[64] The advantage derived from this to the southern states, is easily perceived. Have not serious apprehensions been entertained on account of the vast superiority of the eastern states by sea?
[65] Is it possible to reflect, without indignation, on the fate of the five per cent. impost scheme?
[66] This objection has been in some degree lessened, by an amendment, often before refused, and at last made by an erasure, after the engrossment upon parchment, of the word forty, and inserting thirty, in the third clause of the second section of the first article.
[67] It appears to me a very just remark of Mr. Wilson’s, in his celebrated speech, that a bill of rights would have been dangerous, as implying that without such a reservation the Congress would have had authority in the cases enumerated, so that if any had been omitted (and who would undertake to recite all the State and individual rights not relinquished by the new Constitution?) they might have been considered at the mercy of the general legislature.
[68] I have understood it was considered at the Convention, that the proportion of one Representative to 30,000 constituents, would produce at the very first nearly the number that would be satisfactory to Mr. Mason. So that I presume this reason was wrote before the material alteration was made from 40,000 to 30,000, which is said to have taken place the very last day just before the signature.
[69] It seems by the letter which has been published of Mr. Elsworth and Mr. Sherman, as if one reason of giving a share in these appointments to the Senate was, that persons in what are called the lesser States might have an equal chance for such appointments, in proportion to their merit, with those in the larger, an advantage that could only be expected from a body in which the States were equally represented.
[70] When I wrote the above, I had not seen Governor Randolph’s letter. Otherwise, I have so great a respect for that gentleman’s character I should have treated with more deference an idea in some measure countenanced by him. One of his objections relates to the Congress fixing their own salaries. I am persuaded, upon a little reflection, that gentleman must think this is one of those cases where a trust must unavoidably be reposed. No salaries could certainly be fixed now so as to answer the various changes in the value of money that in the course of time must take place. And in what condition would the supreme authority be if their very existence depended on an inferior power! An abuse in this case too would be so gross that it is very unlikely to happen, but if it should it would probably prove much more fatal to the authors than injurious to the people.
[71] See Coke’s Commentary upon Littleton, 110. 1. Blackstone’s Commentary, 227 and seq.
[72] 1. Blackstone’s Commentaries, 232.
[73] I have since found that in the constitutions of some of the States there are much stronger restrictions on the Executive authority in this particular than I was aware of. In others the restriction only extends to prosecutions carried on by the General Assembly, or the most numerous branch of legislature, or a contrary provision by law; Virginia is in the latter class. But when we consider how necessary it is in many cases to make use of accomplices to convict their associates, and what little regard ought in general to be paid to a guilty man swearing to save his own life, we shall probably think that the jealousies which (by prohibiting pardons before convictions) even disabled the Executive authority from procuring unexceptionable testimony of this sort, may more fairly be ascribed to the natural irritation of the public mind at the time when the constitutions were formed, than to an enlarged and full consideration of the subject. Indeed, it could scarcely be avoided, that when arms were first taken up in the cause of liberty, to save us from the immediate crush of arbitrary power, we should lean too much rather to the extreme of weakening than of strengthening the Executive power in our own government. In England, the only restriction upon this power in the King, in case of Crown prosecutions (one or two slight cases excepted) is, that his pardon is not pleadable in bar of an impeachment. But he may pardon after conviction, even on an impeachment; which is an authority not given to our President, who in case of impeachments has no power either of pardoning or reprieving.