Essays on the Constitution of the United States / Published during its Discussion by the People, 1787-1788

by Unknown

I shall now proceed to compare the constitution of the state of New York with the proposed federal government, distinguishing the paragraphs in the former, which are rendered nugatory by the latter; those which are in a great measure enervated, and such as are in the discretion of the general government to permit or not.

The 1st and 37th paragraphs of the constitution of the state of New York.

The 1st “Ordains, determines, and declares that no authority shall on any pretence whatever be exercised over the people or members of this State, but such as shall be derived from and granted by them.”

The 37th, “That no purchases or contracts for the sale of lands with or of the Indians within the limits of this state, shall be binding on the Indians, or deemed valid, unless made under the authority and with the consent of the legislature of this state.”

I beg here to observe that the whole history of this spurious constitution for the government of the United States, from its origin to the present day, and the measures taken by Congress [pg 301] respecting the Indian affairs in this state, are a series of violations of these paragraphs, and of the 13th article of the confederation.

It was a violation of the state constitution for the senate and assembly, on the 19th of February, 1787, to instruct their members to move in Congress for an act recommending a convention; and it was also a violation of the 13th article of the confederation for Congress, on the 21st day February, to recommend a convention to the several legislatures. It was a further violation of the constitution of this state, by the senate and assembly, on the 27th day of March, to join and to appoint delegates to meet in convention, and it being done in that hasty, if not surreptitious manner, by joint resolutions, when acts of the least consequence, even for the yoking of hogs, require to be passed under the formalities of a law, makes it more glaringly so.

It was an outrageous violation in the convention on the 17th of September, 1787, to attempt a consolidation of the union, and utterly destroy the confederation and the sovereignty of particular states, when their powers were restricted “to the sole and express purpose of revising and amending the confederation.”

It was again an infringement of the 13th article in the confederation, for Congress, on the 28th of September, not to arrest and prevent its being transmitted to the several legislatures; nor was the legislature of this state less culpable, in the beginning of February, 1788, who, in the course of three hours, took up and concluded the measure of calling a convention without apprising their constituents of the danger.

It is notorious that the right of regulating Indian affairs, especially with the five nations, has been in the colony of New York since the year 1664, and before that period, from the year 1614, whilst it was called New Nederland under the Dutch. That by the confederation, although Congress are invested with the power of regulating the trade and managing all affairs with the Indians, that they are restricted to those Indians “not members of any of the states, and a special proviso that the legislative rights of any state within its own limits be not infringed or violated.” It therefore was a violation of the confederation and of the rights of the state for the congressional commissioners of Indian affairs to [pg 302] treat, at fort Stanwix, with and thereat to make a purchase from the five nations without the authority or consent of the legislature of this state. It was an infraction of the rights of the citizens of this state, and an insult on their government, for those commissioners to wrest private property from individuals, imprison their persons, set at defiance the civil authority of the county of Montgomery, and violently to resist the execution of legal process. Nor was the ordinance of the 7th of August, 1786, for the regulation of Indian affairs, less so, namely, that “the Indian department be divided into two districts, viz.: the southern, which shall comprehend within its limits all the nations in the territory of the United States, who reside to the southward of the Ohio; and the northern, which shall comprehend all the nations within the said territory, and westward, not of lake Ontario, but of Hudson's river; that a superintendent for the northern districts shall have authority to appoint two deputies to reside in such places as shall best facilitate the regulation of the Indian trade; that no person, citizen or other, under the penalty of five hundred dollars, shall reside among or trade with any Indian or Indian nations within the territory of the United States, without a licence for that purpose first obtained from the superintendent of the district, or of one of the deputies, who is hereby directed to give such licence to every person who shall produce from the supreme executive of any state a certificate under the seal of the state, that he is of good character and suitably qualified and provided for that employment, for which licence he shall pay for one year the sum of fifty dollars to the said superintendent for the use of the United States.” If this was the conduct of Congress and their officers, when possessed of powers which were declared by them to be insufficient for the purposes of government, what have we reasonably to expect will be their conduct when possessed of the powers “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” when they are armed with legislative, executive and judicial powers, and their laws the supreme laws of the land—and when the states are prohibited, without the consent of Congress, to lay any “imposts or duties on imports,” and if they do they shall be for the use of the [pg 303] treasury of the United States—and all such laws subject to the revision and controul of Congress.

It is therefore evident that this state, by adopting the new government, will enervate their legislative rights, and totally surrender into the hands of Congress the management and regulation of the Indian trade to an improper government, and the traders to be fleeced by iniquitous impositions, operating at one and the same time as a monopoly and a poll-tax. The deputy by the above ordinance, has a right to exact yearly fifty dollars from every trader, which Congress may increase to any amount, and give it all the operation of a monopoly; fifty dollars on a cargo of 10,000 dollars' value will be inconsiderable, on a cargo of 1000 dollars burthensome, but on a cargo of 100 dollars will be intolerable, and amount to a total prohibition, as to small adventurers.