate is the next great constituent part of the government; and yet there is not a word said with regard to the ancestry of any of them; whether they should be altogether Irish, or only Scots Irish. If any of them have been in the war of the White Boys, the Heart of Oak, or the like, they may overturn all authority, and make Shilelah the supreme law of the land.

The house of representatives is to be so large, that it can never be built. They may begin it, but it can never be finished. Ten miles square! Babylon itself, unless the suburbs are taken into view, was not of greater extent.

But what avails it to dwell on these things? The want of a _bill of rights_ is the great evil. There was no occasion for a bill of _wrongs_; for there will be wrongs enough. But oh! a _bill of rights_! What is the nature of a bill of rights? “It is a schedule or inventory of those powers which Congress do not possess.” But if it is clearly ascertained what powers they have, what need of a catalogue of those powers they have not? Ah! there is the mistake. A minister preaching, undertook, first, to show what was in his text; second, what was not in it. When it is specified what powers are given, why not also what powers are not given? A bill of rights is wanting, and all those things which are usually secured under it—

1. The _rights of conscience_ are swept away. The Confession of Faith, the Prayer-Book, the Manual and Pilgrim’s Progress are to go. The psalms of Watts, I am told, are the only thing of the kind that is to have any quarter at all.

2. The _liberty of the press_—that is gone at the first stroke. Not so much as an advertisement for a stray horse, or a runaway negro, can be put in any of the gazettes.

3. The _trial by jury_—that is knocked in the head, and all that worthy class of men, the lawyers, who live by haranguing and bending the juries, are demolished.