The constitutionalist — Exeter, N.H., 1810-06-18 00:00:00, page 1

To the People of the United Slates.
The constitution makes it the duty
of the President. " From time to
time to give to the Congress informs
tion of the state of the Union, and re
commend to their consideration such
measures, as he shall judge necessary
and expedient." ' This duty Mr. Jef
ferson was not very much in the habit
of performing. Or rather, like Mr.
Erskine, he departed from theLETfbR
of his “ instructions," to execute what
he chose to deem their spirit. The
gun-boat system, and the project of
paying money to France, as the prince
of peace, under the pretence of pur
chasing Florida from Spain, were
prominent instances of this policy.
Ills conduct, in both those cases, will
bo reviewed at large, and with ori^ ±
inal illustrations, in future numbers.
A better service to the interests of po
litical truth, and of course to those of
the “ GOOD OLD UNITED STATES,"
can hardly be rendered. The review
will involve a complete defence of the
" republican minority," or democratic
seceders from French policyland will
be followed by their acquitto of the
charge, that their conduct resulted
from impure motives, and was the con
sequence of disappointment.
The power to give information to
Congress, could not have been intend
ed to mean the same as to withhold
information from the people. This
construction would evidently be con
trary to the acknowledged theory of
the constitution. It can never be too
much insisted on, by real republicans,
that the constitution is the act of " We
the people," and that " to secure the
blessing of liberty to ourselves and
our posterity," forms the summit of
the climax descriptive of the objects
for which the constitution was ordain
ed. The political system of our coun
try was not calculated, by its authoß,
g^r the meridian of a region ruled by a
" dark divan." It was meant for a
realm of light and lustre. It was nev
er intended that the president should
be secluded in a " Seraglio," or shut
up with “ Cardinals in conclave." It
was not contemplated that a weak,
nerveless, but intriguing President,
or any other President with a small
majority of obsequious partisans in the
Legislature, should shroud that ven
erable body in darkness, and force
the minority to debate and act, week
after week, and almost month after
month, excluded from the light of
popular communication, and almost
from the light of Heaven. The fra
mers of the constitution, clearly, did
not contemplate any such thing as the
communication of secret " informa
tion" from the President to Congress,
or they would have provided for the
exercise of a power which they could
deem no less important than that given
to the two Houses of Congress to keep
a secret journal.
But the President, together with
the Senate, is vested with the power
of making treaties. Treaties require
secrecy. Yet the President has no
power to oblige even the Senate to
consider his communication as confi
dential. That body must exercise its
own judgment in such a case. And
the majority has no other right to
close the mouths of the minority than
what results from the authority given
by the constitution to both Houses to
" publish a journal, excepting such
parts as may in their judgment re
quire secrecy." Still a member of the
minority ought not, in any common
case, to publish any part of the pro
ceedings contrary to the will of the ma
jority. Mr. Mason was censured for
publishing the British Treaty, even by
some of his own party. But how far
do the rights of the President, in conse
quence of the treaty making power, go
to seal the lips of the members of the
House of Representatives ? Can he
communicate what papers he pleases to
that body ; and, by a nod from his
political Olympus, impose upon that
body the degrading necessity of being
silent as to their contents, at his own
discretion? Is the injunction to pro
ducea concealment of the substance or
the form of the documents, of both
substance and form, or of which, ex-
LETTERS UPON FRENCII
INFLUENCE.
Vol. I.]
FROM THE FREEMAN'S JOURNAL.
POLITICAL.
THE CONSTITUTIONALIST.
No. IIL
AGAINST THE INSIDIOUS WILES OF FOREIGN INFLUENCE, THE JEALOUSY OF A FREE PEOPLE, OUGHT TO BE'CONSTANTLY AWAKE Washington.
clusively of the other? Have the mem
bers no right to examine the subject
for themselves, and form an opinion
whether the papers communicated do
or do not belong to the proper sphere
of the treaty making power ? And if
the house neglects to make a decision
involving such an opinion, are individ
ual members precluded from it, as it
respects the regulation of their own
conduct? As it is a mere matter of
opinion how far the house of Represen
tatives possesses any constitutional
power of co-operating with the Presi
dent and Senate in the formation of
treaties, is not every member to judge
for himself how far he is bound to re
spect the opinion of the executive up
on that subject? Is it not the better
opinion, even upon the principles of
the democrats themselves, that the
House of Representatives have no pre
vious agency whatever in the matter
of treaties; but a power, and that to
be exercised in extreme cases only, of
checking the President and Senate,
when they make treaties destructive
to the state, by refusing to make the
appropriations necessary to carry such
treaties into effect? And if this be cor
rect, what power has the President to
communicate to the House documents
respecting a treaty contemplated or
commenced, and what right has the
House to act upon them in that char
acter r If such powers and rights exist,
are they unlimited in duration as well
as in extent ? Are they to operate up
on particular cases, not only in the
present, but through every future age ?
Some of these, as Dr. Franklin said
to the House of Lords, are deep ques
tions. All of them are momentous.
It would be absurd to contend that the
right of imposing secrecy upon a mem
ber of Congress ceases to operate upon
that member, when he ceases to be a
member. In that case, it would only
be necessary for a member to resign
his seat, to become entitled to the priv.
ilege of publishing the whole of the se
cret journals of the body to which he
belonged. No. Let reasonable con
structions be made in all doubtful cases.
So far as the right to impose the in
junction of secrecy is fairly warrant
ed by the constitution, it must be ad
mitted that the duration of the obli
gation resulting from the exercise of
that right, must depend upon the
pleasure of the body by whom it is
thus constitutionally exercised. And
it is certain that each House of Con
gress does possess the right of keep
ing a secret journal of its proceedings.
Its power to conceal political docu
ments, relative to the " common de
fence and general welfare," is quite
another thing. Documents, especial
ly executive ones, are not regularly a
part of the journal. When printed
for the use of the members, they are
printed in distinct sheets, unconnected
with the journal, and never considered
as a part of it, not considered even as
appendices to it. If the President
communicates papers professedly rela
ting to the intended origination of a
treaty, which papers are not entered
on the secret journal, wlrat have they
todo with the constitutional power of
the House to keep a secret of its pro
ceedings ? What natural connection
have they with the secret journal rath
er than with the public one ? How can
they be considered as " proceedings"
of the House at all? How, indeed, can
the House proceed to act constitution
ally upon them? Did the democrats
ever pretend, even in the days of the
famous British Treaty, that the House
of Representatives could claim a right
of co-operating with the President and
Senate in the origination of a treaty,
especially a treaty, totally unconnect
ed with the legislative power to regu
late commerce ; Or, if the House could
not claim the right, that the President
could communicate it to them ?
From this view of the subject it ap
pears easy to establish, most unan
swerably and conclusively, that the
President possesses NO CONSTITUTION
AL power, in any case whatever, to
impose any injunction of secrecy upon
the members of the House of Repre
sentatives.
To the People of thd@Tnited States.
' Having established the point that
the President of the United States has
no constitutional right to impose an
injunction of secrecy iipon the two
Houses of Congress, or either of them,
in any case whatever, it is now proper
to enquire into the power of those
No. IV.
EXETER, (N.H.) MONDAY, JUNE 18, 1810.
The only power vested in the two
branches of the National Legislature,
by the constitution, which bears upon
this subject, is contained in the third
paragraph of the fifth section of the
first article of the constitution, which
article establishes and defines the legis
lative functions. “ Each House shall
keep a journal ofits proceedings : and
from time to time, publish the same,
excepting such parts as may in their
judgment require secrecy : and the
yeas and nays of the members of either
House, on any question shall at the
desire of one.fifth of those present, be
entered on the jourual." This para
graph is naturally connected with that
which goes before it. '' Each House
may determine the rules of its proceed
ings ; punish its members for disorderly
behaviour ; and with the concurrence
of two thirds, expel a member." The
provision in the present constitution
respecting a secret journal, appears to
have been in some measure derived from
the seventh section of the Sth article of
the old Confederation of the States.
“ The Congress of the United States
shall have power to adjourn at any
time within the year, and to any place
within the United States, so that no
period of adjournment be for a longer
duration than six months, and shall
publish the journal of their proceed
ings monthly, except such parts there
of relating to treaties, alliances, or
military operations, as in their judg
ment reuqire secrecy ; and the yeas and
nays of the delegates of each state on
any question shall be entered on the
journal, when it is desired by any del
egate ; and the delegates of a state, or
any of them, at his or their request,
shall be furnished with a transcript of
the said Journal, except such parts as
are above excepted, to lay before the
legislatures of the several states.
As the old Congress possessed the
powers of peace and war, with only
a mere shadow of legislative powers
generally, and the power of making
treaties,now vested in the President and
Senate exclusively, the provision which
has just been quoted from the Articles
of Confederation, appears to have been
adopted with a view to the exercise of
those powers upon the subjects of
“ treaties, alliances, and military op
erations," and upon no other subjects.
As it was the object of " The People,"
in establishing the new Constitution,
to " form a more perfect union," by
the organization of a more energetic
system of government, a power was
given to each House to withold from
publication such parts of all their pro
ceedings as they should deem proper,
But when we consider that the powers
in reference to the exercise of which
under the Confederation, secrecy was
allowed, were divided in the new Con
stitution, the power of making treaties
and alliances being vested in the Senate
(together with the President) the pow
er of making war and providing for
military operations, in both Houses
conjointly, it is fairly presumable that
the framers of the constitution did not
contemplate secret proceedings in any
other cases. And in what other cases
can they be necessary, or consistent
with the principles of our institutions ?
Our political system is essentially a
system of publicity. The genius of it
is at war with the course so commonly
pursued by monarchical cabinets and
despotic divans. So far as our Con
gress have departed from this original
principle of our system, they are justly
liable to the censure involved in Lord
Chatham's speech on a motion for the
dissolution of Parliament, in 1771.
“ For a public assembly to be afraid
of having their deliberations published,
is monstrous and speaks for itself. No
mortal can construe such a procedure
to their advantage. It, and the prac
tice of locking the doors, are sufficient
to open the eyes of the blind ; they
must see that nil is not well within."
If this be good doctrine in a monarchy,
how much more so in a Republic !
The question is not, however, what
ought to be the powers of Congress,
in this respect, but what are those
powers, it is the opinion of some
that a written constitution affords no
security to the rights of the people.
Let us hope that this opinion is un
founded. It is dangerous to adopt
constructions of the spirit of the con
stitution. It is much safer to adhere
to the letter.. If this begenerally done,
and the constitution be at once correct
in principle and intelligible in expres
sion, how can it be otherwise than that
Houses to lay such an injunction upon
their own members.
^ From the Federal Republican.
For these two or three last years,
“ the division of the Union" has become
the subject of a great deal of discussion
among our politicians. You, sir, are
well acquainted with the reasons of this.
The bare conjecture, that the mon
strous system of measures, which has
been pursued for the' last six years,
might drive some of the States to this
terrible extremity, has been a source
of much anxiety, and deep concern to
the friends of the government. Per
mit me, sir, to make a few observations
to you on this subject.
It may be remarked, in the first place
that if ever such an event does take
place, it will not be in consequence of
any sober, deliberate, rational plan for
med on the occasion. It will not be
in consequence of any cool, deliberate
conviction of the part of the States,
that such a measure would be for the
interests and happiness of the two
sections of the country. But it will
be entirely the result of feeling and
passion, and party spirit ; giving rise,
in the first place, to a long series of vi
olent animosities and fierce contentions,
and terminating at length, in an hour
of desperate fury, in this terrible and
deplorable extremity. The Interests
and relations of the two sections of the
country are somutually and intimately
blended,that it is imposible a disunion
should be the result of cool, sober de
liberation.
At the present time, when the Em
peror Napoleon is subjugating and lay
ing waste all the countries of Europe :
and when we ought not to know, that
it is a prime end in all his plans to sub
jugate this country ; and that if ever
he conquers England, he will beja a
it should secure our rights and privi
leges? Could a lex non scripta, a
collection of " shreds and patches” of
legislative, executive, and judicial opin
ions and decisions, accumulated grad
ually in the progress of ages, secure
them better than this lex scripta, this
plainly recorded law, to which all can
recur, and which all comprehend ?
Each House of Congress, then has
power to conceal from the people such
a portion of its proceedings as it deems
improper for promulgation. But this
power can only be exercised by first
exercising another, that of “ determin
ing the rules of its proceeding," unless,
indeed, the House shall take the trouble,
from day to day, of taking a distinct
vote upon every part of the journal
which it means to keep concealed. No
such thing exists in practice. The
House of Representatives has establish
ed particular rules upon this subject.
It is provided that when a member
shall announce to the House that he
has a motion to make, the proceedings
upon which, in his opinion, ought to
be kept secret thedoors shall be closed,
and the House shall determine, by a
vote, whether those proceedings shall
be,secret or not. The House some
times immediately determines that the
proceedings shall not be kept secret,
as in the case of a motion which was
made for the sequestration of debts
due by the citizens of the United States
to British subjects. But no instance
is recollected in which the House liter
ally pursued its own rule, and deter
mined by a formal vote, that proceed
ings upon a motion made with closed
doors should be kept secret. The
House, therefore does not, in the cases
mentioned, pursue the letter of the
constitution and of its own rule which
is intended to carry that provision of
the constitution into effect. How far,
then, is the rule obligatory upon the
members ?
Another rule provides that when a
confidential message is received from,
the President, the proceedings upon
such message shall be secret, until the
House shall otherwise determine. But
nothing is said respecting documents
which may be communicated with the
nessage. These form, in fact, no part
of the " proceedings" of the House,
being merely matter of information to
bear upon those proceedings. They
are never recorded in the " journal of
its proceedings," and it is only “ such
parts" of the “ journal of its proceed
ings" as " may in their judgment re
quire secrecy," that they have a right
to conceal. This will lead us to the
investigation of a " deep question."
JAMES MADISON,
PRESIDENT OF THE UNITED STATES.
TO IIIS EXCELLENCY
[continued.]
It is a great pity, that effectual mea-'
sures are not entered into by the legis
latures of the southern states (similar
to those adopted in New England ;
throughout the whole of which publick
schools are established and well sup
ported) to enlighten the great body of
the people. It seems to me, sir, that:
one who has such vast influence as
you have; arid who by bare advice,
could effect wonders, ought to be more
active in doing good. I have, long
ago, been taught to discard that famous
sentiment of Chancellor Oxenstiern,
and the Bishop of St. Asaph, that hu
man governments can be administered
with very little wisdom. If the world
were governed as it ought to be, the
practical part of human legislation
would be as difficult and laborious as
the speculative part. You ought to be
as diligent and active, in contriving
ways of advancing the internal improve
ment of the country, as John Howard,
or “ that ornament of the princely
character," Alfred of England. This
digression from the subject with which
I began this letter, will not seem out
of the way. You will connect th,
two together, in your perusal.
There are a great many other sub
jects, sir, on which I wish to address
you at this time. But, I feel exceed
ingly discouraged to do so, when I
know that you understand the inter
est of the country w well. My voice,
or even that of jhe whole American
people, ought to make very little im
pressions upon you, when your own
understandings has refused to dictate
to you.
fairway of compassing it; it behoves
us most seriously, if we regard oac
own best interests, to unite ourselves
closely together, in order that ouc
force may be one, and powerful enough
to appall our enemies, whenever they 6
shall dare to invade us. All our little,
selfish party interests and prejudices!
ought to be forgotten in this consider-|
ation. Besides this, and a great many
other strong arguments, Qicb might:
be brought home to the heart of ever,
American, our* commercial interests 1
mutually agree ; if they are different,
they are not opposed. Butyou seem,
sir, unwilling that the Northern statfl
should be carriers for the Southern, £
am sure, it is mere weakness and folly,
which have made you and Mr. Jeffer
son so much disposed to depress the in
terests of the New England States.—«
And remember, sir, that the New-
Englanders are the last men in the
country who think of a disunion—■
that is, they are the last men who wish
it, and who believe that it will ever
take place, from a conviction of the
policy and excellency of the measure-
They have been charged with being;
friendly to such an event : those who
have charged it upon them, however
did it merely because they knew tha&
they were trampled upon, and thetf
supposed, therefore, that people must
have recourse io some expedient, to
alleviate their grievances. A differ
ence of manners and habits, or in oth
er words, a difference of state of so
ciety, might perhaps (not however
within the compass of fifty, or if wo
choose, of one hundred years) give
rise to a division of the Northern and
Southern sections of the country. —-
The state of society in the southern
States, is much worse than in New
England. In New England, sir, a.
better state of society exists, than in
any other country on earth either an
cient or modern, not even excepting
Great Britain. We are accustomed
(because we had rather read Montes
quieu than think for ourselves) to talk
of the Spartan and Lycean Republicks,
as models of excellent governments ;
but there are really more virtue and
intelligence, an hundred to one, in the
little state of Connecticut, than in all
the ancient republicks. I have lived
much among that people, sir, and have
paid a good deal of attention to their
manners and laws. I think their faults
are for the most part, little and trifling;
ones; such for instance, as want of
hospitality and unsociability. Asa
general rule, they are the most enlight
ened, the most virtuous, and the most:
industrious race of men on earth. This
will show you that they (and indeed all
New England) are naturally and pe
culiarly attached to a Republican
form of government ; that they will
not be the first among the states to!
vote for a mixed monarchy. The
present constitution of the general
government, will, 1 am afraid, suit
them much longer than the southern
states.
[No. 5.