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IN some treaties, indeed, it is expressly stipulated, that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which is in general understood to dissolve all subsisting treaties. But are there any exceptions of this sort to the Articles of Confederation? So far from it, that there is not even an express stipulation that force shall be used to compel an offending member of the Union to discharge its duty. He [Mr. Madison] observed, that the violations of the Federal Articles had been numerous and notorious. Among the most notorious was an act of New Jersey herself; by which she expressly refused to comply with a constitutional requisition of Congress, and yielded no further to the expostulations of their deputies, than barely to rescind her vote of refusal, without passing any positive act of compliance. He did not wish to draw any rigid inferences from these observations. He thought it proper, however, that the true nature of the existing Confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands.
Proceeding to the consideration of Mr. Patterson's plan, he stated the object of a proper plan to be two-fold-first, to preserve the Union; secondly, to provide a government that will remedy the evils felt by the states, both in their united and individual capacities. Examine Mr. Patterson's plan, and say whether it promises satisfaction in these respects.
1. Will it prevent the violations of the law of nations and of treaties, which, if not prevented, must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congress contain complaints already, from almost every nation with which treaties have been formed. Hitherto, indulgence has been shown to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities; it ought, therefore, to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrolled as ever.
2. Will it prevent encroachments on the Federal authority? A tendency to such encroachments has been sufficiently exemplified among ourselves, as well as in every other confederated republic, ancient and modern. By the Federal Articles, transactions with the Indians appertain to Congress, yet in several instances the States have entered into treaties and wars with them. In like manner, no two or more States can form among themselves any treaties, &c., without the consent of Congress; yet Virginia and Maryland, in one instance-Pennsylvania and New Jersey, in another-have entered into compacts without previous application or subsequent apology. No State, again, can of right raise troops in time of peace without the like consent. Of all cases of the league, this seems to require the most scrupulous observance. Has not Massachusetts, notwithstanding, (the most powerful member of the Union,) already raised a body of troops? Is she not now augmenting them, without having even deigned to apprise Congress of her intentions? In fine, have we not seen the public land dealt out to Connecticut to bribe her acquiescence in the decree constitutionally awarded against her claim on the territory of Pennsylvania?-for no other possible motive can account for the policy of Congress in that measure. If we recur to the examples of other confederacies, we shall find in all of them the same tendency of the parts to encroach on the authority of the whole.
He then reviewed the Amphictyonic and Achaean confederacies, among the ancients, and the Helvetic, Germanic, and Belgic, among the moderns; tracing their analogy to the United States in the Constitution and extent of their Federal authorities; in the tendency of the particular members to usurp on these authorities, and to bring confusion and ruin on the whole. He observed, that the plan of Mr. Patterson, besides omitting a control over the States, as a general defense of the Federal prerogatives, was particularly defective in two of its provisions. In the first place, its ratification was not to be by the people at large, but by the legislatures. It could not, therefore, render the acts of Congress, in pursuance of their powers, even legally paramount to the acts of the States. And, in the second place, it gave to the Federal tribunal an appellate jurisdiction only even in the criminal cases enumerated. The necessity of any such provision supposed a danger of undue acquittal in the State tribunals: of what avail would an appellate tribunal be after an acquittal? Besides, in most, if not all, of the States, the executives have, by their respective constitutions, the right of pardoning: how could this be taken from them by a legislative ratification only?
3. Will it prevent trespasses of the States on each other? Of these, enough has been already seen. He instanced acts of Virginia and Maryland, which gave a preference to their own citizens in cases where the citizens of other States are entitled to equality of privileges by the Articles of Confederation. He considered the emissions of paper money, and other kindred measures, as also aggressions. The States, relatively to one another, being each of them either debtor or creditor, the creditor States must suffer unjustly from every emission by the debtor States.
We have seen retaliating acts on the subject, which threatened danger, not to the harmony only, but the tranquillity of the Union. The plan of Mr. Patterson, not giving even a negative on the acts of the States left them as much at liberty as ever to execute their unrighteous projects against each other.
4. Will it secure the internal tranquillity of the States themselves? The insurrections in Massachusetts admonished all the States of the danger to which they were exposed. Yet the plan of Mr. Patterson contained no provisions for supplying the defect of the Confederation on this point. According to the republican theory, indeed, right and power, being both vested in the majority, are held to be synonymous. According to fact and experience, a minority may, in an appeal to force, be an overmatch for the majority;-in the first place, if the minority happen to include all such as possess the skill and habits of military life, with such as possess the great pecuniary resources, one-third may conquer the remaining two-thirds; in the second place, one-third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, and who, for obvious reasons, must be more ready to join the standard of sedition than that of established government; and, in the third place, where slavery exists, the republican theory becomes still more fallacious.
5. Will it secure a good internal legislation and administration to the particular States? In developing the evils which vitiate the political system of the United States, it is proper to take into view those which prevail within the States individually, as well as those which affect them collectively; since the former indirectly affect the whole, and there is great reason to believe that the pressure of them had a full share in the motives which produced the present Convention.
Under this head he enumerated and animadverted on-first, the multiplicity of the laws passed by the several States; secondly, the mutability of their laws; thirdly, the injustice of them; and, fourthly, the impotence of them;-observing that Mr. Patterson's plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the community.
6. Will it secure the Union against the influence of foreign powers over its members? He pretended not to say that any such influence had yet been tried; but it was naturally to be expected that occasions would produce it. As lessons which claimed particular attention, he cited the intrigues practiced among the Amphictyonic confederates, first by the kings of Persia, and afterwards, fatally, by Philip of Macedon; among the Achaeans, first by Macedon, and afterwards, no less fatally, by Rome; among the Swiss, by Austria, France, and the lesser neighboring Powers; among the members of the Germanic body, by France, England, Spain and Russia; and in the Belgic Republic, by all the great neighboring Powers. The plan of Mr. Patterson, not giving to the general councils any negative on the will of the particular States, left the door open for the like pernicious machinations among ourselves.
7. He begged the smaller States, which were most attached to Mr. Patterson's plan, to consider the situation in which it would leave them. In the first place, they would continue to bear the whole expense of maintaining their delegates in Congress. It ought not to be said that, if they were willing to bear this burden, no others had a right to complain. As far as it led the smaller States to forbear keeping up a representation, by which the public business was delayed, it was evidently a matter of common concern An examination of the minutes of Congress would satisfy every one, that the public business had been frequently delayed by this cause; and that the States most frequently unrepresented in Congress were not the larger States. He reminded the Convention of another consequence of leaving on a small State the burden of maintaining a representation in Congress. During a considerable period of the war, one of the representatives of Delaware, in whom alone, before the signing of the Confederation, the entire vote of that State, and after that event one half of its vote, frequently resided, was a citizen and resident of Pennsylvania, and held an office in his own State incompatible with an appointment from it to Congress. During another period, the same State was represented by three delegates, two of whom were citizens of Pennsylvania, and the third a citizen of New Jersey. These expedients must have been intended to avoid the burden of supporting delegates from their own State. But whatever might have been the cause, was not, in effect, the vote of one State doubled, and the influence of another increased by it? In the second place, the coercion on which the efficacy of the plan depends can never be exerted but on themselves. The larger States will be impregnable, the smaller only can feel the vengeance of it. He illustrated the position by the history of the Amphictyonic confederates; and the ban of the German empire. It was the cobweb which could entangle the weak, but would be the sport of the strong.
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