University of Virginia Library

TO JOHN TYLER.[149]

In your speech of Februray 6th, 1833, you say: "He (Edmund
Randolph) proposed (in the Federal Convention of
1787) a Supreme National Government, with a Supreme
Executive, a Supreme Legislature, and a Supreme Judiciary,
and a power in Congress to veto State laws. Mr. Madison
I believe, Sir, was also an advocate of this plan of govt. If
I run into error on this point, I can easily be put right. The
design of this plan, it is obvious, was to render the States
nothing more than the provinces of a great Government, to
rear upon the ruins of the old Confederacy a Consolidated
Government, one and indivisible."

I readily do you the justice to believe that it was far from
your intention to do injustice to the Virginia Deputies to the
Convention of 1787. But it is not the less certain that it has
been done to all of them, and particularly to Mr. Edmund
Randolph.

The resolutions proposed by him, were the result of a Consultation
among the Deputies, the whole number, seven, being
present. The part which Virga. had borne in bringg abt. the
Convention, suggested the Idea that some such initiative step
might be expected from their Deputation; and Mr. Randolph
was designated for the task. It was perfectly understood that
the Propositions committed no one to their precise tenor or
form; and that the members of the Deputation wd. be as free
in discussing and shaping them as the other members of the
Convention. Mr. R. was made the organ on the occasion,
being then the Governor of the State, of distinguished talents,

and in the habit of public Speaking. Genl. Washington, tho'
at the head of the list was, for obvious reasons disinclined to
take the lead. It was also foreseen that he would be immediately
called to the presiding station.

Now what was the plan sketched in the Propositions?

They proposed that "the Articles of Confederation shd. be
so corrected and enlarged as to accomplish the objects of their
Institution, namely common defence, security of liberty, and
general welfare;" (the words of the Confederation.)

That a National Legislature, a National Executive and a
National Judiciary should be established. (this organization
of Departments the same as in the adopted Constitution.)

"That the right of suffrage in the Legislature shd. be (not
equal among the States as in the Confederation, but) proportioned
to quotas of contribution or numbers of free inhabitants
as might seem best in different cases: (the same corresponding
in principle with the mixed rule adopted.)

"That it should consist of two branches; the first elected by
the people of the several States, the second by the first, of a
number nominated by the State Legislatures." (a mode of
forming a Senate regarded as more just to the large States,
than the equality which was yielded to the Small States by the
compromise with them, but not material in any other view.
In reference to the practicable equilibrium between the
General & the State authorities, the comparative influence of
the two modes will depend on the question whether the small
States will incline most to the former or to the latter scale).

"That a National Executive, with a Council of Revision consisting
of a number of the Judiciary, (wc. Mr. Jefferson would
have approved) and a qualified negative on the laws, be instituted,
to be chosen by the Legislature for the term of—years,
to be ineligible a second time, and with a compensation to be
neither increased nor diminished so as to affect the existing
magistracy. (there is nothing in this Ex modification
materially different in its Constitutional bearing from that
finally adopted in the Constitution of the U.S.)

That a National Judiciary be established, consisting of a Supreme
appellate and inferior Tribunals, to hold their offices
during good behavior, and with compensations not to be
increased or diminished, so as to affect persons in office.
(there can be nothing here subjecting it to unfavourable comparison
with the article in the Constitution existing.)

"That provision ought to be made for the admission of new
States lawfully arising within the limits of the U. S., wth.
the consent of a number of votes in the Natl. Legislature less
than the whole." (This is not at variance wth. the existing
provisions.)

"That a Republican Govt. ought, to be guarantied by
the U. S. to each State. (this is among the existing provisions.)

"That provision ought to be made for amending the articles
of Union, without requiring the Assent of the National Legislature.
(this is done in the Constn.)

"That the Legisl. Ex. & Judiciary powers of the several
States ought to be bound by oath to support the articles of
Union (this was provided with the emphatic addition of
"anything in the Constn. or laws of the States notwithstanding.)

"That the act of the Convention, after the approbation of
the (then) Cong. to be submitted to an assembly or assemblies
of Representatives recommended by the several Legislatures
to be expressly chosen by the people to consider & decide
thereon (This was the course pursued)

So much for the structure of the Govt. as proposed by
Mr. Randolph, & for a few miscellaneous provisions. When
compared with the Constn. as it stands what is there of a
consolidating aspect that can be offensive to those who
applaud approve or are satisfied with the Const:

Let it next be seen what were the powers proposed to
be lodged in the Govt as distributed among its several
Departments.

The Legislature, each branch possessing a right to originate
acts, was to enjoy, 1, the legislative rights vested in the Congs

of the Confederation. (This must be free from objection,
especially as the powers of that description were left to the
selection of the Convention)

2. Cases to which the several States, would be incompetent
or, in which the harmony of the U. S. might be intercepted
by individual Legislation. (It cannot be supposed that these
descriptive phrases were to be left in their indefinite extent
to Legislative discretion. A selection & definition of the cases
embraced by them was to be the task of the Convention. If
there could be any doubt that this was intended & so understood
by the Convention, it would be removed by the course
of proceeding on them as recorded, in its Journal. Many of the
propositions made in the Convention, fall within this remark;
being, as is not unusual general in their phrase, but, if adopted
to be reduced to their proper shape & specification.)

3. to negative all laws passed by the Several States contravening,
in the opinion of the National Legislature, the Articles
of Union, or any Treaty subsisting under their Authority.
(The necessity of some constitutional and effective provision
guarding the Constn. & laws of the Union agst. violations
of them by the laws of the States, was felt and taken for
granted by all from the commencement, to the conclusion of
the work performed by the Convention. Every vote, in the
Journal involving the opinion, proves a unanimity among
the Deputations on this point. A voluntary & unvaried
concurrence of so many (then 13 with a prospect of continued
increase) distinct & independent Authorities, in expounding
& acting on a rule of Conduct, which must be the same for all,
or in force in none, was a calculation forbidden by a knowledge
of human nature, and especially so by the experience of the
Confederacy, the defects of which were to be supplied by the
Convention.

With this view of the subject, the only question was the
mode of controul on the Individual Legislatures. This might
be either preventive or corrective; the former by a negative
on the State laws; the latter by a Legislative repeal by a judicial

supersedeas, or by an administrative arrest of them. The
preventive mode as the best if equally practicable with the corrective,
was brought by Mr. R. to the consideration of the
Convention. It was tho' not a little favored, as appears by
the votes in the Journal finally abandoned, as not reducible to
practice. Had the negative been assigned to the Senatorial
branch of the Govt. representing the State Legislatures, thus
giving to the whole of these a controul over each, the expedient
would probably have been still more favorably recd. tho'
even in that form, subject to insuperable objections, in the
distance of many of the State Legislatures, and the multiplicity
of the laws of each.

Of the corrective modes, a repeal by the National Legislature
was pregnant with inconveniences rendering it inadmissible.

The only remaining safeguard to the Constitution and laws
of the Union agst. the encroachment of its members, and anarchy
among themselves is that which was adopted, in the
Declaration that the Constitution laws & Treaties of the U.
S. should be the supreme law of the Land, and as such, be
obligatory on the authorities of the States as well as those of
the U. S.

The last of the proposed Legislative Powers was "to call
forth the force of the Union agst. any member failing to fulfil
its duty under the articles of Union."

The evident object of this provision was not to enlarge the
powers of the proposed Govt. but to secure their efficiency.
It was doubtless suggested by the inefficiency of the Confederate
system, from the want of such a sanction; none such being
expressed in its Articles; and if as Mr. Jefferson[150] argued,
necessarily implied, having never been actually employed.
The proposition as offered by Mr. R. was in general terms.
It might have been taken into Consideration, as a substitute
for, or as a supplement to the ordinary mode of enforcing
laws by Civil process; or it might have been referred to cases

of territorial or other controversies between States and a
refusal of the defeated party to abide by the decision; leaving
the alternative of a Coercive interposition by the Govt. of the
Union, or a war between its members, and within its bowels.
Neither of these readings nor any other, which the language
wd. bear, could countenance a just charge on the deputation
or on Mr. Randolph, of contemplating a Consolidated Govt.
with unlimited powers.

The Executive powers do not cover more ground, than those
inserted by the Convention to whose discretion the task of
enumerating them was submitted. The proposed association
with the Executive of a Council of Revision, could not give a
consolidating feature to the plan.

The Judicial power in the Plan is more limited than the
Jurisdiction described in the Const., with the exception of
cases of "impeachment of any National officer," and questions
which involve the National peace & harmony.

The trial of Impeach is known to be one of the most
difficult of Constl. arrangemts. The reference of it to the
Judicial Dept. may be presumed to have been suggested
by the example in the Constitution of Virga. The option
seemed to lie between that & the other Depts. of the Govt.
No example of an organization excluding all the Departs.
presenting itself. Whether the Judil. mode proposed, was
preferable to that inserted in the Const: or not, the difference
cannot affect the question of a Consolidating aspect or
tendency.

By questions involving "the Natl. peace and harmony,"
no one can suppose more was meant than might be specified
by the Convention as proper to be referred to the Judiciary,
either by the Constn. or the Constl. Authority of the Legislature.
They could be no rule, in that latitude, to a court,
nor even to a Legislature with limited powers.

That the Convention understood the entire Resolutions of
Mr. R to be a mere sketch in which omitted details were to
be supplied and the general terms and phrases to be reduced to

their proper details, is demonstrated by the use made of them
in the Convention. They were taken up & referred to a
Come. of the whole in that sense; discussed one by one;
referred occasionally to special Coms. to Comes. of detail on
special points, at length to a Come. to digest & report the
draught of a Constn. and finally to a Come. of arrangement
and diction.

On this review of the whole subject, candour discovers no
ground for the charge, that the Resolns. contemplated a
Govt. materially different from or more national than that in
which they terminated, and certainly no ground for the
charge of consolidating views in those from whom the Resolns.
proceeded.

What then is the ground on which the charge rests? It
cd. not be on a plea that the plan of Mr. R. gave unlimited
powers to the proposed Govert for the plan expressly aimed at
a specification, & of course a limitation of the powers.

It cd. not be on the supremacy of the general Authority
over the separate authorities, for that supremacy as already
noticed, is more fully & emphatically established by
the text of the Constitution.

It c. not be on the proposed ratification by the people instead
of the States for such is the ratification on wch. the
Constn. is founded.

The charge must rest on the term National prefixed to the
organized Depts. in the propositions of Mr. R. yet how easy
it is to acct. for the use of the term witht. taking it in a consolidating
sense.

In the 1st. place. It contradistinguished the proposed
Govt. from the Confederacy wch. it was to supersede.

2. As the System was to be a new & compound one, a nondescript
without a technical appellation for it, the term "national"
was very naturally suggested by its national features:
1. in being estab. not by the authority of State Legs. but
by the original authd. of the people. 2. in its organization
into Legisl. Ex. & Judl. Depart, and 3. in its action on the

people of the States immediately, and not on the Govts. of
the States, as in a Confederacy.

But what alone would justify & acct. for the application of the
term National to the proposed Govt. is that it wd. possess, exclusively
all the attributes of a Natl. Govt. in its relations with
other Nations, including the most essential one, of regulating
foreign Commerce, with the effective means of fulfilling the
oblig. & responsiby. of the U. S. to other Nations. Hence it was
that the term Natl. was at once so readily applied to the new
Govt and that it has become so universal & familiar. It
may safely be affirmed that the same w. have been the case,
whatever name might have been given to it by the props. of
Mr. R. or by the Convention. A Govt. which alone is known
& acknowledged by all foreign nations, and alone charged
with the international relations, could not fail to be deemed
& called at home, a Natl. Govt.

After all, in discussing & expounding the character & import
of a Constn. let candor decide whether it be not more
reasonable & just to interpret the name or title by facts
on the face of it, than to torture the facts by a bed of Procrustes
into a fitness to the title.

I must leave it to yourself to judge whether this exposition
of the Resolns. in question be not sufficiently reasonable to
protect them from the imputation of a consolidating tendency,
and still more, the Virga. Deputies from having that for their
object.

With regard to Mr. R. particularly, is not some respect
due to his public letter to the Speaker of ye. H. of D. in which
he gives for his refusal to sign the Constitn. reasons irreconcilable
with the supposition that he cd. have proposed the
Resolns. in a meaning charged on them? Of Col Mason who
also refused, it may be inferred from his avowed reasons, that
he cd. not have acquiesced in the propositions if understood
or intended to effect a Conso Gov.

So much use has been made of Judge Yates's minutes of the
debates in the Convention, that I must be allowed to remark

that they abound in inaccuracies, and are not free from gross
errors some of which do much injustice to the arguments
& opinions of particular members. All this may be explained
without a charge of wilful misrepresentation, by the very
desultory manner in which his notes appear to have been taken
his ear catching particular expressions & losing qualifications
of them; and by prejudices giving to his mind, all the bias
which an honest one could feel. He & his colleague were the
Representatives of the dominant party in N. York, which
was opposed to the Convention & the object of it, which was
averse to any essential change in the Articles of Confederation,
which had inflexibly refused to grant even a duty of
5 per ct on imports for the urgent debts of the Revolution;
which was availing itself of the peculiar situation of New
York, for taxing the consumption of her neighbours, and
which foresaw that a primary aim of the Convention wd. be to
transfer from the States to the common authority, the entire
regulation of foreign commerce. Such were the feelings of the
two Deputies, that on finding the Convention bent on a radical
reform of the Federal system, they left it in the midst of its
discussions and before the opinions & views of many of the
members were drawn out to their final shape & practical
application.

Without impeaching the integrity of Luther Martin, it may
be observed of him also, that his report of the proceedings of
the Convention during his stay in it, shews, by its colourings
that his feelings were but too much mingled with his statements
and inferences. There is good ground for believing that
Mr. M. himself became sensible of this and made no secret of
his regret, that in his address to the Legislature of his State,
he had been betrayed by the irritated state of his mind, into
a picture that might do injustice both to the Body and to
particular members.