The Anti-Federalist Library

June 19, 1788

Mr. Chairman,

This great national concern is handled in a manner quite new to me. When arguments are used which are calculated in their nature to mislead men, — when I reflect on the subject, I dread that our rights are about to be given away, though I may possibly be mistaken. I said yesterday, and not without thinking much on the subject, that my mind would be at ease were we on the same grounds, in this respect, as the English are. Gentlemen think that Great Britain was adduced by me, in this instance, unfortunately for myself, because the learned Judge Blackstone says that treaties are binding on the nation, and the king can make treaties. That learned judge says there is one thing which operates as a guard. That thing we have not in this paper — it is responsibility. He tells you that the minister who will sacrifice the interest of the nation is subject to parliamentary impeachment. This has been ever found to be effectual. But I beg gentlemen to consider the American impeachment. What is it? It is a mere sham — a mere farce. When they do any thing derogatory to the honor or interest of their country, they are to try themselves. Is it so in England? The history of that country shows that they have blocks and gibbets. The violators of the public interest have been tried justly and impartially, and perished by those necessary instruments of justice. Can there be any security where offenders mutually try one another? I hope gentlemen will consider the necessity of amendment in this clause.

We are told that the state rights are preserved. Suppose the state right to territory be preserved; I ask and demand, How do the rights of persons stand, when they have power to make any treaty, and that treaty is paramount to constitutions, laws, and every thing? When a person shall be treated in the most horrid manner, and most cruelly and inhumanly tortured, will the security of territorial rights grant him redress? Suppose an unusual punishment in consequence of an arrest similar to that of the Russian ambassador; can it be said to be contrary to the state rights?

I might go on in this discrimination; but it is too obvious that the security of territory is no security of individual safety. I ask, How are the state rights, individual rights, and national rights, secured? Not as in England; for the authority quoted from Blackstone would, if stated right, prove, in a thousand instances, that, if the king of England attempted to take away the rights of individuals, the law would stand against him. The acts of Parliament would stand in his way. The bill and declaration of rights would be against him. The common law is fortified by the bill of rights. The rights of the people cannot be destroyed, even by the paramount operation of the law of nations, as the case of the Russian ambassador evinces. If you look for a similar security in the paper on your table, you look in vain. That paper is defective without such a declaration of rights. It is unbounded without such restrictions. If the Constitution be paramount, how are the constitutions and laws of the states to stand? Their operation will be totally controlled by it; for it is paramount to every thing, unless you can show some guard against it. The rights of persons are exposed as it stands now.

The calculation of the honorable gentleman (Mr. Corbin) was wrong. I am sure he spoke from the best of his recollection, when he referred to our treaty of peace with Great Britain, and said that it was binding on the nation, though disapproved of by Parliament. Did not an act of Parliament pass, acknowledging the independence of America? If the king of England wished to dismember the empire, would he dare to attempt it without the advice of Parliament? The most hardy minister would not dare to advise him to attempt it without a previous consultation of Parliament. No cession of territory is binding on the nation unless it be fortified by an act of Parliament. Will it be so in your American government? No. They will tell you that they are omnipotent as to this point.

We are so used to speak of enormity of powers, that we are familiarized with it. To me this power appears still destructive; for they can make any treaty. If Congress forbears to exercise it, you may thank them; but they may exercise it if they please, and as they please. They have a right, from the paramount power given them, to do so. Will the gentleman say that this power is paramount to the state laws only? Is it not paramount to the Constitution and every thing? Can any thing be paramount to what is paramount? Will not the laws of Congress be binding on Congress, as well as on any particular state? Will they not be bound by their own acts? The worthy gentleman must seethe impropriety of his assertion. To render this safe, I conceive we must adopt my honorable friend’s amendment. The component part of this supreme power are the President, senators, and House of Representatives. The latter is the most material part. They ought to interpose in the formation of treaties. When their consent is necessary, there will be a certainty of attending to the public interests.

Mr. Henry then contended that there was real responsibility in the British government, and sufficient security arising from the common law, declaration of rights, &c.; whereas, in this government, there was no barrier to stop their mad career. He hoped to obtain the amendments which his honorable friend had proposed.