Elliot’s Debates: Volume 2
Convention of Pennsylvania
Tuesday, December 11, 1787, A. M.
Mr. WILSON. Three weeks have now elapsed since this Convention met. Some of the delegates attended on Tuesday, the 20th November; a great majority within a day or two afterwards; and all but one on the 4th day. We have been since employed in discussing the business for which we are sent here. I think it will now become evident to every person who takes a candid view of our discussions, that it is high time our proceedings should draw towards a conclusion.
Perhaps our debates have already continued as long, nay, longer than is sufficient for every good purpose. The business which we were intended to perform is necessarily reduced to a very narrow compass. The single question to be determined is, Shall we assent to and ratify the Constitution proposed?
As this is the first state whose Convention has met on the subject, and as the subject itself is of very great importance, not only to Pennsylvania, but to the United States, it was thought proper fairly, openly, and candidly to canvass it. This has been done. You have heard, Mr. President, from day to day, and from week to week, the objections that could be offered from any quarter. We have heard these objections once: we have heard a great number of them repeated much oftener than once. Will it answer any valuable end, sir, to protract these debates longer? I suppose it will not. I apprehend it may serve to promote very pernicious and destructive purposes. It may, perhaps, be insinuated to other states, and even to distant parts of this state, by people in opposition to this system, that the expediency of adopting is at most very doubtful, and that the business lingers among the members of the Convention.
This would not be a true representation of the fact; for there is the greatest reason to believe that there is a very considerable majority who do not hesitate to ratify the Constitution. We were sent here to express the voice of our constituents on the subject, and I believe that many of them expected to hear the echo of that voice before this time.
When I consider the attempts that have been made on this floor, and the many misrepresentations of what has been said among us that have appeared in the public papers, printed in this city, I confess that I am induced to suspect that opportunity may be taken to pervert and abuse the principles on which the friends of this Constitution act. If attempts are made here, will they not be repeated when the distance is greater, and the means of information fewer? Will they not at length produce an uneasiness, for which there is, in fact, no cause? Ought we not to prohibit any such uses being made of the continuance of our deliberations? We do not wish to preclude debate: of this our conduct has furnished the most ample testimony. The members in opposition have not been prevented a repetition of all their objections that they could urge against this plan.
The honorable gentleman from Fayette, (Mr. Smilie,) the other evening, claimed for the minority the merit of contending for the rights of mankind; and he told us that it has been the practice of all ages to treat such minorities with contempt; he further took the liberty of observing, that, if the majority had the power, they do not want the inclination, to consign the minority to punishment. I know that claims, self-made, form no small part of the merit to which we have heard undisguised pretences; but it is one thing to claim, and it is another thing, very different indeed, to support that claim. The minority, sir, are contending for the rights of mankind; what, then, are the majority contending for? If the minority are contending for the rights of mankind, the majority must be contending for the doctrines of tyranny and slavery. Is it probable that that is the case? Who are the majority in this assembly?Are they not the people? are they not the representatives of the people, as well as the minority? Were they not elected by the people, as well as the minority? Were they not elected by the greater part of the people? Have we a single right separate from the rights of the people? Can we forge fetters for others that will not be clasped round our own limbs? Can we make heavy chains that shall not cramp the growth of our own posterity? On what fancied distinction shall the minority assume to themselves the merit of contending for the rights of mankind?
Sir, if the system proposed by the late Convention, and the conduct of its advocates who have appeared in this house, deserve the declarations and insinuations that have been made concerning them, well may we exclaim, “Ill-fated America! thy crisis was approaching! perhaps it was come! Thy various interests were neglectedthy most sacred rights were insecure. Without a government, without energy, without confidence internally, without respect externally, the advantages of society were lost to thee! In such a situation, distressed, but not despairing, thou desiredst to reassume thy native vigor, and to lay the foundation of future empire. Thou selectedst a number, of thy sons, to meet together for the purpose. The selected and honored characters met; but, horrid to tell, they not only consented, but they combined in an aristocratic system, calculated and intended to enslave their country! Unhappy Pennsylvania! thou, as a part of the Union, must share in its unfortunate fate; for when this system, after being laid before thy citizens, comes before the delegates selected by them for its consideration, there are found but three of the numerous members that have virtue enough to raise their voices in support of the rights of mankind!” America, particularly Pennsylvania, must be ill-starred, indeed, if this is a true state of the case. I trust we may address our country in far other language.
“Happy America! thy crisis was indeed alarming, but thy situation was not desperate. We had confidence in our country; though, on whichever side we turned, we were presented with scenes of distress. Though the jarring interests of the various states, and the different habits and inclinations of their inhabitants, all lay in the way, and rendered our prospect gloomy and discouraging indeed, yet such were the generous and mutual sacrifices offered up, that, amidst forty-two members, who represented twelve of the United States, there were only three who did not attest the instrument, as a confirmation of its goodness. Happy Pennsylvania! this plan has been laid before thy citizens for consideration; they have sent delegates to express their voice; and listenwith rapture listen!from only three opposition has been heard against it.”
The singular unanimity that has attended the whole progress of their business, will, in the minds of those considerate men who have not had opportunity to examine the general and particular interest of their country, prove, to their satisfaction, that it is an excellent Constitution, and worthy to be adopted, ordained, and established, by the people of the United States.
After having viewed the arguments drawn from probability, whether this is a good or a bad system, whether those who contend for it, or those who contend against it, contend for the rights of mankind, let us step forward and examine the fact.
We were told, some days ago, by the honorable gentleman from Westmoreland, (Mr. Findley,) when speaking of this system and its objects, that the Convention, no doubt, thought they were forming a compact, or contract, of the greatest importance. Sir, I confess I was much surprised, at so late a stage of the debate, to hear such principles maintained. It was a matter of surprise to see the great leading principle of this system still so very much misunderstood. “The Convention, no doubt, thought they were forming a contract!” I cannot answer for what every member thought; but I believe it cannot be said that they thought they were making a contract, because I cannot discover the least trace of a compact in that system. There can be no compact unless there are more parties than one. It is a new doctrine that one can make a compact with himself. “The Convention were forming compacts!” With whom? I know no bargains that were made there. I am unable to conceive who the parties could be. The state governments make a bargain with one another; that is the doctrine that is endeavored to be established by gentlemen in opposition,that state sovereignties wish to be represented! But far other were the ideas of the Convention, and far other are those conveyed in the system itself.
As this subject has been often mentioned, and as often misunderstood, it may not be improper to take some further notice of it. This, Mr. President, is not a government founded upon compact; it is founded upon the power of the people. They express in their name and their authority”We, the people, do ordain and establish,” &c.; from their ratification alone it is to take its constitutional authenticity; without that, it is no more than tabula rasa.
I know very well all the common-place rant of state sovereignties, and that government is founded in original compact. If that position was examined, it will be found not to accede very well with the true principle of free government. It does not suit the language or genius of the system before us. I think it does not accord with experience, so far as I have been able to obtain information from history.
The greatest part of governments have been founded on conquest: perhaps a few early ones may have had their origin in paternal authority. Sometimes a family united, and that family afterwards extended itself into a community. But the greatest governments which have appeared on the face of the globe have been founded in conquest. The great empires of Assyria, Persia, Macedonia, and Rome, were all of this kind. I know well that in Great Britain, since the revolution, it has become a principle that the constitution is founded in contract; but the form and time of that contract, no writer has yet attempted to discover. It was, however, recognized at the time of the revolution, therefore is politically true. But we should act very imprudently to consider our liberties as placed on such foundation.
If we go a little further on this subject, I think we shall see that the doctrine of original compact cannot be supported consistently with the best principles of government. If we admit it, we exclude the idea of amendment; because a contract once entered into between the governor and governed becomes obligatory, and cannot be altered but by the mutual consent of both parties. The citizens of united America, I presume, do not wish to stand on that footing with those to whom, from convenience, they please to delegate the exercise of the general powers necessary for sustaining and preserving the Union. They wish a principle established, by the operation of which the legislatures may feel the direct authority of the people. The people, possessing that authority, will continue to exercise it by amending and improving their own work. This Constitution may be found to have defects in it; hence amendments may become necessary; but the idea of a government founded on contract destroys the means of improvement. We hear it every time the gentlemen are up, “Shall we violate the Confederation, which directs every alteration that is thought necessary to be established by the state legislatures only!” Sir, those gentlemen must ascend to a higher source: the people fetter themselves by no contract. If your state legislatures have cramped themselves by compact, it was done without the authority of the people, who alone possess the supreme power.
I have already shown that this system is not a compact, or contract; the system itself tells you what it is; it is an ordinance and establishment of the people. I think that the force of the introduction to the work must by this time have been felt. It is not an unmeaning flourish. The expressions declare, in a practical manner, the principle of this Constitution. It is ordained and established by the people themselves; and we, who give our votes for it, are merely the proxies of our constituents. We sign it as their attorneys, and, as to ourselves, we agree to it as individuals.
We are told, by honorable gentlemen in opposition, “that the present Confederation should have been continued, but that additional powers should have been given to it; that such was the business of the late Convention, and that they had assumed to themselves the power of proposing another in its stead; and that which is proposed is such a one as was not expected by the legislature nor by the people.” I apprehend this would have been a very insecure, very inadequate, and a very pernicious mode of proceeding. Under the present Confederation, Congress certainly do not possess sufficient power; but one body of men we know they are; and were they invested with additional powers, they must become dangerous. Did not the honorable gentleman himself tell us that the powers of government, vested either in one man or one body of men, formed the very description of tyranny? To have placed in the present the legislative, the executive, and judicial authority, all of which are essential to the general government, would indubitably have produced the severest despotism. From this short deduction, one of these two things must have appeared to the Convention, and must appear to every man who is at the pains of thinking on the subject. It was indispensably necessary either to make a new distribution of the powers of government, or to give such powers to one body of men as would constitute a tyranny. If it is proper to avoid tyranny, it becomes requisite to avoid placing additional powers in the hands of a Congress constituted like the present; hence the conclusion is warranted, that a different organization ought to take place.
Our next inquiry ought to be, whether this is the most proper disposition and organization of the necessary powers. But before I consider this subject, I think it proper to notice one sentiment, expressed by an honorable gentleman from the county of Cumberland, (Mr. Whitehill.) He asserts that the extent of the government is too great, and this system cannot be executed. What is the consequence, if this assertion is true? It strikes directly at the root of the Union.
I admit, Mr. President, there are great difficulties in adapting a system of good and free government to the extent of our country. But I am sure that our interests, as citizens, as states, and as a nation, depend essentially upon a union. This Constitution is proposed to accomplish that great and desirable end. Let the experiment be made; let the system be fairly and candidly tried, before it is determined that it cannot be executed.
I proceed to another objection; for I mean to answer those that have been suggested since I had the honor of addressing you last week. It has been alleged, by honorable gentlemen, that this general government possesses powers for internal purposes, and that the general government cannot exercise internal powers. The honorable member from Westmoreland (Mr. Findley) dilates on this subject, and instances the opposition that was made by the colonies against Great Britain, to prevent her imposing internal taxes or excises. And before the federal government will be able to impose the one, or obtain the other, he considers it necessary that it should possess power for every internal purpose.
Let us examine these objections: If this government does not possess internal as well as external power, and that power for internal as well as external purposes, I apprehend that all that has hitherto been done must go for nothing. I apprehend a government that cannot answer the purposes for which it was intended is not a government for this country. I know that Congress, under the present Articles of Confederation, possess no internal power, and we see the consequences: they can recommendthey can go further, they can make requisitions; but there they must stop; for, as far as I recollect, after making a law, they cannot take a single step towards carrying it into execution. I believe it will be found, in experience, that, with regard to the exercise of internal powers, the general government will not be unnecessarily rigorous. The future collection of the duties and imposts will, in the opinion of some, supersede the necessity of having recourse to internal taxation. The United States will not, perhaps, be often under the necessity of using this power at all; but if they should, it will be exercised only in a moderate degree. The good sense of the citizens of the United States is not to be alarmed by the picture of taxes collected at the point of the bayonet. There is no more reason to suppose that the delegates and representatives in Congress, any more than the legislature of Pennsylvania, or any other state, will act in this manner. Insinuations of this kind, made against one body of men, and not against another, though both the representatives of the people, are not made with propriety; nor will they have the weight of argument. I apprehend the greatest part of the revenue will arise from external taxation. But certainly it would have been very unwise in the late Convention to have omitted the addition of the other powers; and I think it would be very unwise in this Convention to refuse to adopt this Constitution, because it grants Congress power to lay and collect taxes, for the purpose of providing for the common defence and general welfare of the United States.
What is to be done to effect these great purposes, if an impost should be found insufficient? Suppose a war was suddenly declared against us by a foreign power, possessed of a formidable navy; our navigation would be laid prostrate, our imposts must cease: and shall our existence as a nation depend upon the peaceful navigation of our seas? A strong exertion of maritime power, on the part of an enemy, might deprive us of these sources of revenue in a few months. It may suit honorable gentlemen, who live at the western extremity of this state, that they should contribute nothing, by internal taxes, to the support of the general government. They care not what restraints are laid upon our commerce; for what is the commerce of Philadelphia to the inhabitants on the other side of the Alleghany Mountains? But though it may suit them, it does not suit those in the lower part of the state, who are by far the most numerous; Nor can we agree that our safety should depend altogether upon a revenue arising from commerce.
Excise may be a necessary mode of taxation; it takes place in most states already.
The capitation tax is mentioned as one of those that are exceptionable. In some states, that mode of taxation is used; but I believe, in many, it would be received with great reluctance; there are one or two states where it is a constantly in use, and without any difficulties and inconveniences arising from it. An excise, in its very principles, is an improper tax, if it could be avoided; but yet it has been a source of revenue in Pennsylvania, both before the revolution and since; during all which time we have enjoyed the benefit of free government.
I presume, sir, that the executive powers of government ought to be commensurate with the government itself, and that a government which cannot act in every part is, so far, defective. Consequently, it is necessary that Congress possess powers to tax internally, as well as externally.
It is objected to this system, that under it there is no sovereignty left in the state governments. I have had occasion to reply to this already; but I should be very glad to know at what period the state governments became possessed of the supreme power. On the principle on which I found my arguments,and that is, the principle of this Constitution,the supreme power resides in the people. If they choose to indulge a part of their sovereign power to be exercised by the state governments, they may. If they have done it, the states were right in exercising it; but if they think it no longer safe or convenient, they will resume it, or make a new distribution, more likely to be productive of that good which ought to be our constant aim.
The powers both of the general government and the state governments, under this system, are acknowledged to be so many emanations of power from the people. The great object now to be attended to, instead of disagreeing about who shall possess the supreme power, is, to consider whether the present arrangement is well calculated to promote and secure the tranquility and happiness of our common country. These are the dictates of sound and unsophisticated sense, and what ought to employ the attention and judgment of this honorable body.
We are next told by the honorable gentleman in opposition, (as indeed we have been, from the beginning of the debates in this Convention, to the conclusion their speeches yesterday,) that this is a consolidated government, and will abolish the state governments.
Definitions of a consolidated government have been called for; the gentlemen gave us what they termed definition, but it does not seem to me, at least, that they have as yet expressed clear ideas upon that subject. I will endeavor to state their different ideas upon this point. The gentleman from Westmoreland, (Mr. Findley,) when speaking on this subject, says that he means, by a consolidation, that government which puts the thirteen states into one.
The honorable gentleman from Fayette (Mr. Smilie) gives you this definition: “What I mean by a consolidated government, is one that will transfer the sovereignty from the state governments to the general government.”
The honorable member from Cumberland, (Mr. Whitehill,) instead of giving you a definition, sir, tells you again, that “it is a consolidated government, and we have proved it so.”
These, I think, sir, are the different descriptions given to us of a consolidated government. As to the first, that it is a consolidated government, that puts the thirteen United States into one,if it is meant that the general government will destroy the governments of the states, I will admit that such a government would not suit the people of America. It would be improper for this country, because it could not be proportioned to its extent, on the principles of freedom. But that description does not apply to the system before you. This, instead of placing the state governments in jeopardy, is founded on their existence. On this principle its organization depends; it must stand or fall, as the state governments are secured or ruined. Therefore, though this may be a very proper description of a consolidated government, yet it must be disregarded, as inapplicable to the proposed Constitution. It is not treated with decency when such insinuations are offered against it.
The honorable gentleman (Mr. Smilie) tells you that a consolidated government “is one that will transfer the sovereignty from the state governments to the general government.” Under this system, the sovereignty is not in the possession of the governments, therefore it cannot be transferred from them to the general government; so that in no point of view of this definition can we discover that it applies to the present system.
In the exercise of its powers will be insured the exercise of their powers to the state governments; it will insure peace and stability to them; their strength will increase with its strength; their growth will extend with its growth.
Indeed, narrow mindsand some such there are in every governmentnarrow minds and intriguing spirits will be active in sowing dissensions and promoting discord between them. But those whose understanding and whose hearts are good enough to pursue the general welfare, will find that what is the interest of the whole, must, on the great scale, be the interest of every part. It will be the duty of a state, as of an individual, to sacrifice her own convenience to the general good of the Union.
The next objection that I mean to take notice of is, that the powers of the several parts of this government are not kept as distinct and independent as they ought to be. I admit the truth of this general sentiment. I do not think that, in the powers of the Senate, the distinction is marked with so much accuracy as I wished, and still wish; but yet I am of opinion that real and effectual security is obtained, which is saying a great deal. I do not consider this part as wholly unexceptionable; but even where there are defects in this system, they are improvements upon the old. I will go a little further; though, in this system, the distinction and independence of power is not adhered to with entire theoretical precision, yet it is more strictly adhered to than in any other system of government in the world. In the Constitution of Pennsylvania, the executive department exercises judicial powers in the trial of public officers; yet a similar power, in this system, is complained of; at the same time, the Constitution of Pennsylvania is referred to as an example for the late Convention to have taken a lesson by.
In New Jersey, in Georgia, in South Carolina, and North Carolina, the executive power is blended with the legislative. Turn to their constitutions, and see. in how many instances.
In North Carolina, the Senate and House of Commons elect the governor himself: they likewise elect seven/persons to be a council of state, to advise the governor in the execution of his office. Here we find the whole executive department under the nomination of the legislature, at least the most important part of it.
In South Carolina, the legislature appoints the governor and commander-in-chief, lieutenant-governor and privy council. “Justices of the peace shall be nominated by the legislature, and commissioned by the governor;” and what is more, they are appointed during pleasure. All other judicial officers are to be appointed by the Senate and House of Representatives. I might go further, and detail a great multitude of instances, in which the legislative, executive, and judicial powers are blended; but it is unnecessary; I only mention these to show, that, though this Constitution does not arrive at what is called perfection, yet it contains great improvements, and its powers are distributed with a degree of accuracy superior to what is termed accuracy in particular states.
There are four instances in which improper powers are said to be blended in the Senate. We are told that this government is imperfect, because the Senate possess the power of trying impeachments; but here, sir, the Senate are under a check, as no impeachment can be tried until it is made; and the House of Representatives possess the sole power of making impeachments. We are told that the share which the Senate have in making treaties is exceptionable; but here they are also under a check, by a constituent part of the government, and nearly the immediate representative of the peopleI mean the President of the United States. They can make no treaty without his concurrence. The same observation applies in the appointment of officers. Every officer must be nominated solely and exclusively by the President.
Much has been said on the subject of treaties; and this power is denominated a blending of the legislative and executive powers in the Senate. It is but justice to represent the favorable, as well as unfavorable, side of a question, and from thence determine whether the objectionable parts are of a sufficient weight to induce a rejection of this Constitution.
There is no doubt, sir, but, under this Constitution, treaties will become the supreme law of the land; nor is there any doubt but the Senate and President possess the power of making them. But though the treaties are to have the force of laws, they are in some important respects very different from other acts of legislation. In making laws, our own consent alone is necessary. In forming treaties, the concurrence of another power becomes necessary. Treaties, sir, are truly contracts, or compacts, between the different states, nations, or princes, who find it convenient or necessary to enter into them. Some gentlemen are of opinion that the power of making treaties should have been placed in the legislature at large; there are, however, reasons that operate with great force on the other side. Treaties are frequently (especially in time of war) of such a nature, that it would be extremely improper to publish them, or even commit the secret of their negotiation to any great number of persons. For my part, I am not an advocate for secrecy in transactions relating to the public; not generally even in forming treaties, because I think that the history of the diplomatic corps will evince, even in that great department of politics, the truth of an old adage, that “honesty is the best policy,” and this is the conduct of the most able negotiators; yet sometimes secrecy may be necessary, and therefore it becomes an argument against committing the knowledge of these transactions to too many persons. But in their nature treaties originate differently from laws. They are made by equal parties, and each side has half of the bargain to make; they will be made between us and powers at the distance of three thousand miles. A long series of negotiation will frequently precede them; and can it be the opinion of these gentlemen that the legislature should be in session during this whole time? It well deserves to be remarked, that, though the House of Representatives possess no active part in making treaties, yet their legislative authority will be found to have strong restraining influences upon both President and Senate. In England, if the king and his ministers find themselves, during their negotiation, to be embarrassed because an existing law is not repealed, or a new law is not enacted, they give notice to the legislature of their situation, and inform them that it will be necessary, before the treaty can operate, that some law be repealed, or some be made. And will not the same thing take place here? Shall less prudence, less caution, less moderation, take place among those who negotiate treaties for the United States, than among those who negotiate them for the other nations of the earth? And let it be attended to, that, even in the making of treaties, the states are immediately represented, and the people immediately represented; two of the constituent parts of government must concur in making them. Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.
I might suggest other reasons, to add weight to what has already been offered; but I believe it is not necessary; yet let me, however, add one thingthe Senate is a favorite with many of the states, and it was with difficulty that these checks could be procured; it was one of the last exertions of conciliation, in the late Convention, that obtained them.
It has been alleged, as a consequence of the small number of representatives, that they will not know, as intimately as they ought, the interests, inclinations, or habits, of their constituents.
We find, on an examination of all its parts, that the objects of this government are such as extend beyond the bounds of the particular states. This is the line of distinction between this government and the particular state governments.
This principle I had an opportunity of illustrating on a former occasion. Now, when we come to consider the objects of this government, we shall find that, in making our choice of a proper character to be a member of the House of Representatives, we ought to fix on one whose mind and heart are enlarged; who possesses a general knowledge of the interests of America, and a disposition to make use of that knowledge for the advantage and welfare of his country. It belongs not to this government to make an act for a particular township, county, or state.
A defect in minute information has not certainly been an objection in the management of the business of the United States; but the want of enlarged ideas has hitherto been chargeable on our councils; yet, even with regard to minute knowledge, I do not conceive it impossible to find eight characters that may be very well informed as to the situation, interests, and views, of every part of this state, and who may have a concomitant interest with their fellow-citizens; they could not materially injure others without affecting their own fortunes.
I did say that, in order to obtain that enlarged information in our representatives, a large district for election would be more proper than a small one. When I speak of large districts, it is not agreeably to the idea entertained by the honorable member from Fayette, (Mr. Smilie,) who tells you that elections for large districts must be ill attended, because the people will not choose to go very far on this business. It is not meant, sir, by me, that the votes should be taken at one place; no, sir; the elections may be held through this state in the same manner as elections for members of the General Assembly; and this may be done, too, without any additional inconvenience or expense.
If it could be effected, all the people of the same society ought to meet in one place, and communicate freely with each other on the great business of representation. Though this cannot be done in fact, yet we find that it is the most favorite and constitutional idea. It is supported by this principle too, that every member is the representative of the whole community, and not of a particular part. The larger, therefore, the district is, the greater is the probability of selecting wise and virtuous characters, and the more agreeable it is to the constitutional principle of representation.
As to the objection that the House of Representatives may be bribed by the Senate, I confess I do not see that bribery is an objection against this system; it is rather an objection against human nature. I am afraid that bribes in every government may be offered and received; but let me ask of the gentlemen who urge this objection to point out where any power is given to bribe under this Constitution. Every species of influence is guarded against as much as possible. Can the Senate procure money to effect such design? All public moneys must be disposed of by law, and it is necessary that the House of Representatives originate such law. Before the money can be got out of the treasury, it must be appropriated by law. If the legislature had the effrontery to set aside three or four hundred thousand pounds for this purpose, and the people would tamely suffer it, I grant it might be done; and in Pennsylvania the legislature might do the same; for, by a law, and that conformably to the Constitution, they might divide among themselves what portion of the public money they pleased. I shall just remark, sir, that the objections which have repeatedly been made with regard to “the number of representatives being too small, and that they may possibly be made smaller; that the districts are too large, and not within the reach of the people; and that the House of Representatives may be bribed by the Senate,” come with an uncommon degree of impropriety from those who would refer us back to the Articles of Confederation; for, under these, the representation of this state cannot exceed seven members, and may consist of only two; and these are wholly without the reach or control of the people. Is there not also greater danger that the majority of such a body might be more easily bribed than the majority of one not only more numerous, but checked by a division of two or three distinct and independent parts? The danger is certainly better guarded against in the proposed system than in any other yet devised.
The next objections, which I shall notice, are, “that the powers of the Senate are too great; that the representation therein is unequal; and that the Senate, from the smallness of its number, may be bribed.” Is there any propriety in referring us to the Confederation on this subject? Because, in one or two instances, the Senate possess more power than the House of Representatives, are these gentlemen supported in their remarks, when they tell you they wished and expected more powers to be given to the present Congressa body certainly much more exceptionable than any instituted under this system?
That “the representation in the Senate is unequal,” I regret, because I am of opinion that the states ought to be represented according to their importance; but in this system there is a considerable improvement; for the true principle of representation is carried into the House of Representatives, and into the choice of the President; and without the assistance of one or the other of these, the Senate is inactive, and can do neither good nor evil.
It is repeated, again and again, by the honorable gentleman, that “the power over elections, which is given to the general government in this system, is a dangerous power.” I must own I feel, myself, surprised that an objection of this kind should be persisted in, after what has been said by the honorable colleague in reply. I think it has appeared, by a minute investigation of the subject, that it would have been not only unwise, but highly improper, in the late Convention, to have omitted this clause, or given less power than it does over elections. Such powers, sir, are enjoyed by every state government in the United States. In some they are of a much greater magnitude; and why should this be the only one deprived of them? Ought not these, as well as every other legislative body, to have the power of judging of the qualifications of its own members? “The times, places, and manner of holding elections for representatives, may be altered by Congress.” This power, sir, has been shown to be necessary, not only on some particular occasions, but even to the very existence of the federal government. I have heard same very improbable suspicions indeed suggested with regard to the manner in which it will be exercised. Let us suppose it may be improperly exercised; is it not more likely so to be by the particular states than by the government of the United States?because the general government will be more studious of the good of the whole than a particular state will be; and therefore, when the power of regulating the time, place, or manner of holding elections, is exercised by the Congress, it will be to correct the improper regulations of a particular state.
I now proceed to the second article of this Constitution, which relates to the executive department.
I find, sir, from an attention to the arguments used by the gentlemen on the other side of the house, that there are but few exceptions taken to this part of the system. I shall take notice of them, and afterwards point out some valuable qualifications, which I think this part possesses in an eminent degree.
The objection against the powers of the President is not that they are too many or too great; but, to state it in the gentlemen’s own language, they are so trifling, that the President is no more than the tool of the Senate.
Now, sir, I do not apprehend this to be the case, because I see that he may do a great many things independently of the Senate; and, with respect to the executive powers of government in which the Senate participate, they can do nothing without him. Now, I would ask, which is most likely to be the tool of the other? Clearly, sir, he holds the helm, and the vessel can proceed neither in one direction nor another, without his concurrence. It was expected by many, that the cry would have been against the powers of the President as a monarchical power; indeed, the echo of such sound was heard some time before the rise of the late Convention. There were men, at that time, determined to make an attack upon whatever system should be proposed; but they mistook the point of direction. Had the President possessed those powers, which the opposition on this floor are willing to consign him, of making treaties and appointing officers, with the advice of a council of state, the clamor would have been, that the House of Representatives and the Senate were the tools of the monarch. This, sir, is but conjecture; but I leave it to those who are acquainted with the current of the politics pursued by the enemies of this system, to determine whether it is a reasonable conjecture or not.
The manner of appointing the President of the United States, I find, is not objected to; therefore I shall say little on that point. But I think it well worth while to state to this house how little the difficulties, even in the most difficult part of this system, appear to have been noticed by the honorable gentlemen in opposition. The Convention, sir, were perplexed with no part of this plan so much as with the mode of choosing the President of the United States. For my own part, I think the most unexceptionable mode, next after the one prescribed in this Constitution, would be that practised by the Eastern States and the state of New York; yet, if gentlemen object that an eighth part of our country forms a district too large for election, how much more would they object, if it was extended to the whole Union! On this subject, it was the opinion of a great majority in Convention, that the thing was impracticable; other embarrassments presented themselves.
Was the President to be appointed by the legislature? Was he to continue a certain time in office, and afterwards was he to become ineligible?
To have the executive officers dependent upon the legislative, would certainly be a violation of that principle, so necessary to preserve the freedom of republics, that the legislative and executive powers should be separate and independent. Would it have been proper that he should be appointed by the Senate? I apprehend that still stronger objections could be urged against that: cabalintriguecorruptionevery thing bad, would have been the necessary concomitant of every election.
To avoid the inconveniences already enumerated, and many others that might be suggested, the mode before us was adopted. By it we avoid corruption; and we are little exposed to the lesser evils of party intrigue; and when the government shall be organized, proper care will undoubtedly be taken to counteract influence even of that nature. The Constitution, with the same view, has directed, that the day on which the electors shall give their votes shall be the same throughout the United States. I flatter myself the experiment will be a happy one for our country.
The choice of this officer is brought as nearly home to the people as is practicable. With the approbation of the state legislatures, the people may elect with only one remove; for “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in Congress.” Under this regulation, it will not be easy to corrupt the electors, and there will be little time or opportunity for tumult or intrigue. This, sir, will not be like the elections of a Polish diet, begun in noise and ending in bloodshed.
If gentlemen will look into this article, and read for themselves, they will find that there is no well-grounded reason to suspect the President will be the tool of the Senate. “The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States. He may require the opinion, in writing, of the principal officers in each of the executive departments, upon any subject relative to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States.” Must the President, after all, be called the tool of the Senate? I do not mean to insinuate that he has more powers than he ought to have, but merely to declare that they are of such a nature as to place him above expression of contempt.
There is another power of no small magnitude intrusted to this officer. “He shall take care that the laws be faithfully executed.”
I apprehend that, in the administration of this governments it will not be found necessary for the Senate always to sit. I know some gentlemen have insinuated and conjectured that this will be the case; but I am inclined to a contrary opinion. If they had employment every day, no doubt but it might be the wish of the Senate to continue their session; but, from the nature of their business, I do not think it will be necessary for them to attend longer than the House of Representatives. Besides their legislative powers, they possess three others, viz., trying impeachments, concurring in making treaties, and in appointing Officers. With regard to their power in making treaties, it is of importance that it should be very seldom exercised. We are happily removed from the vortex of European politics, and the fewer and the more simple our negotiations with European powers, the better they will be. If such be the case, it will be but once in a number of years that a single treaty will come before the Senate. I think, therefore, that on this account it will be unnecessary to sit constantly. With regard to the trial of impeachments, I hope it is what will seldom happen. In this observation, the experience of the ten last years supports me. Now, there is only left the power of concurring in the appointment of officers; but care is taken, in this Constitution, that this branch of business may be done without their presence. The president is authorized to fill up all vacancies that may happen, during the recess of the Senate, by granting commissions, which shall expire at the end of their next session; so that, on the whole, the Senate need not sit longer than the House of Representatives, at the public expense; and no doubt, if apprehensions are entertained of the Senate, the House of Representatives will not provide pay for them one day longer than is necessary. But what (it will be asked) is this great power of the President? He can fill the offices only by temporary appointments. True; but every person knows the advantage of being once introduced into an office; it is often of more importance than the highest recommendation.
Having now done with the legislative and executive branches of this government, I shall just remark, that, upon the whole question of the executive, it appears that the gentlemen in opposition state nothing as exceptionable but the deficiency of powers in the President; but rather seem to allow some degree of political merit in this department of government.
I now proceed to the judicial department; and here, Mr. President, I meet an objection, I confess, I had not expected; and it seems it did not occur to the honorable gentleman (Mr. Findley) who made it until a few days ago.
He alleges that the judges, under this Constitution, are not rendered sufficiently independent, because they may hold other offices; and though they may be independent as judges, yet their other office may depend, upon the legislature. I confess, sir, this objection appears to me to be a little wire-drawn. In the first place, the legislature can appoint to no office; therefore, the dependence could not be on them for the office, but rather on the President and Senate; but then these, cannot add the salary, because no money can be appropriated but in consequence of a law of the United States. No sinecure can be bestowed on any judge but by the concurrence of the whole legislature and the President; and I do not think this an event that will probably happen.
It is true that there is a provision made in the Constitution of Pennsylvania, that the judges shall nor be allowed to hold any other office whatsoever; and I believe they are expressly forbidden to sit in Congress; but this, sir, is not introduced as a principle into this Constitution. There are many states in the Union, whose constitutions do not limit the usefulness of their best men, or exclude them from rendering those services to their country for which they are found eminently qualified. New York, far from restricting their chancellor, or judges of the Supreme Court, from a seat in Congress, expressly provide for sending them there on extraordinary occasions. In Connecticut, the judges are not precluded from enjoying other offices. Judges from many states have sat in Congress. Now, it is not to be expected that eleven or twelve states are to change their sentiments and practice, on this subject, to accommodate themselves to Pennsylvania.
It is again alleged, against this system, that the powers of the judges are too extensive; but I will not trouble you, sir, with a repetition of what I had the honor of delivering the other day. I hope the result of those arguments gave satisfaction, and proved that the judicial were commensurate with the legislative powers; that they went no farther, and that they ought to go so far.
The laws of Congress being made for the Union, no particular state can be alone affected; and as they are to provide for the general purposes of the Union, so ought they to have the means of making the provisions effectual over all that country included within the Union.
Eodem die, 1787, P. M.Mr. WILSON. I shall now proceed, Mr. President, to notice the remainder of the objections that have been suggested by the honorable gentlemen who oppose the system now before you.
We have been told, sir, by the honorable member from Fayette, (Mr. Smilie,) “that the trial by jury was intended to be given up and the civil law was intended to be introduced into its place, in civil cases.”
Before a sentiment of this kind was hazarded, I think, sir, the gentleman ought to be prepared with better proof in its support than any he has yet attempted to produce. It is a charge, sir, not only unwarrantable, but cruel: the idea of such a thing, I believe, never entered into the mind of a single member of that Convention; and l believe further, that they never suspected there would be found, within the United States, a single person that was capable of making such a charge. If it should be well founded, sir, they must abide by the consequences; but if (as I trust it will fully appear) it is ill founded, then he or they who make it ought to abide by the consequences.
Trial by jury forms a large field for investigation, and numerous volumes are written on the subject; those who are well acquainted with it may employ much time in its discussion; but in a country where its excellences are so well understood, it may not be necessary to be very prolix in pointing them out. For my part, I shall confine myself to a few observations in reply to the objections that have been suggested.
The member from Fayette (Mr. Smilie) has labored to infer that, under the Articles of Confederation, the Congress possessed no appellate jurisdiction; but this being decided against him by the words of that instrument, by which is granted to Congress the power of “establishing courts for receiving, and determining finally, appeals in all cases of capture, he next attempts a distinction, and allows the power of appealing from the decisions of the judges, but not from the verdict of a jury; but this is determined against him also by the practice of the states; for, in every instance which has occurred, this power has been claimed by Congress, and exercised by the Courts of Appeals. But what would be the consequence of allowing the doctrine for which he contends? Would it not be in the power of a jury, by their verdict, to involve the whole Union in a war? They may condemn the property of a neutral, or otherwise infringe the law of nations; in this case, ought their verdict to be without revisal? Nothing can be inferred from this to prove that trials by jury were intended to be given up. In Massachusetts, and all the Eastern States, their causes are tried by juries, though they acknowledge the appellate jurisdiction of Congress.
I think I am not now to learn the advantages of a trial by jury. It has excellences that entitle it to a superiority over any other mode, in cases to which it is applicable.
Where jurors can be acquainted with the characters of the parties and the witnesses,where the whole cause can be brought within their knowledge and their view,I know no mode of investigation equal to that by a jury: they hear every thing that is alleged; they not only hear the words, but they see and mark the features of the countenance; they can judge of weight due to such testimony; and moreover, it is a cheap and expeditious manner of distributing justice. There is another advantage annexed to the trial by jury; the jurors may indeed return a mistaken or ill-founded verdict, but their errors cannot be systematical.
Let us apply these observations to the objects of the judicial department, under this Constitution, I think it has been shown, already, that they all extend beyond the bounds of any particular state; but further, a great number of the civil causes there enumerated depend either upon the law of nations, or the marine law, that is, the general law of mercantile countries. Now, sir, in such cases, I presume it will not be pretended that this mode of decision ought to be adopted; for the law with regard to them is the same here as in every other country, and ought to be administered in the same manner. There are instances in which I think it highly probable that the trial by jury will be found proper; and if it is highly probable that it will be found proper, is it not equally probable that it will be adopted? There may be causes depending between citizens of different states; and as trial by jury is known and regarded in all the states, they will certainly prefer that mode of trial before any other. The Congress will have the power of making proper regulations on this subject, but it was impossible for the Convention to have gone minutely into it; but if they could, it must have been very improper, because alterations, as I observed before, might have been necessary; and whatever the Convention might have done would have continued unaltered, unless by an alteration of the Constitution. Besides, there was another difficulty with regard to this subject. In some of the states they have courts of chancery, and other appellate jurisdictions, and those states are as attached to that mode of distributing justice as those that have none are to theirs.
I have desired, repeatedly, that honorable gentlemen, who find fault, would be good enough to point out what they deem to be an improvement. The member from Westmoreland (Mr. Findley) tells us that the trial between citizens of different states ought to be by a jury of that state in which the cause of action rose. Now, it is easy to see that, in many instances, this would be very improper and very partial; for, besides the different manner of collecting and forming juries in the several states, the plaintiff comes from another state; he comes a stranger, unknown as to his character or mode of life, while the other party is in the midst of his friends, or perhaps his dependants. Would a trial by jury, in such a case, insure justice to the stranger? But again: I would ask that gentleman whether, if a great part of his fortune was in the hands of some person in Rhode Island, he would wish that his action to recover it should be determined by a jury of that country, under its present circumstances.
The gentleman from Fayette (Mr. Smilie) says that, if the Convention found themselves embarrassed, at least they might have done thus muchthey should have declared that the substance should be secured by Congress. This would be saying nothing unless the cases were particularized.
Mr. SMILIE. I said the Convention ought to have declared that the legislature should establish the trial by jury by proper regulations.
Mr. WILSON. The legislature shall establish it by proper regulations! So, after all, the gentleman has landed us at the very point from which we set out. He wishes them to do the very thing they have doneto leave it to the discretion of Congress. The fact, sir, is, nothing more could be done.
It is well known that there are some cases that should not come before juries; there are others, that, in some of the states, never come before juries, and in those states where they do come before them, appeals are found necessary, the facts re-examined, and the verdict of the jury sometimes is set aside; but I think, in all cases where the cause has come originally before a jury, that the last examination ought to be before a jury likewise.
The power of having appellate jurisdiction, as to facts, has been insisted upon as a proof, “that the Convention intended to give up the trial by jury in civil cases, and to introduce the civil law.” I have already declared my own opinion on this point, and have shown not merely that it is founded on reason and authority;the express declaration of Congress (Journals of Congress, March 6, 1779) is to the same purpose. They insist upon this power, as requisite to preserve the peace of the Union; certainly, therefore, it ought always to be possessed by the head of the confederacy. We are told, as an additional proof, that the trial by jury was intended to be given up; “that appeals are unknown to the common law; that the term is a civil-law term, and with it the civil law is intended to be introduced.” I confess I was a good deal surprised at this observation being made; for Blackstone, in the very volume which the honorable member (Mr. Smilie) had in his hand, and read us several extracts from, has a chapter entitled “Of Proceeding in the Nature of Appeals,”and in that chapter says, that the principal method of redress for erroneous judgments, in the king’s courts of record, is by writ of error to some superior “court of appeal.” (3 Blackstone, 406.) Now, it is well known that his book is a commentary upon the common law. Here, then, is a strong refutation of the assertion, “that appeals are unknown to the common law.”
I think these were all the circumstances adduced to show the truth of the assertion, that, in this Constitution, the trial by jury was intended to be given up by the late Convention in framing it. Has the assertion been proved? I say not; and the allegations offered, if they apply at all, apply in a contrary direction. I am glad that this objection has been stated, because it is a subject upon which the enemies of this Constitution have much insisted. We have now had an opportunity of investigating it fully; and the result is, that there is no foundation for the charge, but it must proceed from ignorance, or something worse.
I go on to another objection which has been taken to this system: “that the expense of the general government and of the state governments will be too great, and that the citizens will not be able to support them.” If the state governments are to continue as cumbersome and expensive as they have hitherto been, I confess it would be distressing to add to their expenses, and yet it might be necessary; but I think I can draw a different conclusion on this subject, from more conjectures than one. The additional revenue to be raised by a general government will be more than sufficient for additional expense; and a great part of that revenue may be so contrived as not to be taken from the citizens of this country; for I am not of opinion that the consumer always pays the impost that is laid on imported articles; it is paid sometimes by the importer, and sometimes by the foreign merchant who sends them to us. Had a duty of this nature been laid at the time of the peace, the greatest part of it would have been the contribution of foreigners. Besides, whatever is paid by the citizens is a voluntary payment.
I think, sir, it would be very easy and laudable to lessen the expenses of the state governments. I have been told (and perhaps it is not very far from the truth) that there are two thousand members of assembly in the several states. The business of revenue is done in consequence of requisitions from Congress; and whether it is furnished or not, it commonly becomes a subject of discussion. Now, when this business is executed by the legislature of the United States, I leave it to those who are acquainted with the expense of long and frequent sessions of Assembly, to determine the great saving that will take place. Let me appeal to the citizens of Pennsylvania, how much time is taken up in this state every year, if not every session, in providing for the payment of an amazing interest due on her funded debt. There will be many sources of revenue, and many opportunities for economy, when the business of finance shall be administered under one government: the funds will be more productive, and the taxes, in all probability, less burdensome, than they are now.
I proceed to another objection that is taken against the power, given to Congress, of raising and keeping up standing armies. I confess I have been surprised that this objection was ever made; but I am more so that it is still repeated and insisted upon. I have taken some pains to inform myself how the other governments of the world stand with regard to this power, and the result of my inquiry is, that there is not one which has not the power of raising and keeping up standing armies. A government without the power of defence! it is a solecism.
I well recollect the principle insisted upon by the patriotic body in Great Britain; it is, that, in time of peace, a standing army ought not to be kept up without the consent of Parliament. Their only apprehension appears to be, that it might be dangerous, were the army kept up without the concurrence of the representatives of the people. Sir, we are not in the millennium. Wars may happen; and when they do happen, who is to have the power of collecting and appointing the force, then become immediately and indispensably necessary?
It is not declared, in this Constitution, that the Congress shall raise and support armies. No, sir: if they are not driven to it by necessity, why should we suppose they would do it by choice, any more than the representatives of the same citizens in the state legislatures? For we must not lose sight of the great principle upon which this work is founded. The authority here given to the general government flows from the same source as that placed in the legislatures of the several states.
It may be frequently necessary to keep up standing armies in time of peace. The present Congress have experienced the necessity, and seven hundred troops are just as much a standing army as seventy thousand. The principle which sustains them is precisely the same. They may go further, and raise an army, without communicating to the public the they did this. When the commotions existed in Massachusetts, they gave orders for enlisting an additional body of two thousand men. I believe it is not generally known on what a perilous tenure we held our freedom and independence at that period, The flames of internal insurrection were ready to burst out in every quarter; they were formed by the correspondents of state officers, (to whom an allusion was made on a former day,) and from one end to the other of the continent, we walked on ashes, concealing fire beneath our feet; and ought Congress to be deprived of power to prepare for the defence and safety of our country? Ought they to be restricted from arming, until they divulge the motive which induced them to arm? I believe the power of raising and keeping up an army, in time of peace, is essential to every government. No government can secure its citizens against dangers, internal and external, without possessing it, and sometimes carrying it into execution. I confess it is a power in the exercise of which all wise and moderate governments will be as prudent and for bearing as possible. When we consider the situation of the United States, we must be satisfied that it will be necessary to keep up some troops for the protection of the western frontiers, and to secure our interest in the internal navigation of that country. It will be not only necessary, but it will be economical on the great scale. Our enemies, finding us invulnerable, will not attack us; and we shall thus prevent the occasion for larger standing armies. I am now led to consider another charge that is brought against this system.
It is said that Congress should not possess the power of calling out the militia, to execute the laws of the Union, suppress insurrections, and repel invasions; nor the President have the command of them when called out for such purposes.
I believe any gentleman, who possesses military experience, will reform you that men without a uniformity of arms, accoutrements, and discipline, are no more than a mob in a camp; that, in the field, instead of assisting, they interfere with one another. If a soldier drops his musket, and his companion, unfurnished with one, takes it up, it is of no service, because his cartridges do not fit it. By means of this system, a uniformity of arms and discipline will prevail throughout the United States.
I really expected that, for this part of the system at least, the framers of it would have received plaudits instead of censures, as they here discover a strong anxiety to have this body put upon an effective footing, and thereby, in a great measure, to supersede the necessity of raising or keeping up standing armies.
The militia formed under this system, and trained by the several states, will be such a bulwark of internal strength, as to prevent the attacks of foreign enemies. I have been told that, about the year 1744, an attack was intended by France upon Massachusetts Bay, but was given up on reading the militia law of the province.
If a single state could deter an enemy from such attempts, what influence will the proposed arrangement have upon the different powers of Europe?
In every point of view, this regulation is calculated to produce good effects. How powerful and respectable must the body of militia appear under general and uniform regulations! How disjointed, weak, and inefficient are they at present! I appeal to military experience for the truth of my observations.
The next objection, sir, is a serious one indeed; it was made by the honorable gentleman from Fayette, (Mr. Smilie.) “The Convention knew this was not a free government; otherwise, they would not have asked the powers of the purse and sword.” I would beg to ask the gentleman what free government he knows that has not the powers of both? There was, indeed, a government under which we unfortunately were for a few years past, that had them not; but it does not now exist. A government without these powers is one of the improvements with which opposition wish to astonish mankind.
Have not the freest governments those powers? And are they not in the fullest exercise of them? This is a thing so clear, that really it is impossible to find facts or reasons more clear, in order to illustrate it. Can we create a government without the power to act? How can it act without the assistance of men? And how are men to be procured without being paid for their services? Is not the one power the consequence of the other?
We are told,and it is the last and heaviest charge,”that this government is an aristocracy, and was intended so to be by the late Convention;” and we are told (the truth of which is not disputed) that an aristocratical government is incompatible with freedom. I hope before this charge is believed, some stronger, reasons will be given in support of it than any that have yet been produced.
The late Convention were assembled to devise some plan for the security, safety, and happiness of the people of the United States. If they have devised a plan that robs them of their power, and constitutes an aristocracy, they are the parricides of their country, and ought to be punished as such. What part of this system is it that warrants the charge?
What is an aristocratic government? I had the honor of giving a definition of it at the beginning of our debates. It is, sir, the government of a few over the manyelected by themselves, or possessing a share in the government by inheritance, or in consequence of territorial rights, or some quality independent of the choice of the people. This is an aristocracy, and this Constitution is said to be an aristocratical form of government; and it is also said that it was intended so to be by the members of the late Convention who framed it. What peculiar rights have been, reserved to any class of men, on any occasion? Does even the first magistrate of the United States draw to himself a single privilege or security that does not extend to every person throughout the United States? Is there a single distinction attached to him, in this system, more than there is to the lowest officer in the republic? Is there an office from which any one set of men whatsoever are excluded? Is there one of any kind in this system but is as open to the poor as to the rich? to the inhabitant of the country, as well as to the inhabitant of the city? And are the places of honor and emoluments confined to a few? And are these few the members of the late Convention? Have they made any particular provisions in favor of themselves, their relations, or their posterity? If they have committed their country to the demon of aristocracy, have they not committed themselves also, with every thing they held near and dear to them?
Far, far other is the genius of this system. I have had already the honor of mentioning its general nature; but I will repeat it, sir. In its principle it is purely democratical; but its parts are calculated in such manner as to obtain those advantages, also, which are peculiar to the other forms of government in other countries. By appointing a single magistrate, we secure strength, vigor, energy, and responsibility the executive department. By appointing a Senate, the members of which are elected for six years, yet, by a rotation already taken notice of, changing every second year, we secure the benefit of experience, while, on the other hand, we avoid the inconveniences that arise from a long and detached establishment. This body is periodically renovated from the people, like a tree, which, at the proper season, receives its nourishment from its parent earth.
In the other branch of the legislature, the House of Representatives, shall we not have the advantages of benevolence and attachment to the people, whose immediate representatives they are?
A free government has often been compared to a pyramid. This allusion is made with peculiar propriety in the system before you; it is laid on the broad basis of the people; its powers gradually rise, while they are confined, in proportion as they ascend, until they end in that most permanent of all forms. When you examine all its parts, they will invariably be found to preserve that essential mark of free governmentsa chain of connection with the people.
Such, sir, is the nature of this system of government; and the important question at length presents itself to our viewShall it be ratified, or shall it be rejected, by this Convention? In order to enable us still further to form a judgment on this truly momentous and interesting point, on which all we have, or can have, dear to us on earth is materially depending, let us for a moment consider the consequences that will result from one or the other measure. Suppose we reject this system of government; what will be the consequence? Let the farmer say, he whose produce remains unasked for; nor can he find a single market for its consumption, though his fields are blessed with luxuriant abundance. Let the manufacturer, and let the mechanic, say; they can feel, and tell their feelings. Go along the wharves of Philadelphia, and observe the melancholy silence that reigns. I appeal not to those who enjoy places and abundance under the present government; they may well dilate upon the easy and happy situation of our country. Let the merchants tell you what is our commerce; let them say what has been their situation since the return of peacean era which they might have expected would furnish additional sources to our trade, and a continuance, and even an increase, to their fortunes. Have these ideas been realized? or do they not lose some of their capital in every adventure, and continue the unprofitable trade from year to year, subsisting under the hopes of happier times under an efficient general government? The ungainful trade carried on by our merchants has a baneful influence on the interests of the manufacturer, the mechanic, and the farmer; and these, I believe, are the chief interests of the people of the United States.
I will go further. Is there now a government among us that can do a single act that a national government ought to do? Is there any power of the United States that can command a single shilling? This is a plain and a home question.
Congress may recommend; they can do no more: they may require; but they must not proceed one step further. If things are bad now,and that they are not worse is only owing to hopes of improvement or change in the system,will they become better when those hopes are disappointed? We have been told, by honorable gentlemen on this floor, (Mr. Smilie, Mr. Findley, and Mr. Whitehill,) that it is improper to urge this kind of argument in favor of a new system of government, or against the old one: unfortunately, sir, these things are too severely felt to be omitted; the people feel them; they pervade all classes of citizens, and every situation from New Hampshire to Georgia: the argument of necessity is the patriot’s defence, as well as the tyrant’s plea.
Is it likely, sir, that, if this system of government is rejected, a better will be framed and adopted? I will not expatiate on this subject; but I believe many reasons will suggest themselves to prove that such expectation would be illusory. If a better could be obtained at a future time, is there any thing essentially wrong in this? I go further. Is there any thing wrong that cannot be amended more easily by the mode pointed out in the system itself, than could be done by calling convention after convention, before the organization of the government? Let us now turn to the consequences that will result if we assent to and ratify the instrument before you. I shall trace them as concisely as I can, because I have trespassed already too long on the patience and indulgence of the house.
I stated, on a former occasion, one important advantage; by adopting this system, we become a nation; at present, we are not one. Can we perform a single national act? Can we do any thing to procure us dignity, or to preserve peace and tranquillity? Can we relieve the distress of our citizens? Can we provide for their welfare or happiness? The powers of our government are mere sound. If we offer to treat with a nation, we receive this humiliating answer: “You cannot, in propriety of language, make a treaty, because you have no power to execute it.” Can we borrow money? There are too many examples of unfortunate creditors existing, both on this and the other side of the Atlantic, to expect success from this expedient. But could we borrow money, we cannot command a fund, to enable us to pay either the principal or interest; for, in instances where our friends have advanced the principal, they have been obliged to advance the interest also, in order to prevent the principal from being annihilated in their hands by depreciation. Can we raise an army? The prospect of a war is highly probable. The accounts we receive, by every vessel from Europe, mention that the highest exertions are making in the ports and arsenals of the greatest maritime powers. But whatever the consequence may be, are we to lie supine? We know we are unable, under the Articles of Confederation, to exert ourselves; and shall we continue so, until a stroke be made on our commerce, or we see the debarkation of a hostile army on our unprotected shores? Who will guaranty that our property will not be laid waste, that our towns will not be put under contribution, by a small naval force, and subjected to all the horror and devastation of war? May not this be done without opposition, at least effectual opposition, in the present situation of our country? There may be safety over the Appalachian Mountains, but there can be none on our sea-coast. With what propriety can we hope our flag will be respected, while we have not a single gun to fire in its defence?
Can we expect to make internal improvement, or accomplish any of those great national objects which I formerly alluded to, when we cannot find money to remove a single rock out of a river?
This system, sir, will at least make us a nation, and put it in the power of the Union to act as such. We shall be considered as such by every nation in the world. We shall regain the confidence of our citizens, and command the respect of others.
As we shall become a nation, I trust that we shall also form a national character, and that this character will be adapted to the principles and genius of our system of government: as yet we possess none; our language, manners, customs, habits, and dress, depend too much upon those of other countries. Every nation, in these respects, should possess originality; there are not, on any part of the globe, finer qualities for forming a national character, than those possessed by the children of America. Activity, perseverance, industry, laudable emulation, docility in acquiring information, firmness in adversity, and patience and magnanimity under the greatest hardships;from these materials, what a respectable national character may be raised! In addition to this character I think there is strong reason to believe that America may take the lead in literary improvements and national importance. This is a subject which, I confess, I have spent much pleasing time in considering. That language, sir, which shall become most generally known in the civilized world, will impart great importance over the nation that shall use it. The language of the United States will in future times, be diffused over a greater extent of country than any other that we know. The French, indeed, have made laudable attempts toward establishing a universal language; but, beyond the boundaries of France, even the French language is not spoken by one in a thousand. Besides the freedom of our country, the great improvements she has made, and will make, in the science of government, will induce the patriots and literati of every nation to read and understand our writings on that subject; and hence it is not improbable that she will take the lead in political knowledge.
If we adopt this system of government, I think we may promise security, stability, and tranquillity, to the governments of the different states. They would not be exposed to the danger of competition on questions of territory, or any other that have heretofore disturbed them. A tribunal is here found to decide, justly and quietly, any intefering claim; and now is accomplished What the great mind of Henry IV. of France had in contemplationa system of government for large and respectable dominions, united and bound together, in peace, under a superintending head, by which all their differences may be accommodated, without the destruction of the human race. We are told by Sully that this was the favorite pursuit of that good king during the last years of his life; and he would probably have carried it into execution, had not the dagger of an assassin deprived the world of his valuable life. I have, with pleasing emotion, seen the wisdom and beneficence of a less efficient power under the Articles of Confederation, in the determination of the controversy between the states of Pennsylvania and Connecticut; but I have lamented that the authority of Congress did not extend to extinguish, entirely, the spark which has kindled a dangerous flame in the district of Wyoming.
Let gentlemen turn their attention to the amazing consequences which this principle will have in this extended country. The several states cannot war with each other; the general government is the great arbiter in contentions between them; the whole force of the Union can be called forth to reduce an aggressor to reason. What a happy exchange for the disjointed, contentious state sovereignties!
The adoption of this system will also secure us from danger, and procure us advantages from foreign nations. This, in our situation, is of great consequence. We are still an inviting object to one European power at least; and, if we cannot defend ourselves, the temptation may become too alluring, to be resisted. I do not mean that, with an efficient government, we should mix with the commotions of Europe. No, sir, we are happily removed from them, and are not obliged to throw ourselves into the scale with any. This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war. I cannot forbear, on this occasion, the pleasure of mentioning to you the sentiments of the great and benevolent man, whose works I have already quoted on another subject. Mr. Necker has addressed this country in language important and applicable in the strictest degree to its situation and to the present subject. Speaking of war, and the greatest caution that all nations ought to use in order to avoid its calamities,”And you rising nation,” says he, “whom generous efforts have freed from the yoke of Europe! let the universe be struck with still greater reverence at the sight of the privileges you have acquired, by seeing you continually employed for the public facility: do not offer it as a sacrifice at the unsettled shrine of political ideas, and of the deceitful combinations of warlike ambition; avoid, or, at least, delay, participating in the passions of our hemisphere; make your own advantage of the knowledge which experience alone has given to our old age, and preserve, for a long time, the simplicity of childhood; in short, honor human nature, by showing that, when left to its own feelings, it is still capable of those virtues that maintain public order, and of that prudence which insures public tranquillity.”
Permit me to offer one consideration more, that ought to induce our acceptance of this system. I feel myself lost in the contemplation of its magnitude. By adopting this system, we shall probably lay a foundation for erecting temples of liberty in every part of the earth. It has been thought by many, that on the success of the struggle America has made for freedom will depend the exertions of the braved and, enlightened of other nations. The advantages resulting from this system will not be confined to the United States, but will draw from Europe many worthy characters, who pant for the enjoyment of freedom. It will induce princes, in order to preserve their subjects, to restore to them a portion of that liberty of which they have for many ages been deprived. It will be subservient to the great designs of Providence with regard to this globethe multiplication of mankind, their improvement in knowledge, and their advancement in happiness.
Mr. M’KEAN. Sir, you have under your consideration a matter of Very great weight and importance, not only to the present generation, but to posterity; for where the rights and liberties of the people are concerned, there certainly it is fit to proceed with the utmost caution and regard. You have done so hitherto. The power of this Convention being derived from the people of Pennsylvania, by a positive, and voluntary grant, cannot be extended farther than what this positive grant hath conveyed. You have been chosen by the people for the sole purpose of “assenting to and ratifying the Constitution proposed for the future government of the United States, with respect to their general and common concerns,” or of rejecting it. It is a sacred trust; and as, on the one hand, you ought to weigh well the innovations it will create in the governments of the individual states, and the dangers which may arise by its adoption, so, upon the other hand, you ought fully to consider the benefits it may promise, and the consequences of a rejection of it. You have hitherto acted strictly conformably to your delegated power; you have agreed that a single question can come before you; and it has been accordingly moved that you resolve “to assent to and ratify this Constitution.” Three weeks have been spent in hearing the objections that have been made against it, and it is now time to determine whether they are of such a nature as to overbalance any benefits or advantages that may be derived to the state of Pennsylvania by your accepting it.
Sir, I have as yet taken up but little of your time; notwithstanding this, I will endeavor to contract what occurs to me on the subject. And in what I have to offer, I shall observe this method: I will first consider the arguments that may have been used against this Constitution, and then give my reasons why I am for the motion.
The arguments against the Constitution are, I think, chiefly these:
First. That the elections of representatives and senators are not frequent enough to insure responsibility to their constituents.
Second. That one representative for thirty thousand persons is too few.
Third. The Senate have a share in the appointment of certain officers, and are to be the judges on the impeachment of such officers. This is blending the executive with the legislative and judicial department, and is likely to screen the offenders impeached, because of the concurrence of a majority of the Senate in their appointment.
Fourth. That the Congress may, by law, deprive the electors of a fair choice of their representatives, by fixing improper times, places, and modes of election.
Fifth. That the powers of Congress are too large, particularly in laying internal taxes and excises, because they may lay excessive taxes, and leave nothing for the support of the state governments.
In raising and supporting armies; and that the appropriation of money, for that use, should not be for so long a term as two years.
In calling forth the militia on necessary occasions; because they may call them from one end of the continent to the other, and wantonly harass them; besides, they may coerce men to act in the militia, whose consciences are against bearing arms in any case.
In making all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof;
And in declaring that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.
The migration or importation of such persons as any of the states shall admit shall not be prohibited prior to 1808, nor a tax or duty imposed on such importation exceeding ten dollars for each person.
Sixth. That the whole of the executive power is not lodged in the President alone, so that there might be on responsible person.
That he has the sole power of pardoning offences against the United States, and may therefore pardon traitors, for treasons committed in consequence of his own ambitious and wicked projects, or those of the Senate.
That the Vice-President is a useless officer, and, being an executive officer, is to be president of the Senate, and in case of a division is to have the casting voice.
Seventh. The judicial power shall be vested in one Supreme Court. An objection is made, that the compensation for the services of the judges shall not be diminished during their continuance in office; and this is contrasted with the compensation to the President, which is to be neither increased nor diminished during the period for which he shall have been elected; but that of the judges maybe increased, and the judges may hold other offices of a lucrative nature, and their judgments be thereby warped.
That in all the cases enumerated, except where the Supreme Court has original jurisdiction, “they shall have appellate jurisdiction both as to law and facts, with such exceptions, and under such regulations, as the Congress shall make.” From hence is inferred that the trial by jury is not secured.
That they have jurisdiction between citizens of different states.
Eighth. That there is no bill or declaration of rights in this Constitution.
Ninth. That this is a consolidation of the several states, and not a confederation.
Tenth. It is an aristocracy, and was intended to be so by the framers of it.
The first objection that I heard advanced against this Constitution, I say, sir, was, that “the elections of representatives and senators are not frequent enough to insure responsibility to their constituents.”
This is a subject that most men differ about; but there are more considerations than that of mere responsibility. By this system the House of Representatives is composed of persons chosen every second year by the people of the several states; and the senators every six years by the legislatures. Whether the one or the other of these periods is of too long duration, is a question to which various answers will be given. Some persons are of opinion, that three years in the one case, and seven in the other, would be a more eligible term than that adopted in this Constitution. In Great Britain, we find the House of Commons elected for seven years; the House of Lords is perpetual, and the king never dies. The Parliament of Ireland is octennial. In various other parts of the British dominions, the House of Representatives sit during the royal pleasure, and have been continued twenty years. This, sir, is a term undoubtedly too long. In a single state, I think annual elections most proper; but then there ought to be more branches in the legislature than one. An annual legislature, possessed of supreme power, may be properly termed an annual despotism; and, like an individual, they are subject to caprice, and act as party spirit or spleen dictates; hence that instability to the laws which is the bane of republican governments.
The framers of this Constitution wisely divided the legislative department between the two houses, subject to the qualified negative of the President of the United States, though this government embraces only enumerated powers. In a single state, annual elections may be proper; the more so, when the legislative powers extend to all cases; but in such an extent of country as the United States, and when the powers are circumscribed, there is not that necessity, nor are the objects of the general government of that nature as to be acquired immediately by every capacity. To combine the various interests of thirteen different states, requires more extensive knowledge than is necessary for the legislature of any one of them. Two years are therefore little enough for the members of the House of Representatives to make themselves fully acquainted with the views, the habits, and interests, of the United States. With respect to the Senate, when we consider the trust reposed in them, we cannot hesitate to pronounce that the period assigned to them is short enough; they possess, in common with the House of Representatives, legislative power; with its concurrence they also have power to declare war; they are joined with the President in concluding treaties; it therefore behoves them to be conversant with the politics of the nations of the world, and the dispositions of the sovereigns and their ministers; this requires much reading and attention And, believe me, the longer a man bends his study to any particular subject, the more likely he is to be master of it. Experience and practice will assist genius and education. I therefore think the time allowed, under this system, to both houses, to be extremely proper. This objection has been made repeatedly; but it can only have weight with those who are not at the pains of thinking on the subject. When any thing, sir, new or great, is done, it is very apt to create a ferment among those out of doors, who, as they cannot always enter into the depth and wisdom of counsels, are too apt to censure what they do not understand; upon a little reflection and experience, the people often find that to be a singular blessing which at first they deemed a curse.
Second. “That one representative for thirty thousand persons is too few.”
There will be, sir, sixty-five in the House of Representatives, and twenty-six in the Senatein all ninety-one, who, together with the President, are to make laws in the several particular matters intrusted to them, and which are all enumerated and expressed. I think the number sufficient at the present, and in three years’ time, when a census or actual enumeration must take place, they will be increased, and in less than twenty-five years they will be more than double. With respect to this, different gentlemen in the several states will differ, and at least the opinion of the majority must govern.
Third. “The senators have a share in the appointment of certain officers, and are to be the judges on the impeachment of such officers. This is blending the executive with the legislative and judicial department, and is likely to screen the offenders impeached, because of the concurrence of a majority of the Senate in their appointment.”
The President is to nominate to office, and, with the advice and consent of the Senate, appoint officers, so that he is the responsible person; and when any such impeachment shall be tried, it is more than probable that not one of the Senate, who concurred in the appointment, will be a senator, for the seats of a third part are to be vacated every two years, and of all in six.
As to the senators having a share in the executive power, so far as to the appointment of certain officers, I do not know where this restraint on the President could be more safely lodged. Some may think a privy counsellor might have been chosen by every state: but this could little amend the matter, if any, and it would be a considerable additional expense to the people. Nor need the Senate be under any necessity of sitting constantly, as has been alleged; for there is an express provision made to enable the President to fill up all vacancies that may happen during their recessthe commissions to expire at the end of the next session.
As to the impeachments, the objection is much stronger against the supreme executive council of Pennsylvania.
The House of Lords, in Great Britain, are judges in the last resort in all civil causes, and, besides, have the power of trying impeachments.
On the trial of impeachments, the senators are to be under the sanction of an oath or affirmation, besides the other ties upon them to do justice; and the basis is more likely to be against the officer accused than in his favor, for there are always more persons disobliged, than the contrary, when an office is given away, and the expectants of office are more numerous than the possessors.
Fourth. “That the Congress may by law deprive the electors of a fair choice of their representatives, by fixing improper times, places, and modes of election.”
Every House of Representatives are of necessity to be the judges of the elections, returns, and qualifications of its own members. It is therefore their province, as well as duty, to see that they are fairly chosen, and are the legal members; for this purpose, it is proper they should have it in their power to provide that the times, places, and manner of election should be such as to insure free and fair elections.
Annual Congresses are expressly secured; they have only a power given to them to take care that the elections shall be at convenient and suitable times and places, and conducted in a proper manner; and I cannot discover why we may not intrust these particulars to the representatives of the United States with as much safety as to those of individual states.
In some states the electors vote viva voce, in others by ballot. They ought to be uniform, and the elections held on the same day throughout the United States, to prevent corruption or undue influence. Why are we to suppose that Congress will make a bad use of this power, more than the representatives in the several states?
It is said, “that the powers of Congress, under this Constitution, are too large, particularly in laying internal taxes and excises, because they may lay excessive, taxes, and leave nothing for the support of the state governments.” Sir, no doubt but you will discover, on consideration, the necessity of extending these powers to the government of the Union. If they have to borrow money, they are certainly bound, in honor and conscience, to pay the interest, until they pay the principal, as well to the foreign as to the domestic creditor; it therefore becomes our duty to put it in their power to be honest. At present, sir, this is not the case, as experience has fully shown. Congress have solicited and required the several states to make provision for these purposes. Has one state paid its quota? I believe not one of them. And what has been the result? Foreigners have been compelled to advance money to enable us to pay the interest due them on what they furnished to Congress during the late war. I trust we have had experience enough to convince us that Congress ought no longer to depend upon the force of requisition. I heard it urged, that Congress ought not to be authorized to collect taxes, until a state had refused to comply with this requisition. Let us examine this position. The engagements entered into by the general government render it necessary that a certain sum shall be paid in one year; notwithstanding this, they must not have power to collect it until the year expires, and then it is too late. Or is it expected that Congress will borrow the deficiency? Those who lent us, in our distress, have little encouragement to make advances again to our government; but give the power to Congress to lay such taxes as may be just and necessary, and public credit will revive. Yet, because they have the power to lay taxes and excise, does it follow that they must? For my part, I hope it may not be necessary; but if it is, it is much easier for the citizens of the United States to contribute their proportion, than for a few to bear the weight of the whole principal and interest of the domestic debt; and there is perfect security on this head, because the regulation must equally affect every state, and the law must originate with the immediate representatives of the people, subject to the investigation of the state representatives. But is the abuse an argument against the use of power? I think it is not; and, upon the whole, I think this power wisely and securely lodged in the hands of the general government; though, on the first view of this work, I was of opinion they might have done without it; but, sir, on reflection, I am satisfied that it is not only proper, but that our political salvation may depend upon the exercise of it.
The next objection is against “the power of raising and supporting armies; and the appropriation of money for that use should not be for so long a term as two years.” Is it not necessary that the authority superintending the general concerns, of the United States should have the power of raising and supporting armies? Are we, sir, to stand defenceless amidst conflicting nations? Wars are inevitable, but war cannot be declared without the consent of the immediate representatives of the people. They must also originate the law which appropriates the money for the support of the army; yet they can make no appropriation for a longer term than two years: but does it follow, because they may make appropriations for that period, that they must, or even will, do it? The power of raising and supporting armies is not only necessary, but is enjoyed by the present Congress, who also judge of the expediency or necessity, of keeping them up. In England there is a standing army: though in words it is engaged but for one year, yet is it not kept constantly up? Is there a year that Parliament refuses to grant them supplies? Though this is done annually it might be done for any longer term. Are not their officers commissioned for life? And when they exercise this power with so much prudence, shall the representatives of this country be suspected the more, because they are restricted to two years?
It is objected that the powers of Congress are too large, because “they have the power of calling forth the militia on necessary occasions, and may call them from one end of the continent to the other, and wantonly harass them; besides, they may coerce men to act in the militia whose consciences are against bearing arms in any case.” It is true, by this system power is given to Congress to organize, arm, and discipline the militia, but every thing else is left to the state governments; they are to officer and train them. Congress have also the power of calling them forth for the purpose of executing the laws of the Union, suppressing insurrections, and repelling invasions; but can it be supposed they would call them, in such case, from Georgia to New Hampshire? Common sense must oppose the idea.
Another objection was taken from these words of the Constitution”to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof.” And, in declaring “that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land,” this has at last been conceded, that, though it is explicit enough, yet it gives to Congress no further powers than those already enumerated. Those that first said it gave to Congress the power of superseding the state governments, cannot persist in it; for no person can, with a tolerable face, read the clauses over, and infer that such may be the consequence.
Provision is made that Congress shall have power to prohibit the importation of slaves after the year 1808; but the gentlemen in opposition accuse this system of a crime, because it has not prohibited it at once. I suspect those gentlemen are not well acquainted with the business of the diplomatic body, or they would know that an agreement might be made that did not perfectly accord with the will and pleasure of any one person. Instead of finding fault with what has been gained, I am happy to see a disposition in the United States to do so much.
The next objections have been against the executive power. It is complained of, “because the whole of the executive power is not lodged in the President alone, so that there might be one responsible person. He has the sole powers of pardoning offences against the United States, and may therefore pardon traitors, for treasons committed in consequence of his own ambitious or wicked projects, or those of the Senate.”
Observe the contradiction, sir, in these two objections. One moment the system is blamed for not leaving, all executive authority to the President alone, the next it is censured for giving him the sole power to pardon traitors. I am glad to hear these objections made, because it forebodes an amendment in that body in which amendment is necessary. The President of the United States must nominate to all offices, before the persons can be chosen; he here consents and becomes liable. The executive council of Pennsylvania appoint officers by ballot, which effectually destroys responsibility. He may pardon offences; and hence it is inferred that he may pardon traitors, for treason committed in consequence of his own ambitious and wicked projects. The executive council of Pennsylvania can do the same. But the President of the United States may be impeached before the Senate, and punished for his crimes.
“The Vice-President is a useless officer.” Perhaps the government might be executed without him, but there is a necessity of having a person to preside in the Senate, to continue a full representation of each state in that body. The chancellor of England is a judicial officer; yet he sits in the House of Lords.
The next objection is against the judicial department. “The judicial power shall be vested in one Supreme-Court.” An objection is made that the compensation for the services of the judges shall not be diminished during their continuance in office; and this is contrasted with the compensation of the President, which is to be neither increased nor diminished during the period for which he shall be elected. But that of the judges may be increased, and the judge may hold other offices of a lucrative nature, and his judgment be thereby warped.
Do gentlemen not see the reason why this difference is made? Do they not see that the President is appointed but for four years, whilst the judges may continue for life, if they shall so long behave themselves well? In the first case, little, alteration can happen in the value of money; but in the course of a man’s life, a very great one may take place from the discovery of silver and gold mines, and the great influx of those metals; in which case an increase of salary may be requisite. A security that their compensation, shall not be lessened, nor they have to look up to every session for salary, will certainly tend to make those officers more easy and independent.
“The judges may hold other offices of a lucrative nature.” This part of the objection reminds me of the scheme that was fallen upon, in Pennsylvania, to prevent any person from taking up large tracts of land. A law was passed restricting the purchaser to a tract not exceeding three hundred acres; but all the difference it made was, that the land was taken up by several patents, instead of one, and the wealthy Could procure, if they chose it, three thousand acres. What though the judges could hold no other office, might they not have brothers, children, and other relations, whom they might wish to see placed in the offices forbidden to themselves? I see no apprehensions that may be entertained on this account.
That, in all cases enumerated, except where the Supreme Courts has original jurisdiction, “they shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.” From this it is inferred that the trial by jury is not secured; and an objection is set up to the system, because they have jurisdiction between citizens of different states. Regulations, under this head, are necessary; but the Convention could form no one that would have suited each of the United States. It has been a subject of amazement tome to hear gentlemen contend that the verdict of a jury shall be without revision in all cases. Juries are not infallible because they are twelve in number. When the law is so blended with the fact as to be almost inseparable, may not the decision of a jury be erroneous? Yet, notwithstanding this, trial by jury is the best mode that is known. Appellate jurisdiction, sir, is known in the common law, and causes are removed from inferior courts, by writs of error, into some court of appeal. It is said that the lord chancellor, in all cases, sends down to the lower courts when he wants to determine a fact; but that opinion is not well founded, because he determines nineteen out of twenty without the intervention of any jury. The power to try causes between citizens of different states was thought by some gentlemen invidious; but I apprehend they must see the necessity of it, from what has been already said by my honorable colleague.
“That there is no bill or declaration of rights in this Constitution.”
To this I answer, Such a thing has not been deemed essential to liberty, excepting in Great Britain, where there is a king and a House of Lords, quite distinct, with respect to power and interest, from the rest of the people; or, in Poland, the pacta conventus, which the king signs before he is crowned; and in six states of the American United States.
Again, because it is unnecessary; for the powers of Congress, being derived from the people in the mode pointed out by this Constitution, and being therein enumerated and positively granted, can be no other than what this positive grant conveys. (Locke on Civil Government, vol. ii, b. 2, chap. 2, sect. 140, and in the 13th chap., sect, 152.)
With respect to executive officers, they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them.
“That this is a consolidation of the several states, and not a confederation.’
To this I answer, the name is immaterial; the thing unites the several states, and makes them like one, in particular instances and for particular purposeswhich is what is ardently desired by most of the sensible men in this country. I care not whether it is called a consolidation, confederation, or national government, or by what other name, if it is a good government, and calculated to promote the blessings of liberty, tranquility, and happiness.
“It is an aristocracy, and was intended to be so by the framers of it.”
Here, again, sir, the name is immaterial, if it is a good system of government for the general and common concerns of the United States. But after the definition which has already been given of an aristocratic government, it becomes unnecessary to repeat arguments to prove that this system does not establish an aristocracy.
There have been some other small objections to, or rather criticisms on, this work, which I rest assured the gentlemen who made them will, on reflection, excuse me in omitting to notice.
Many parts of this Constitution have been wrested and tortured, in order to make way for Shadowy of objections, which must have been observed by every auditor. Some other things were said with acrimony; they seemed to be personal; I heard the sound, but it Was inarticulate. I can compare it to nothing better than the feeble noise occasioned by the working of small beer.
It holds in argument, as well as nature, that destructio unius est generatic alteriusthe refutation of an argument be gets a proof.
The objections to this Constitution having been answered, and all done away, it remains pure and unhurt; and this alone is a forcible argument of its goodness.
Mr. President, I am sure nothing can prevail with me to give my vote for ratifying this Constitution, but a convention, from comparing the arguments on both sides, that the not doing it is liable more inconvenience and danger than the doing it.
1. If you do it, you strengthen the government and people of these United States, and will thereby have the wisdom and assistance of all the states.
2. You will settle, establish, and firmly perpetuate, our independence, by destroying the vain hopes, of all its enemies, both at home and abroad.
3. You will encourage your allies to join with you; nay, to depend, that what hath been stipulated, or shall hereafter be stipulated and agreed upon, will be punctually performed, and other nations will be induced to enter into treaties with you.
4. It will have a tendency to break our parties and divisions, and, by that means, lay a firm and solid, foundation for the future tranquillity and happiness of the United States in general, and of this state in particular.
5. It will invigorate our commerce, and encourage shipbuilding.
6. It will have a tendency not only to prevent any other nation from making war upon you, but from offering you any wrong, or even insult.
In short, the advantages that must result from it are obviously so numerous and important, and have been so fully and ably pointed out by others, that it appears to be unnecessary to enlarge on this head.
Upon the whole, sir, the law has been my study from my infancy, and my only profession. I have gone through the circle of offices, in the legislative, executive, and judicial departments of government; and from all my study, observation, and experience, I must declare that, from a full examination and due consideration of this system, it appears to me the best the world has yet seen.
I congratulate you on the fair prospect of its being adopted, and am happy in the expectation of seeing accomplished what has been long my ardent wishthat you will hereafter have a salutary permanency in magistracy, and stability in the laws.