Pennsylvania and the Federal Constitution, 1787-1788: Chapter IV
Pennsylvania and the Federal Constitution
Edited by John Bach McMaster and Frederick D. Stone
CHAPTER IV: THE DEBATE IN THE CONVENTION
The election of delegates to represent Philadelphia in the State Convention to consider the constitution took place at the State House on Tuesday, November 6th. All went quietly during the day. But at midnight a crowd gathered, and a riot occurred before the now famous house of Mr. Alexander Boyd on Sixth street. The occasion of the riot was the presence in the house of the Anti-Federal Junto against whom the voters had been muttering threats all day. What happened was stated to the Assembly a few days later by one of the members insulted.
Saturday, November 20th.
The house met pursuant to adjournment.
The order of the day for electing a state treasurer was called up, but Mr. M’ Lean expressing a desire to state a subject of some importance, that order was postponed to give him an opportunity to address the house, which he did in the following manner:
Mr. M’Lean. It is with the greatest diffidence I rise to represent some facts, which in my opinion, respect more the dignity, and honor of this house, than the personal safety and resentments of those who are individually interested. As a member of the legislature, it is my duty to guard and protect its privileges in whatever form they may be attacked; and even Mr. Speaker, when so humble a member as he that now addresses you, has been made the means of offering an insult to the house, the offence, which is but trivial when we consider the man, becomes of great importance when we consider his office. For these reasons therefore, I think myself bound to lay before the house, the circumstances of complaint to which I have alluded ; but to their wisdom I shall implicitly submit the measures which are proper to be pursued upon the occasion. About midnight on Tuesday last, a great concourse of people assembled opposite to the house of Mr. Alexander Boyd, in which myself, several other members of this house, and several members of the supreme executive council lodged, and at that time had retired to our respective chambers. The persons thus assembled made a considerable noise in the streets, and at length assailed Mr. Boyd’s house, beating loudly at the door, and breaking the windows, thro’ which they threw some very large stones, etc., exclaiming repeatedly, “here the damned rascals live who did all the mischief,” and using other words highly reproachful to the members of this house and of the executive council. What were the motives of the rioters for this conduct, I do not know, nor am I solicitous to enquire; but having stated these facts, I am confident every gentleman here is ready to express his disapprobation of the proceedings, so grossly in violation of the law of the land, and the established privilege of this house.
Mr. Findley. Though I am aware, Mr. Speaker, that the fullest credit will be given to the information of the member who has just spoken, and that upon this subject no other evidence is necessary to support his allegation, yet I have been solicitous to put the authenticity of the facts which have been stated beyond all doubt, and therefore beg leave to present two affidavits, one made by Mr. Boyd, whose house has been attacked, and the other by Mr. Baird, a member of the supreme executive council.
The clerk then read the affidavits, which were as follows:
On this ninth day of November, in the year of our Lord one thousand seven hundred and eighty-seven, before me Plunket Fleeson, Esquire, being one of the justices of peace, in the city and county of Philadelphia, residing in the said city; cometh Alexander Boyd, of Sixth street, from Delaware river in the said city, Esquire, who being .solemnly sworn with uplifted hand, doth depose, testify and say that on the night of Tuesday last, being the sixth of this present month of November, this depondent, together with the honorable John Smilie, John Baird and Abraham Smith, members of the supreme executive council; and James M’Calmont, James M’ Lean, John Piper and William Findley, Esquires, representatives in the general Assembly of the State of Pennsylvania, who lodge with this deponent, were gone to bed in his dwelling in Sixth street aforesaid: that this deponent was fallen asleep, when about 12 o’clock at midnight, a great noise in the adjoining street, awaked this deponent, who thereupon immediately jumped out of his bed, and raising the sash of a window towards the street of the the third floor of the house, he saw a considerable number of men in the street, of whom twelve or fifteen were nigh to the door of this deponent’s dwelling, and that divers of the persons, so as aforesaid assembled, did then and there speak reproachfully of the gentlemen who were lodged with this deponent, and did say that here is the house where the damned rascals lodge who do all the devilment, or words to the like effect; adding that they ought to be all hanged. That hearing the window rise and seeing this deponent at the window, as this deponent believes, this deponent hear one of the same persons say. ‘There is one of the damned rascals putting his head out of the window.’ That a man who lives nigh to this deponent, at this moment coming out of this dwelling, and approaching the mob aforesaid, the persons who composed the same ran northerly towards Mulberry street, and this deponent saw them no more. That this deponent was awaked as aforesaid, by the noise aforesaid, and by the throwing of large stones against the front door of his dwelling, some of which stones drove in the sash over the same door and fell in his entry, and one of them was at least ten pounds in weight. And that this deponent was not able to distinguish any of the aforesaid rioters, so as to know their names, or who they or any of them were. And further this deponent saith not.”
“On this ninth day of November, Anno Domini one thousand seven hundred and eighty-seven, before me, Plunket Fleeson, Esq., being one of the justices of the peace in and for the city and county of Philadelphia, and residing in the same city, cometh the Honorable John Baird, who is one of the members of the supreme executive council of this commonwealth, and the said John, being duly sworn on the holy gospel, doth depose, testify and say, that he, this deponent, doth lodge with Alexander Boyd, and that being in bed at the dwelling of the said Alexander, in Sixth street from Delaware river, in the city of Philadelphia, on Tuesday night last, the 6th instant, and being fallen asleep, he was disturbed and awaked by a confused noise, at first seeming to him to be the report of guns fired, made by riotous persons in the street, at and near the same dwelling, and heard the glass of the lower story of the house breaking, by the throwing of stones against the same; that this deponent, still lying in his bed and not rising, heard some persons in the street say, `Here the damned rascals live who do all the mischief,’ or words to like effect; that the disturbance aforesaid did not continue after this deponent awaked, as aforesaid, above a minute, after which this deponent heard the rioters aforesaid departing hastily, as the sound of their feet indicated, towards Mulberry street; and that the Honorable John Smilie and Abraham Smith, together with James M’Calmont, James M’Lean, John Piper and William Findley, Esquires, representatives in the general assembly of this state, do also lodge with the said Alexander Boyd, and were all in bed, as this deponent bath good reason to believe, in the dwelling of the said Alexander aforesaid, at the time of the outrage and riot so as aforesaid committed, and further saith not.”
Mr. Kennedy. Sir, the outrage that has been committed against the public peace, and against the privilege of this house, being thus authenticated, I beg leave to offer a resolution upon the subject, in which I expect the unanimous concurrence of the members.[The resolution was prefaced with a recital of the injury stated in the depositions and complained of by the members, and concluded with authorizing the executive council to offer a reward for the discovery of the offenders, and requiring them to direct the attorney general to prosecute the offenders when discovered.]
Mr. Peters. I am very ready Mr. Speaker, to declare that the transaction represented to the house is of an unwarrantable and scandalous nature, for the punishment of which I shall cheerfully unite with the movers of this resolution. But I profess, sir, to be at a loss in what manner we ought to proceed in order to maintain the dignity of the legislature, and to give efficacy to our decisions upon this subject, which is certainly of great importance, not only as it respects the present object, but as it is to establish a precedent for the future. I wish therefore to have a short time for reflection, and move that the resolution before us be referred to a committeenot, Mr. Speaker, to create unnecessary delay, but as I said before, to enable us to proceed with propriety and effect.
Mr. M’ Lean. I do not perceive the least reason for referring this business to a committee: It is a plain, easy, and consistent proposition that lies before us, and the honor of the house requires that an explicit and immediate determination shall take place. The very reference to a committee will propagate an opinion that we are indifferent and in doubt as to the offence which has been committed, and it is probable that the executive council will have proceeded upon the complaint of their members, while we are indulging this useless spirit of procrastination. I cannot suppose that it is the wish of any member to defeat the question in this manner; and as it seems to be agreed that the disapprobation of the house ought to be expressed, there can be no reason given for not expressing it at this time, since every objection either to the form or substance of the proposed resolution may be obviated by immediate alteration or amendment. It was with reluctance that I consented to delay calling the attention of the house to this business so long, but as any further delay will I am confident be injurious to the legislative character, I shall oppose the motion for a commitment.
Mr. Lewis. It is difficult upon questions of importance suddenly to form an opinion which will be satisfactory to the mind; and therefore, though I shall never consent to sacrifice a moment to mere delay, I shall always be desirous to obtain the time that is necessary for deliberation. The subject before us is certainly of great moment, and therefore deserves consideration; but it is likewise of a complex nature, and therefore demands it. In the account which has been given to the house, we discover an offence that may either be considered as a riot and breach of the public peace, in which case the common course of the law is competent to punish the offenders, or it may be regarded as an infringement of the privilege of this house, in which case it becomes our duty to investigate the circumstances, for it is in our power alone to punish the delinquency. Connected with this distinction are many enquiries which it is impossible to ascertain by an instantaneous recourse to the memory; and therefore I shall vote for the commitment, which is intended, I am confident, to provide the proper means of redressing the injury, and not to divert our attention from the complaint which has been made to the house.
Mr. Fitzsimons. I have taken a cursory view of the depositions, and in my opinion, Mr. Speaker, they do not support the resolution which has been offered to the house. I should certainly therefore vote for the commitment upon that ground alone; but I conceive likewise, that in point of justice the legislature will not pass a vote which tends highly to reflect upon the city and its police, without a perfect investigation of the grounds on which they proceed. If the committee shall find the charge sufficiently supported, I shall concur in any proper measure for punishing the offenders; but to vindicate the conduct of the house, it is certainly necessary to enquire into the subject before we decide upon it.
Mr. Findley. Sir, I may be thought personally interested in the question, and therefore I shall not animadvert upon the means which the house ought to pursue, in order to declare their disapprobation of the transaction complained of; but I beg leave to observe, that I hope no other proofs will be called for in this case, than could be called for in any other case of a similar nature. According to parliamentary usage, the complaint of a member, Mr. Speaker, need only be supported by his own assertion, and the affidavits which have been produced on this occasion were superfluous and unnecessary. I claim no personal compliment or distinction, but possessing the honor of a seat in this house, I hope it will not be deemed arrogant or improper to claim the privileges and credit that belong to it.
Here the Speaker declared that Mr. Findley was certainly right in his ideas upon the subject, and Mr. Fitzsimons observed, that not being present when the business was introduced, he did not know that it came in the form of a complaint from any member of the house.
After some further debate, the question for commitment was carried by a small majority.
In due time the committee reported, the house accepted the report, and the President issued the following proclamation:
BY THE PRESIDENT AND THE SUPREME EXECUTIVE COUNCIL OF THE COMMONWEALTH OF PENNSYLVANIA.
WHEREAS, It appears to us that about midnight between Tuesday the sixth and Wednesday the seventh instant, a most daring riot was committed by a large company of disorderly and evil-minded persons unknown, at and on the dwelling of Major Alexander Boyd, in Sixth street, in the city of Philadelphia, which company violently assaulted the same house by throwing stones thereat and damaging the same, to the great disturbance and annoyance of the honorable John Baird, Abraham Smith, and John Sniffle, members of Council, and of James M’Lean, James M’Calmont, William Findley and John Piper, esquires, members of the General Assembly of this Commonwealth, who were there asleep within the same dwelling; and
Whereas, It is manifest that the said rioters did perpetrate the riot and outrage aforesaid, with design to affront and injure the gentlemen aforesaid, in as much as they at the same time declared that they knew that they were lodgers with the said Alexander Boyd, and did speak concerning them in the most contumelious and threatening terms; and
Whereas, The General Assembly of this state have transmitted to Council the following resolutions entered into by them on this occasion, viz. : “Saturday, November l0th, 1787.
” The committee to whom was referred, this forenoon, the motion respecting the insult offered to some members of this House, made report which was read and on motion and by special order the same was read the second time and unanimously adopted as follows, viz:
“Saturday, November 10th, 1787.
“The committee to whom was referred, this forenoon, the motion respecting the insult offered to some members of this House, made report which was read and on motion and by special order the same was read the second time and unanimously adopted as follows, viz:
“WHEREAS, Complaint hath been made to this House by James M’Calmont James M’Lene, John Piper and William Findley, esquires, members thereof, that on the night of Tuesday the sixth instant, the house of major Boyd, of this city, in which they resided, was riotously attacked by a number of persons, to the said members unknown, and themselves abused and insulted by reproachful language.
“Resolved, That such outrageous proceedings is highly disapproved of by this House, and is a breach of the privilege of its members.
“Resolved, That this resolution, together with the affidavits which the said members have thought proper to produce on the subject, be transmitted to the Supreme Executive Council, and that Council be requested to issue a proclamation, offering such rewards as they may deem necessary for apprehending the perpetrators of the said outrage, in order that they may be brought to punishment, and that this House will provide for the payment of such rewards;” and
Whereas, It is highly proper that the authors of such high contempts, so inconsistent with the dignity and good order of government, and of the most pernicious example, should be immediately discovered and brought to condign punishment; WE DO, therefore, by this our proclamation, offer and promise the reward of THREE HUNDRED DOLLARS for the discovery of the rioters aforesaid, so that they he duly convicted of the same offence, to be paid out of the public treasury of this commonwealth, to the person or persons who shall furnish the necessary information concerning the premises. And we do hereby charge and require all judges, justices, sheriffs and constables to make diligent search and enquiry after and to use their utmost endeavors to apprehend and secure the said rioters, their aiders, abettors and comforters, so that they may be dealt with according to law.
Given in Council, under the hand of the President, and the seal of the Stale, at Philadelphia, this twelfth day of November, in the year of our Lord one thousand, seven hundred and eighty-seven.
Attest: CHARLES BIDDLE, Sec’ry.
God save the Commonwealth.
The proclamation was matter of form; neither the Judges, nor the Justices, the Sheriffs nor the Constables exerted themselves to find the rioters, and the delegates chosen throughout the State assembled at the State House on the 21st of November.
Wednesday, November 21?
Sixty1 of the gentlemen elected to serve in the convention met; the returns of the elections held for the city of Philadelphia and the several counties of this State were read, by which it appeared that the following gentlemen were returned as delegates to the convention2 for the said city and counties respectively, viz:
Thomas Bull, Anthony Wayne, William Gibbons, Richard Downing, Thomas Cheyney, John Hannum.
Stephen Chambers, Robert Coleman, Sebastian Graff, John Hubley, Jaspar Yeates, John Whitehill.
Henry Slagle, Thomas Campbell
George Latimer, Benjamin Rush, Hilary Baker, James Wilson, Thomas M’Kean.
William Macpherson, John Hunn, George Gray, Samuel Ashmead, Enoch Edwards.
Henry Wynkoop, John Barclay, Thomas Yardley, Abraham Stout, Thomas Hartley, David Grier, John Black Benjamin Pedan.
John Harris, John Reynolds, Robert Whitehill, Jonathan Hoge.
Nicholas Lutz, John Ludwig, Abraham Lincoln, John Bishop, Joseph Hiester.
John Arndt, Stephen Balliet, Joseph Horsfield, David Deshler.
James Martin Joseph Powell.
William Wilson, John Boyd.
William Findley, John Baird, William Todd.
James Marshel, James Edgar, Thomas Scott, John Neville.
Nathaniel Breading, John Smilie.
Richard Bard, John Allison
Jonathan Roberts, John Richards, Fred A. Muhienberg, James Morris.
William Brown, Adam Orth, John Andre Hannah.
The members then proceeded by ballot3 to the election of a president, when there appeared 30 votes for Mr. Muhlenberg, 29 for Mr. M’Kean, and one for Mr. Gray. General Wayne doubted whether 30 votes could be deemed the sense of the meeting, as it was not a majority of 60, the number of delegates present, which occasioned a short conversation upon the subject; but at length, the question being taken whether Mr. Muhlenberg should be conducted to the chair? it was determined in the affirmative. It was then proposed to proceed to the choice of a clerk, but that business was deferred on motion of Mr. Smilie. Dr. Rush moved “that a committee be appointed to request the attendance of some minister of the gospel tomorrow morning, in order to open the business of the convention with prayer.” This was considered by several gentlemen as a new and unnecessary measure, which might be inconsistent with the religious sentiments of some of the members, as it was impossible to fix upon a clergyman to suit every man’s tenets, and it was neither warranted by the example of the general assembly or of the convention that framed the government of Pennsylvania. To these observations Dr. Rush replied, that he hoped there was liberality sufficient in the meeting to unite in prayers for the blessing of Heaven upon their proceedings, without considering the sect or persuasion of the minister who officiated; and with respect to precedent, he remarked that it might be taken from the conduct of the first, and every succeeding Congress, who certainly deserved our imitation. “That the convention who framed the government of Pennsylvania, did not preface their business with prayer, is probably the reason,” added the Doctor, “that the state has ever since been distracted by their proceedings.” Mr. Smilie objected to the absurd superstition of that opinion, and moved a postponement, which was accordingly agreed to. An invitation was read from the trustees of the university, requesting the attendance of the members at the ensuing Commencement, which was unanimously accepted, and the convention adjourned to meet to-morrow morning at 9 o’clock, in order to proceed in a body to the college-hall.
Thursday, November 22, 10 o’clock, a.m..
The Convention met4 agreeably to their adjournment, and on motion of Mr. Whitehill, the members proceeded in a body to the Commencement of the University. After the exercises were concluded, the Convention returned to the State-house.
On motion of Mr. Wayne, 5 seconded by Mr. Whitehill, a committee was appointed to report rules and regulations for conducting the business of the convention: the committee consisted of Benjamin Rush, James Wilson, George Gray, Anthony Wayne, and Robert Whitehill.
Adjourned until half after 9 o’clock to-morrow.
Friday, November 23.
The Convention6 being met, pursuant to adjournment, on motion of Mr. M’ Kean, they proceeded to the choice of a Secretary, when Mr. James Campbell was duly elected. Mr. Burt was afterwards appointed Messenger, and Mr. Fry, Doorkeeper. An application from Thomas Lloyd to be made Assistant Clerk, was read, and a motion, complying with the same, was postponed.
The committee7 appointed yesterday to bring in rules and regulations made report, and the same being read, was, by special order, taken up, read by paragraphs, and agreed to, as follows:
1st. When the President assumes the chair, the members shall take their seats.
2d. At the opening of the convention each day, the minutes of the preceding day shall be read, and are then in the power of the convention to be corrected, after which any business addressed to the chair may be proceeded to.
3d. Every petition, memorial, letter, or other matter of the like kind, read in the convention, shall be deemed as lying on the table for further consideration, unless any special order be moved therein.
4th. A motion made and seconded shall be repeated by the President. A motion shall be reduced to writing, if the President or any two members require it. A motion may be withdrawn by the member making it before any decision is had on it.
5th. No member speaking shall be interrupted but by a call to order by the President, or by a member through the President.
6th. No member to be referred to in debate by name.
7th. The President himself, or by request, may call to order any member who shall transgress the rules. If a second time, the President may refer to him by name. The convention may then examine and censure the member’s conduct, he being allowed to extenuate or justify.
8th. Every member actually attending the convention shall be in his place at the time the convention stands adjourned to, or within half an hour thereof.
9th. The name of him who makes, and the name of him who seconds a motion, shall be entered on the minutes.
10th. No member shall speak more than twice to a question without leave.
11th. Every member of a committee shall attend at the call of his chairman.
12th. The yeas and nays may be called, and entered on the minutes when any two members require it.
On motion 8 of Mr. M’ Kean, seconded by Mr. Smilie, resolved that the doors of the Convention be kept open.
On motion of Mr. M’Kean, the Constitution proposed for the federal government, was taken up and read by the Clerk.
Mr. Wilson then moved that the time of meeting and adjourning should be fixed, observing that with respect to the time of adjournment, it had been found necessary in the Federal Convention to make a rule that at 4 o’clock they should break up, even if a member was in the middle of his speech, and he proposed that two o’clock should be the hour now limited for adjournment; but, after a short conversation, it was agreed that the Convention should meet at 10 o’clock each morning, leaving the hour of adjournment unspecified.
The Convention adjourned to meet to-morrow morning at to o’clock.
Saturday, November 24th.
The Convention met pursuant to adjournment.
The Minutes of yesterday being read, the proposed Constitution of Federal Government was taken up for a second reading, after which the following proceedings took place:
Mr. M’Kean. 9 Mr. President, there will perhaps be some difficulty in ascertaining the proper mode of proceeding to obtain a decision upon the important and interesting subject before us. We are certainly without precedent to guide us; but the utility of the forms observed by other public bodies, will be an inducement to adhere to them where a variation of circumstance does not render a variation of the mode essentially necessary. As far, therefore, as the rules of the Legislature of Pennsylvania will apply to the Constitution and business of this body, I shall recommend their adoption; but I perceive that in a very great degree we shall be obliged, for conveniency and propriety, to resort to new regulations, arising from the singularity of the subject offered to our consideration. For the present, however, I shall move you, Sir, that we come to the following resolution:
Resolved, That this Convention do adopt and ratify the Constitution of Federal Government as agreed upon by the Federal Convention at Philadelphia on the 17th day of September, 1787.
This measure, Mr. President, is not intended to introduce an instantaneous decision of so important a question, but merely to bring the object of our meeting fully and fairly into discussion. It is not my wish that it should be determined this day, nor do I apprehend it will be necessary that it should be determined this day week; but it is merely preparatory to another motion with which I shall hereafter trouble you, and which, in my opinion, will bring on that regular and satisfactory investigation of the separate parts of the proposed Constitution, which will finally enable us to determine upon the whole.
Mr. Wilson. As the only member of this respectable body, who had the honor of a seat in the late Federal Convention, it is peculiarly my duty, Mr. President, to submit to your consideration the general principles that have produced the national Constitution, which has been framed and proposed by the assembled delegates of the United States, and which must finally stand or fall by the concurrent decision of this Convention and of others acting upon the same subject, under similar powers and authority. To frame a government for a single city or State, is a business both in its importance and facility, widely different from the task entrusted to the Federal Convention, whose prospects were extended not only to thirteen independent and sovereign States, some of which in territorial jurisdiction, population, and resource, equal the most respectable nations of Europe, but likewise to innumerable States yet unformed, and to myriads of citizens who in future ages shall inhabit the vast uncultivated regions of the continent. The duties of that body therefore, were not limited to local or partial considerations, but to the formation of a plan commensurate with a great and valuable portion of the globe.
I confess, Sir, that the magnitude of the object before us, filled our minds with awe and apprehension. In Europe, the opening and extending the navigation of a single river, has been deemed an act of imperial merit and importance; but how insignificant does it seem when we contemplate the scene that nature here exhibits, pouring forth the Potowmack, the Rapahannock, the Susquehanna, and other innumerable rivers, to dignify, adorn, and enrich our soil. But the magnitude of the object was equalled by the difficulty of accomplishing it, when we considered the uncommon dexterity and address that were necessary to combat and reconcile the jarring interests that seemed naturally to prevail, in a country which, presenting a coast of 1500 miles to the Atlantic, is composed of 13 distinct and independent States, varying essentially in their situation and dimensions, and in the number and habits of their citizenstheir interests too, in some respects really different, and in many apparently so; but whether really or apparently, such is the constitution of the human mind, they make the same impression, and are prosecuted with equal vigor and perseverance. Can it then be a subject for surprise that with the sensations indispensably excited by so comprehensive and so arduous an undertaking, we should for a moment yield to despondency, and at length, influenced by the spirit of conciliation, resort to mutual concession, as the only means to obtain the great end for which we were convened? Is it a matter of surprise that where the springs of dissension were so numerous, and so powerful, some force was requisite to impel them to take, in a collected state, a direction different from that which separately they would have pursued?
There was another reason, that in this respect, increased the difficulties of the Federal Conventionthe different tempers and dispositions of the people for whom they acted. But, however widely they may differ upon other topics, they cordially agree in that keen and elevated sense of freedom and independence, which has been manifested in their united and successful opposition to one of the most powerful kingdoms of the world. Still, it was apprehended by some, that the their abhorrence of constraint, would be the source of objection and opposition; but I confess that my opinion, formed upon a knowledge of the good sense, as well as the high spirit of my constituents, made me confident that they would esteem that government to be the best, which was best calculated eventually to establish and secure the dignity and happiness of their country. Upon this ground, I have occasionally supposed that my constituents have asked the reason of my assent to the several propositions contained in the plan before us. My answer, though concise, is a candid and I think a satisfactory onebecause I thought them right; and thinking them right, it would be a poor compliment indeed to presume they could be disagreeable to my constituentsa presumption that might occasion a retort to which I wish not to expose myself, as it would again be asked, “Is this the opinion you entertain of those who have confided in your judgment? From what ground do you infer that a vote right in itself would be disagreeable to us?” and it might with justice be added, “this sentiment evinces that you deserved not the trust which we reposed in you.” No, Sir! I have no right to imagine that the reflected rays of delegated power can displease by a brightness that proves the superior splendor of the luminary from which they proceed.
The extent of country for which the New Constitution was required, produced another difficulty in the business of the Federal Convention. It is the opinion of some celebrated writers, that to a small territory the democratical, to a midling territory (as Montesquieu has termed it) the monarchical, and to an extensive territory the despotic form of government, is best adapted. Regarding then, the wide and almost unbounded jurisdiction of the United States, at first view the hand of despotism seemed necessary to control, connect and protect it ; and hence the chief embarrassment arose. For we knew that, although our constituents would cheerfully submit to the legislative restaints of a free government, they would spurn at every attempt to shackle them with despotic power.
In this dilemma, a Federal Republic naturally presented itself to our observation, as a species of government which secured all the internal advantages of a republic, at the same time that it maintained the external dignity and force of a monarchy. The definition of this form of government may be found in Montesquieu, who says, I believe, that it consists in assembling distinct societies which are consolidated into a new body, capable of being increased by the addition of other membersan expanding quality peculiarly fitted to the circumstances of America.
But while a federal republic removed one difficulty, it introduced another, since there existed not any precedent to assist our deliberations; for, though there are many single governments, both ancient and modern, the history and principles of which are faithfully preserved and well understood, a perfect confederation of independent states is a system hitherto unknown. The Swiss cantons, which have often been mentioned in that light, cannot properly be deemed a federal republic, but merely a system of united states. The United Netherlands are also an assemblage of states; yet, as their proceedings are not the result of their combined decisions, but of the decisions of each state individually, their association is evidently wanting in that quality which is essential to constitute a federal republic. With respect to the Germanic Body, its members are of so disproportionate a size, their separate governments and jurisdictions so different in nature and extent, the general purpose and operation of their union so indefinite and uncertain, and the exterior power of the House of Austria so prevalent, that little information could be obtained or expected from that quarter. Turning, then, to ancient history, we find the Achan and Lycian leagues and the Arnphyctionic council bearing a superficial resemblance to a federal republic; but of all these, the accounts which have been transmitted to us are too vague and imperfect to supply a tolerable theory, and they are so destitute of that minute detail from which practical knowledge may be derived, that they must now be considered rather as subjects of curiosity, than of use or information.
Government, indeed, taken as a science, may yet be considered in its infancy; and with all its various modifications, it has hitherto been the result of force, fraud, or accident. For, after the lapse of six thousand years since the creation of the world, America now presents the first instance of a people assembled to weigh deliberately and calmly, and to decide leisurely and peaceably, upon the form of government by which they will bind themselves and their posterity. Among the ancients, three forms of government seem to have been correctly knownthe monarchical, aristocratical, and democratical; but their knowledge did not extend beyond those simple kinds, though much pleasing ingenuity has occasionally been exercised in tracing a resemblance of mixed government in some ancient institutions, particularly between them and the British constitution. But, in my opinion, the result of these ingenious refinements does more honor to the moderns in discovering, than to the ancients in forming the similitude. In the work of Homer, it is supposed by his enthusiastic commentators, the seeds of every science are to be found; but, in truth, they are first observed in subsequent discoveries, and then the fond imagination transplants them to the book. Tacitus, who lived towards the close of that period which is called ancient, who had read the history of all antecedent and contemporary governments, who was perfectly competent to judge of their nature, tendency, and qualityTacitus considers a mixed government as a thing rather to be wished than expected; and if ever it did occur, it was his opinion that it could not last long. One fact, however, is certain, that the ancients had no idea of representation, that essential to every system of wise, good, and efficient government. It is surprising, indeed, how very imperfectly, at this day, the doctrine of representation is understood in Europe. Even Great Britain, which boasts a superior knowledge of the subject, and is generally supposed to have carried it into practice, falls far short of its true and genuine principles. For, let us enquire, does representation pervade the constitution of that country? No. Is it either immediately or remotely the source of the executive power? No. For it is not any part of the British constitution, as practiced at this time, that the king derives his authority from the people. Formerly that authority was claimed by hereditary or divine right; and even at the revolution, when the government was essentially improved, no other principle was recognized but that of an original contract between the sovereign and the peoplea contract which rather excludes than implies the doctrine of representation. Again, is the judicial system of England grounded on representation? No. For the judges are appointed by the king, and he, as we have already observed, derives not his majesty or power from the people. Lastly, then, let us review the legislative body of that nation, and even there, though we find representation operating as a check, it cannot be considered as a pervading principle. The lords, acting with hereditary right, or under an authority immediately communicated by regal prerogative, are not the representatives of the people, and yet they, as well as the sovereign, possess a negative power in the paramount business of legislation. Thus the vital principle of the British constitution is confined to a narrow corner, and the world has left to America the glory and happiness of forming a government where representation shall at once supply the basis and the cement of the superstructure. For representation, Sir, is the true chain between the people and those to whom they entrust the administration of the government; and though it may consist of many links, its strength and brightness never should be impaired. Another, and perhaps the most important obstacle to the proceedings of the Federal Convention, arose in drawing the line between the national and the individual governments of the states.
On this point a general principle readily occurred, that whatever object was confined in its nature and operation to a particular State, ought to be subject to the separate government of the States; but whatever in its nature and operation extended beyond a particular State, ought to be comprehended within the federal jurisdiction. The great difficulty, therefore, was the application of this general principle, for it was found impracticable to enumerate and distinguish the various objects to which it extended; and as the mathematics only are capable of demonstration, it ought not to be thought extraordinary that the convention could not develop a subject involved in such endless perplexity. If, however, the proposed constitution should be adopted, I trust that in the theory there will be found such harmony, and in the practice such mutual confidence between the national and individual governments, that every sentiment of jealousy and apprehension will be effectually destroyed. But, Sir, permit me to ask whether, on the ground of a union, the individual or the national government ought most to be trusted? For my part, I think it more natural to presume that the interest of each would be pursued by the whole, than the reverse of the proposition that the several States would prefer the interest of the confederated body; for in the general government each is represented, but in the separate governments, only the separate States.
These difficulties, Mr. President, which embarrassed the Federal Convention, are not represented to enhance the merit of surmounting them, but with a more important view, to show how unreasonable it is to expect that the plan of government should correspond with the wishes of all the States, of all the citizens of any one State, or of all the citizens of the united continent. I remember well, Sir, the effect of those surrounding difficulties in the late Convention. At one time the great and interesting work seemed to be at a stand, at another it proceeded with energy and rapidity, and when at last it was accomplished, many respectable members beheld it with wonder and admiration. But having pointed out the obstacles which they had to encounter, I shall now beg leave to direct your attention to the end which the Convention proposed.
Our wants, imperfections, and weakness, Mr. President, naturally incline us to society; but it is certain, society cannot exist without some restraints. In a state of nature each individual has a right, uncontrolled, to act as his pleasure or his interest may prevail, but it must be observed that this license extends to every individual, and hence the state of nature is rendered insupportable, by the interfering claims and the consequent animosities of men, who are independent of every power and influence but their passions and their will. On the other hand, in entering into the social compact, though the individual parts with a portion of his natural rights, yet it is evident that he gains more by the limitation of the liberty of others, than he loses by the limitation of his own,-so that in truth, the aggregate of liberty is more in society, than it is in a state of nature.
It is then, Sir, a fundamental principle of society, that the welfare of the whole shall be pursued and not of a part, and the measures necessary to the good of the community must consequently be binding upon the individuals that compose it. This principle is universally allowed to be just with respect to single governments, and there are instances in which it applies with equal force to independent communities; for the situation and circumstances of states may make it as necessary for them as for individuals to associate. Hence, Mr. President, the important question arises: Are such the situation and circumstances of the American States?
At this period, America has it in her power to adopt either of the following modes of government: She may dissolve the individual sovereignty of the States, and become one consolidated empire; she may be divided into thirteen separate, independent and unconnected commonwealths; she may be erected into two or more confederacies; or, lastly, she may become one comprehensive Federal Republic.
Allow me, Sir, to take a short view of each of these suppositions. Is it probable that the dissolution of the State governments, and the establishment of one consolidated empire, would be eligible in its nature, and satisfactory to the people in its administration ? I think not, as I have given reasons to show that so extensive a territory could not be governed, connected and preserved but by the supremacy of despotic power. All the exertions of the most potent Emperors of Rome were not capable of keeping that Empire together, which in extent was far inferior to the dominion of America. Would an independent, an unconnected situation, without any associating head, be advantageous or satisfactory? The consequences of this system would at one time expose the States to foreign insult and depredations, and at another, to internal jealousy, contention and war. Then let us consider the plan of two or more confederacies which has often been suggested, and which certainly presents some aspects more inviting than either of the preceding modes, since the subjects of strife would not be so numerous, the strength of the confederates would be greater, and their interests more united. But even here, when we fairly weigh the advantages and the disadvantages, we shall find the last greatly preponderating; the expenses of government would be considerably multiplied, the seeds of rivalship and animosity would spring up, and spread the calamities of war and tumult through the country; for tho’ the sources of rancour might be diminished, their strength and virulence would probably be increased.
Of these three species of government, however, I must observe, that they obtained no advocates in the Federal Convention, nor can I presume that they will find advocates here, or in any of our sister States. The general sentiment in that body, and, I believe, the general sentiment of the citizens of America, is expressed in the motto which some of them have chosen, UNITE OR DIE; and while we consider the extent of the country, so intersected and almost surrounded with navigable rivers, so separated and detached from the rest of the world, it is natural to presume that Providence has designed us for an united people, under one great political compact. If this is a just and reasonable conclusion, supported by the wishes of the people, the Convention did right in proposing a single confederated Republic. But in proposing it they were necessary led, not only to consider the situation, circumstances, and interests of one, two, or three States, but of the collective body; and as it is essential to society, that the welfare of the whole should be preferred to the accommodation of a part, they followed the same rule in promoting the national advantages of the Union, in preference to the separate advantages of the States. A principle of candor, as well as duty, led to this conduct; for, as I have said before, no government, either single or confederated, can exist, unless private and individual rights are subservient to the public and general happiness of the nation. It was not alone the State of Pennsylvania, however important she may be as a constituent part of the union, that could influence the deliberations of a convention formed by a delegation from all the United States to devise a government adequate to their common exigencies and impartial in its influence and operation. In the spirit of union, inculcated by the nature of their commission, they framed the constitution before us, and in the same spirit they submit it to the candid consideration of their constituents.
Having made some remarks upon the nature and principles of civil society, I shall now take a cursory notice of civil liberty, which is essential to the well-being of civil government. The definition of civil liberty is, briefly, that portion of natural liberty which men resign to the government, and which then produces more happiness than it would have produced if retained by the individuals who resign it; still, however, leaving to the human mind the full enjoyment of every privilege that is not incompatible with the peace and order of society. Here I am easily led to the consideration of another species of liberty, which has not yet received a discriminating name, but which I will venture to term Federal liberty. This, Sir, consists in the aggregate of the civil liberty which is surrendered by each state to the national government; and the same principles that operate in the establishment of a single society, with respect to the rights reserved or resigned by the individuals that compose it, will justly apply in the case of a confederation of distinct and independent States.
These observations have been made, Mr. President, in order to preface a representation of the state of the Union, as it appeared to the late convention. We all know, and we have all felt, that the present system of confederation is inadequate to the government and the exigencies of the United States. Need I describe the contrasted scene which the revolution has presented to our view? On the one hand, the arduous struggle in the cause of liberty terminated by a glorious and triumphant peace: on the other, contention and poverty at home, discredit and disgrace abroad. Do we not remember what high expectations were formed by others and by ourselves on the return of peace ? And have those honorable expectations from our national character been realized ? No! What then has been the cause of disappointment? Has America lost her magnanimity or perseverance? No! Has she been subdued by any high-handed invasion of her liberties? Still I answer no; for dangers of that kind were no sooner seen than they were repelled. But the evil has stolen in from a quarter little suspected, and the rock of freedom, which stood firm against the attacks of a foreign foe, has been sapped and undermined by the licentiousness of our own citizens. Private calamity and public anarchy have prevailed; and even the blessing of independency has been scarcely felt or understood by a people who have dearly achieved it.
Shall I, Sir, be more particular in this lamentable history? The commencement of peace was likewise the commencement of our distresses and disgrace. Devoid of power, we could neither prevent the excessive importations which lately deluged the country, nor even raise from that excess a contribution to the public revenue; devoid of importance, we were unable to command a sale for our commodities in a foreign market; devoid of credit, our public securities were melting in the hands of their deluded owners, like snow before the sun; devoid of dignity, we were inadequate to perform treaties on our own part, or to compel a performance on the part of a contracting nation. In short, Sir, the tedious tale disgusts me, and I fondly hope it is unnecessary to proceed. The years of languor are over. We have seen dishonor and destruction, it is true, but we have at length penetrated the cause, and are now anxious to obtain the cure. The cause need not be specified by a recapitulation of facts; every act of Congress, and the proceedings of every State, are replete with proofs in that respect, and all point to the weakness and imbecility of the existing confederation; while the loud and concurrent voice of the people proclaims an efficient national government to be the only cure. Under these impressions, and with these views, the late convention were appointed and met; the end which they proposed to accomplish being to frame one national and efficient government, in which the exercise of beneficence, correcting the jarring interests of every part, should pervade the whole, and by which the peace, freedom, and happiness of the United States should be permanently ensured. The principles and means that were adopted by the convention to obtain that end are now before us, and will become the great object of our discussion. But on this point, as upon others, permit me to make a few general observations.
In all governments, whatever is their form, however they may be constituted, there must be a power established from which there is no appeal, and which is therefore called absolute, supreme, and uncontrollable. The only question is, where that power is lodged?a question that will receive different answers from the different writers on the subject. Sir William Blackstone says, it resides in the omnipotence of the British Parliament, or in other words, corresponding with the practice of that country, it is whatever the British Parliament pleases to do: so that when that body was so base and treacherous to the rights of the people as to transfer the legislative authority to Henry the Eighth, his exercising that authority by proclamations and edicts could not strictly speaking be termed unconstitutional, for under the act of Parliament his will was made the law, and therefore his will became in that respect the constitution itself. But were we to ask some politicians who have taken a faint and inaccurate view of our establishments, where does this supreme power reside in the United States? they would probably answer, in their Constitutions. This however, though a step nearer to the fact, is not a just opinion; for in truth, it remains and flourishes with the people; and under the influence of that truth we, at this moment, sit, deliberate, and speak. In other countries, indeed, the revolutions of government are connected with war, and all its concomitant calamities. But with us, they are considered as the means of obtaining a superior knowledge of the nature of government, and of accomplishing its end. That the supreme power, therefore, should be vested in the people, is in my judgment the great panacea of human politics. It is a power paramount to every constitution, inalienable in its nature, and indefinite in its extent. For I insist, if there are errors in government, the people have the right not only to correct and amend them, but likewise totally to change and reject its form; and under the operation of that right, the citizens of the United States can never be wretched beyond retrieve, unless they are wanting to themselves.
Then let us examine, Mr. President, the three species of simple government, which as I have already mentioned, are the monarchical, aristocratical and democratical. In a monarchy, the supreme power is vested in a single person; in an aristocracy, it is possessed by a body not formed upon the principle of representation, but enjoying their station by descent, by election among themselves, or in right of some personal or territorial qualification; and lastly, in a democracy, it is inherent in the people, and is either exercised by themselves or by their representatives. Each of these systems has its advantages and its disadvantages. The advantages of a monarchy are strength, dispatch, and unity; its disadvantages are expense, tyranny, and war. The advantages of an aristocracy are experience, and the wisdom resulting from education; its disadvantages are the dissension of the governors, and the oppression of the people. The advantages of a democracy are liberty, caution, industry, fidelity, and an opportunity of bringing forward the talents and abilities of the citizens, without regard to birth or fortune; its disadvantages are dissension and imbecility, for the assent of many being required, their exertions will be feeble, and their counsels too soon discovered.
To obtain all the advantages, and to avoid all the inconveniences of these governments, was the leading object of the late convention. Having therefore considered the formation and principles of other systems, it is natural to enquire, of what description is the constitution before us? In its principles, Sir, it is purely democratical; varying indeed, in its form, in order to admit all the advantages, and to exclude all the disadvantages which are incidental to the known and established constitutions of government. But when we take an extensive and accurate view of the streams of power that appear through this great and comprehensive plan, when we contemplate the variety of their directions, the force and dignity of their currents, when we behold them intersecting, embracing, and surrounding the vast possessions and interests of the continent, and when we see them distributing on all hands beauty, energy and riches, still, however numerous and wide their courses, however diversified and remote the blessings they diffuse, we shall be able to trace them all to one great and noble source, THE PEOPLE.
Such, Mr. President, are the general observations with which I have thought it necessary to trouble you. In discussing the distinct propositions of the federal plan, I shall have occasion to apply them more particularly to that subject; but at present I shall conclude with requesting the pardon of the convention for having so long intruded upon their patience.
When Mr. Wilson had concluded, 10 Mr. Smilie rose and entered into a severe animadversion upon the nature of the motion offered by Mr. M’Kean, which however, he observed, was consistent with the system of precipitancy that had uniformly prevailed in respect to the important subject before the Convention. He observed that we were repeatedly told of the peculiar advantages which we enjoy in being able deliberately and peaceably to decide upon a government for ourselves and our posterity, but we find every measure that is proposed leads to defeat those advantages, and to preclude all argument and deliberation, in a case confessedly of the highest consequence to the happiness of a great portion of the globe. What, continued he, can be the object of the motion ? Is it to bring on a hasty and total adoption of the constitution? Let it be remembered that the Federal Convention consumed four months in framing it, and shall we not employ a few days in deciding upon it? If it is that noble, that perfect system, we have been told it is, why interfere with the fullest investigation of its principles, since, in that case, the better they are understood, the more they will be approved. The most common business of a legislative body is treated with greater delicacy, being submitted to repeated discussion, upon different days, and are we on a point of such magnitude to determine without information, to agree in toto to so complicated a system, before we have weighed and examined its constituent parts? No, Sir, it is our duty to go coolly and circumstantially into the consideration of this business, and by comparing it, at least, with the circumstances and exigencies of our country, ask with firmness, is such a sacrifice of civil liberty necessary to the national honor and happiness of America? For my part, I think otherwise, though at the same time I am sensible of the expediency of giving additional strength and energy to the Federal head. But we are not so situated as to be obliged to accept any terms; and if this plan is such as we ought no to accept, I hope this convention will have candour and fortitude enough to reject it.
Mr. M’Kean followed Mr. Smilie, and remarked that the object of his motion was declared when it was proposed: it was not to preclude, but promote a free and ample discussion of the federal plan. But as to the precedents which are pointed out from the legislature of Pennsylvania to guide our proceedings, if they were always right, which I do not think they are, still no parallel can be drawn between the nature of their business and ours, consequently their rules cannot apply. We do not come here to legislate; we have no right to inquire into the power of the late convention, or to alter and amend their work; the sole question before us is, whether we will ratify and confirm, or, upon due consideration, reject in the whole, the system of federal government that is submitted to us. But because this is the only question which we can decide, does it follow that we are not minutely to investigate its principles in every section and sentence? No, Sir; that will be our duty before we conclusively say whether we will ratify or reject; but precedents in point of proceeding cannot be drawn from any part of the world, for we are the first people who have ever peaceably assembled upon so great and interesting an occasion.
Mr. Whitehill stated that, in his opinion, the object of the motion had been misunderstood by the member from Fayette, which was undoubtedly intended to bring the subject fairly before the convention. Indeed, I cannot perceive how we can decide upon the whole without having first considered every part, and in order to do that with convenience and effect, I presume a motion to go into a committee of the whole convention, which I mean to propose, will be adopted. Notwithstanding the arrangements, there may be reasonable objections urged against the proposed plan, and if it is found that it conveys to the federal government rights and liberties which the people ought never to surrender, I hope no speculative argument will seduce us into a confirmation, which binds ourselves and our posterity forever.
The convention then adjourned to meet on Monday afternoon at 3 o’clock.[The following comments on Mr. Wilson's speech appeared in the Pennsylvania Packet of Nov. 27th.]
Mr. Wilson attracted the attention of the house by a speech which the celebrated Roman orator would not have blushed to own. He began by pointing out the difficulties that the late convention had to encounter; the diversity of opinion, interest and prejudice they had to combat. He sketched the different forms of ancient and modern republics, and showed how imperfect models they were for our imitation; he proved to demonstration that there was not among them one confederated republic. He mentioned these difficulties (he said) not to make a parade of the merits of the convention in surmounting them, but to show how visionaryhow idle it is to expect that under them a government could be framed unexceptionable in all its parts to each individual of so extensive an empire. He forcibly contrasted the imbecility of our present confederation with the energy which must result from the proffered constitution. After defining (with an accuracy which marked his acquaintance with governmental history) the different kinds of government, and pointing out their respective advantages and wants, he concluded a speech which had justly won the admiration of his audience, by saying that the late convention had in view, and he hoped had in some measure executed, a constitution whose energy would pervade the union and restore credit and happiness to a distracted empire.
Monday, November 26th.
The convention 11 met agreeably to adjournment.
It was moved by Mr. M’ Kean, seconded by Mr. Chambers, that the convention do now proceed to consider the proposed constitution by articles.
This motion occasioned a long and desultory debate, in which it was contended, on the one hand, that the restraints of proceeding in convention, under fixed rules, precluding any member from speaking oftener than twice on the same question, and the advantages of reconsideration afforded by going into a committee of the whole, would be sufficient reasons for dissenting from the proposed motion.
On the other side, the expense and delay of going twice over the same ground was insisted on; and in order to obviate the difficulty arising from the rule of debate, it was proposed to rescind that, and leave it in the power of each member to speak as often as he pleased.
The rule was accordingly rescinded, and the question being taken on a motion made by Mr. Whitehill, for postponing the resolution proposed by Mr. M’ Kean, in order to introduce a motion for going into a committee of the whole, was lost, there being 43 against it, and 24 in favor of it.
While the convention were debating12 on the propriety of referring the constitution to a committee of the whole, Mr. Wilson made the following observation: “Shall we, Sir, while we contemplate a great and magnificent edifice, condescend like a fly, with its microscopic eye, to scrutinize the imperfections of a single brick?” Mr. Findley, retorting the metaphor, said ” Shall we not, Sir, when we are about to erect a large and expensive fabric (for as far as it respects us, we are about to erect this mighty fabric of government in Pennsylvania) examine and compare the materials of which we mean to compose it, fitting and combining the parts with each other, and rejecting every thing that is useless and rotten?” “That,” concluded Dr. Rush, ” is not our situation. We are not, at this time, called upon to raise the structure. The house is already built for us, and we are only asked, whether we choose to occupy it? If we find its apartments commodious, and, upon the whole, that it is well calculated to shelter us from the inclemencies of the storm that threatens, we shall act prudently in entering it; if otherwise, all that is required of us is to return the key to those who have built and offered it for our use.”
It was observed in the convention, that the Federal convention had exceeded the powers given to them by the several legislatures; but Mr. Wilson observed, that however foreign the question was to the present business, he would place it in its proper light. The Federal convention did not act at all upon the powers given to them by the States, but they proceeded upon original principles, and having framed a constitution which they thought would promote the happiness of their country, they have submitted it to their consideration, who may either adopt or reject it, as they please.
Yesterday afternoon, 13 in the convention of this State, it was moved by Mr. M’ Kean, seconded by Mr. Chambers, that this convention do now proceed to consider the proposed constitution by articles.
After some debate it was moved by Mr. R. Whitehill, seconded by Mr. Lincoln, that the aforesaid motion be postponed in order to introduce the following, viz.That this convention resolve itself into a committee of the whole, for the purpose of investigating and considering the aforesaid constitution by articles and sections, and to make report thereon.
A debate of considerable length now took place, which turned principally on the expediency of resolving the convention into a committee of the whole. In favor of this measure it was urged, that it would subject the constitution to a more free and candid discussionthat it would allow more time for the members to make up their mindsand that it would be more consonant to the practice of the Legislature of Pennsylvania. Against the motion was urged that by going into a committee of the whole, no minutes could be taken of the proceedings, and that the people at large would thereby be kept in ignorance of themthat as full liberty was given to each to speak as often as he pleased, there would be the same time given for deliberation in convention as in the committeethat the practice of the Assembly of Pennsylvania was no precedent for the conventionthat this was a body without a precedent in the history of mankindand that as the whole constitution was a single proposition, and that proposition alone before the convention, it was unnecessary to go into a committee, especially as no question could be taken upon any part of the constitution, nor any additions made to it, agreeably to the recommendation of the Assembly under which the convention sat; although objections to every part of it might be made before the question of ratification was proposed.
The question being at length put, Mr. Whitehill’s motion for postponement was lost, the yeas and nays being as follows:
John Whitehill, John Harris, John Reynolds, Robert Whitehill, Jonathan Hoge, Nicholas Lutz, John Ludwig, Abraham Lincoln, John Bishop, Joseph Hiester, James Martin, Joseph Powell, William Findley, John Baird, John Smilie, Richard Bard, William Brown, Adam Orth, John Andre Hannah, William Todd, James Marshall, James Edgar, Thomas Scott, Nathaniel Breading, -24.
Sebastian Graff, John Hubley, Jasper Yeates, Henry Sagle, Thomas Campbell, Thomas Hartley, David Grier, John Black, Benjamin Pedan, John Arndt, Stephen Balliet, Joseph Horsfield, David Deshler, William Wilson, John Boyd, John Neville, John Allison, Jonathan Roberts, John Richards, F. A. Muhlenberg, James Morris, Timothy Pickering, George Latimer, Benjamin Rush, Hilary Baker, James Wilson, Thomas M’Kean, William Macpherson, John Hunn, George Gray, Thomas M’Kean, William Macpherson, John Hunn, Thomas Yardley, Abraham Stout, Thomas Bull, Anthony Wayne, William Gibbons, Richard Downing, Thomas Cheyney, John Hannum, Stephen Chambers, Robert Coleman, -44
The question on Mr. M’Kean’s the motion adopted.
The speakers in favor of the motion for a committee were Mr. Findley, Mr. Smilie and Mr. Whitehill. The speakers against it were Mr. M’Kean, Mr. Wilson, Dr. Rush and Mr. Chambers.
Tuesday, November 27.
The convention14 being met pursuant to adjournment, Mr. M’Kean moved that they should proceed to the consideration of the first article of the proposed constitution.
The convention chose Messrs. Hall and Sellers and Mr. Steiner the printers of their journals3,000 copies to be in English, and 2,000 in German.
Mr. Whitehill offered a resolution, declaring that “upon all questions where the yeas and nays were called, any member might insert the reason of his vote upon the journals of the convention.”
Mr. Hartley. Sir, before the question on this motion is decided, I should wish to understand how far it extends, and whether, contrary to what I have thought was the sense of the convention, more than one question will be taken upon the proposed constitution? If the questions are to be multi-plied, and protests are to be admitted on each, I shall certainly object to the source of embarrassment, delay and expense which this motion will open. But if we are limited to the comprehensive question, will you ratify or reject the plan? then I think it may be reasonable to allow every man that pleases, to justify his assent or dissent by the motives upon which it may be founded.
Mr. M’Kean. When we were choosing our printers a few minutes ago, Mr. President, I did not think it a matter of so much importance as the adoption of the motion before us would render it; for, if every member whenever he pleases shall be at liberty to load our journals with long and labored arguments, it will be a profitable business indeed for those gentlemen that are appointed to publish them. There can, sir, but one question arise in the discussion of the plan that is submitted to us, which is simply whether we will ratify or reject it; and if the motion were narrowed to that point, I should have no objection to give it my approbation. But on its present ground we would expose ourselves to a scene of altercation highly unbecoming the character and dignity of this body.
Mr. Whitehill. I hope, Sir, the measure I have proposed, will upon consideration meet with the favor of the convention, since the arguments by which it is opposed arise chiefly from a presumption that the liberty it affords will be abused. This, Mr. President, ought not to be presumed, but rather that every member entertains so just a sense of his duty to himself and to this honorable convention, as to forbear every thing, in language or in argument, which will be unbecoming a place in your journals. In truth, Sir, unless we are allowed to insert our reasons, the yeas and nays will be a barren document, from which the public can derive no information, and the minority no justification for their conduct. On the other hand, if we are allowed to state the foundation of our votes, the merits of the constitution may be proved by the arguments of its advocates, and those who do not consider it to be an immaculate, or even salutary system, will have an opportunity to point out the defects from which their opposition originates. I think, Sir, the public have a right in so important a transaction to know the principles upon which their delegates proceed; and it is the just right of every man who is bound by his vote to be permitted to explain it. I cannot therefore withdraw or reduce the object of my motion.
Mr. Hartley. Then, Sir, if I comprehend the sense of the convention: we are limited to the one great question which shall decide the fate of the constitution; and upon that I agree in the propriety of permitting a protest. Let the opponents of the new system state their reasons fully and fairly; it will be the duty of its advocates to refute them upon the same terms, and the record of the whole will be preserved for the information of our constituents. This seems indeed to open a door for the renewal of all the arguments which have been previously advanced, but it will answer the same purpose as if protests were entered on each distinct proposition.
Mr. Whitehill. We are now, Mr. President, in the full enjoyment of the powers of the mind, and I hope we shall adopt no measure that will tend to curtail the exercise of our faculties. Upon every question that arises, it is in the power of any member to call the yeas and nays, and whenever a vote is registered in that permanent form, it is of no consequence whether it is in the intermediate or conclusive stages of the business, we ought to be permitted to promulge the reasons which have influenced our decisions. Every argument (and gentlemen seem to have conceded the propriety in one case) that will apply to entitle us to protest on the last question, will entitle us to that privilege on any preceding one: for I consider it rather as a right than an indulgence. But, Mr. President, it is said that we can only have one question in the business before us. If this is true, I see no cause to proceed further. It will be a great public saving to recur to that question at once, and we shall by such means escape the absurdity of arguing upon distinct propositions without determining anything with respect to them. Sir, there is no reason to suppose an improper use will be made of this necessary privilege. It is intended as the means of justifying to the people the conduct of those with whom they have entrusted their dearest interests, and if in the manner or the substance it is deficient or improper, the people will pronounce its condemnation. Let them therefore judge; but since we are answerable to them, let us not suppress the means of justification.
Doctor Rush. I shall certainly, Sir, object to any protest, but upon the great question, and even there it is hardly in my opinion proper or necessary. Those, Mr. President, who are in favor of the constitution, will be as anxious to vindicate their opinions as those who are against it; hence, whatever is advanced on one side, will draw on a reply upon the other, till the whole debates of the convention are intruded upon the journals. The expense and procrastination of this transaction would be intolerable. But, Sir, the proceedings of the convention are stamped with authenticity, and it would be dangerous to suffer protests to be inserted in them, which might contain insinuations not founded, and consequently produce here what has disgraced the legislature of Pennsylvania, a majority defending themselves from the assertions and misrepresentations of a minority. We know, Sir, of what nature the protests will be, and if they bear the complexion of the publications that have lately teemed from the press, I am sure they would not be honorable to this body. The proceedings of the convention cannot be compared in this respect to the proceedings of the legislature, where protests may lay the foundation of a future revision or repeal of the law to which they object by laying the necessary information before the people; but we can have no view either to a revision or a repeal, and therefore protests can only serve to distract and perplex the state. If, Sir, the proposed plan should be adopted by this convention, it will be the duty of every man, particularly those who have opposed it, on the fundamental principles of society, to promote its interests among the people. But if, contrary to my opinion of what is their duty, the minority should persevere in their opposition, I hope they will be left to publish in their own way, without our authority, the motives of their conduct, and let them enjoy all the advantages they may derive from the effects of that publication.
Mr. M’Kean. I shall be satisfied, Mr. President, if the object of the motion is confined to the final question; and, indeed, I do not perceive to what other motions it can extend. But it is said no harm will proceed from its adoption agreeably to its present general terms. Sir, all laws are made to prevent evil, upon a supposition that it may occur, and in the instance before us I do not only think it probable, but I have no doubt it will occur. We are again told of the conduct of the general assembly of Pennsylvania, which some gentlemen seem to imagine is an unanswerable argument upon every topic. But even there the practice of protesting has only been introduced since the revolution, nor was it before known in any province of America, or in any government in the world. Some compliment has on a former occasion been paid to my legal knowledge, with an intention however to depreciate my knowledge of parliamentary proceedings. But the truth is, Sir, that those proceedings have, both before and since the revolution, formed a great object of my studies, and it has been my lot to have been engaged likewise considerably in the practice. I therefore repeat, confidently, that no precedent of protesting is to be found anywhere but in Pennsylvania. The lords in England, indeed, enjoy, and frequently exercise the privilege; but the reason is, that they are not a representative body, nor accountable to any power for their legislative conduct but God and their consciences, and therefore from a desire to preserve their fame and honor free from suspicion and reproach, they lender this voluntary account of their actions to the world. The same motive, however, does not prevail with a representative body the members of which are, from time to time, responsible to their constituents, and may be elected or removed from their trust according to the proof of their fidelity and industry in discharging it. I have seen, sir, language by such means intruded upon the journals of the legislature of Pennsylvania, which would have disgraced a private club at a tavern. But in the British house of lords, the language of the protest is under the control of the house, and it is not uncommon to erase sentences and paragraphs, and even whole protests, from their records. But, Mr. President, there cannot be any necessity for introducing the practice here, unless indeed to indulge the vanity of some gentlemen who wish to turn authors at the public expense, to write discourses upon government, and to give them a value and consequence by incorporating them with your proceedings, to which they are not intrinsically entitled. I therefore move, sir, that the motion before you be amended, so as to restrict the right of protesting to the last great question, to adopt or reject the proposed plan.
This motion was seconded by Mr. Chambers.
Mr. Wilson 15. I am equally opposed, Mr. President, to the amendment and to the original motion. I do not wish, however, in any degree to suppress what may be spoken or done in this convention. On the contrary, I wish our proceedings may be fully known and perfectly understood by our constituents; and, to extend the scale, by all our fellow citizens of the United States. But we ought to pause and consider well before we communicate all this information at the public expense, for as the motion has been opened and explained, under the influence of that rule, our minutes may be increased to an immense volume, and yet we have just determined that 3,000 copies of them shall be printed. I certainly, sir, (as well as every other member) will have a right to enter my sentiments and arguments in the manner most satisfactory to myself, and therefore, not only what I may hereafter say, but what I have already said, in order to preserve connection and system in the reasoning, must be admitted. The press is undoubtedly free, but is it necessary to that freedom that every man’s tenets on government should be printed at the public cost ? Sir, we are here as upon many other occasions, referred to the constitution of Pennsylvania; but the privilege indulged in this respect, is, in my opinion, one of its exceptional parts, and the instances of its abuse alluded to by my honorable colleague, must excite the indignation of every friend to propriety and decency. Look at the journals of the legislature of Pennsylvania, and you will find altercations there which are adapted to the meridian of Billingsgate. In short, sir, the idea of a protest is not to be found in any other representative body, not even in that of the British house of commons; and if we must seek a lesson from other constitutions, we might, with great propriety, advert to the one before us, by which one-fifth of the members are enabled to call for the yeas and nays, but in no case is it permitted to record the reasons of a vote. Shall we then employ the whole winter in carrying on a paper war, at the expense of the state, in spreading clamor and dissension not only among our own citizens, but throughout the United States? My voice, Sir, never shall concur in rendering this room the centre from which so many streams of bitterness shall flow. Let the opponents of the proposed plan write as much as they please, let them print when they will, but I trust we shall not agree to indulge them at the expense of those who have sent us hither for a very different purpose.
Mr. Smilie. It appears, Mr. President, that on this question the gentlemen are divided among themselves.
Mr. M’Kean. No, Sir, there shall be no division. I. thought the measure totally improper, and only proposed the amendment in compliment to the members who urged the general motion. I now withdraw my amendment, and leave the question upon its original ground.
Mr. Smilie. I am sorry, Sir, that the honorable member should so suddenly have retracted his amendment, for it was more satisfactory to me than the original motion, which I wish still to be narrowed down to the final question, as, indeed, I do not perceive how it can operate on any other subject, and it will then answer every purpose to which it can be applied, without leaving room for the objection on account of the extraordinary expense. It will, indeed, appear exceedingly strange upon this important subject, that we should be denied an opportunity of declaring the reasons that influence our voteswhile we are responsible, it is our duty, and while we are bound, it is our right. Nor is it liberal or reasonable to presume that any harm can ensue from this privilege; for the apprehensions which are expressed, lest faction and clamor should be excited among the people, are highly unbecoming the citizens of a free government. An excellent author has observed, that slavery succeeds sleep, and the moment parties and political contentions subside among the people, from that moment liberty is at an end. I admit, Sir, that if the ferment rises to an extreme it is an evil; but as it originates from a blessing, those who wish to preserve their freedom must bear with its inconveniences. But what is the evil so much dreaded? We are told that protests in past times have been a dishonor and a discredit; but to whom have they been such? Certainly to those who wrote them; and so, if anything unworthy should appear in the protests upon your journals, the authors alone will be liable to the infamy and odium of their productions. But let us suppose, on the other hand, what I believe to be the real ground of opposition, that the protest should produce a change in the minds of the people, and incline them to new measures, is this an event proper either to be evaded or suppressed? I take it, Sir, that even after this convention shall have agreed to ratify the proposed plan, if the people on better information, and maturer deliberation, should think it a bad and improper form of government, they will still have a right to assemble another body, to consult upon other measures, and either in the whole, or in part, to abrogate this federal work so ratified. If this is true, and that it is true a worthy member of the late convention admits, when he says the people have at all times a power to alter and abolish government, what cause is there to fear the operation of a protest? The reasons may easily be given in public newspapers, which circulate more widely and more expedtiously than our journals, and from whatever source the information is derived, as the people have the power, they may, and I believe they will exercise it, notwithstanding the determination of this body. The allusion to the conduct of the British commons will not apply, for they are in no instance called upon to enter their yeas and nays; and after all, it appears to me to be congenial with the spirit of a free government, and if the one before us is free, it will be congenial with the principles of the proposed constitution, that where men are bound by a solemn and recorded vote, their reasons should accompany their assent or dissent, and be together transmitted to posterity.
Mr. Wilson. It is one reason of my opposition to this measure, that its objects can be effected in another manner than by inserting them in our journals, and therefore there is no pretense to load the public with an expense for diffusing what is called necessary information, but which in my opinion will terminate in the acrimony of party. But, Sir, if there were no other cause of objectionif the thing were proper in itselfthe enormous expense that it would occasion would be a conclusive ground for rejecting it. It is asked, however, what is there to fear? Sir, I repeat, that I have not the least dread at the most public and most general promulgation of what is done and spoken here. We know that the same things may as effectually, and perhaps more expeditiously, be disseminated through other channels, but let them not in their course either involve the public in expense, nor derive from our countenance a stamp of authenticity.
Mr. Whitehill. I do not think, Mr. President, that if there is any use in the proposed measure, the expense can be a sufficient reason to defeat it. The people ought to be informed of the principles upon which we have acted, and they ought to know in the clearest manner, what is the nature and tendency of the government with which we have bound them. The friends to the constitution will be pleased to receive arguments in favor of their opinions; those against it will be pleased to show to the world that their opposition does not arise merely from caprice, and the people at large will acknowledge with thanks the resulting information upon a subject so important to themselves and their latest posterity. But it is said that there are other means for accomplishing the same end, and that the press is open to those who chose to use it. This surely does not meet the object of the motion. A public paper is of a transient and perishable nature, but the journals of this house will be a permanent record for posterity, and if ever it becomes a question upon what grounds we have acted, each man will have his vote justified by the same instrument that records it. But this comparative view cannot take place through the medium of a common newspaper. As, however, it seems the general disposition, I am willing to reduce the motion to the last question, and this, at least, I hope will be acceded to. The expense cannot be so great as it is apprehended, and I really consider it essential to the discharge of the commission with which we are entrusted.
Mr. Hartley. On consideration, I do not think it necessary, Sir, to determine upon the motion at this time. It has been said on one hand, that there is no precedent but in the British house of lords, and in the legislature of Pennsylvania, for the practice of protesting; and on the other hand, it is insisted upon from the example of Pennsylvania and the important nature of the subject in discussion. But, Sir, it is certain that much misinformation and misrepresentation have at all times proceeded from public bodies. At present, therefore, I wish the question to be waived; otherwise, I shall vote against it, although at a future period, when the reasons are produced, I may be disposed to concur.
Mr. Whitehill. The gentleman’s idea of a postponement amounts to this: If we like your reasons when we see them, we will permit you to enter them; if we do not, why we will withhold our consent. It is strange to observe how often members change their opinions on this subject. When I asked a general power to protest, it was said, we will not agree to that, but we think you ought to enjoy it on the last great question; then when we narrow our request to that point, even that is refused. Precedent, sir, cannot be adduced on this occasion, for a similar situation never had occurred before in the history of the world, nor do we know of any body of men assembled with similar powers to investigate so interesting a subject. The importance and singularity of the business must place it beyond any former rule.
Mr. Wayne. As it is probable this subject may hereafter be considered in a different and more proper point of view, I am in favor of the postponement. In the interim the usual channel of expressing their disapprobation of this system are open to the opposition. It has already been tried; and I cannot consent that discord and discontent should be propagated through the state at the public expense, particularly as every information may be given in another manner.
Mr. Wilson. Sir, I am against the postponement for two reasonsfirst, because I would not indulge a hope which it is not intended to gratify, and secondly, because I should wish as soon as possible to know the fate of the present motion, that every member may be prepared with his reasons if it should be adopted, and not have them to look for at the close of the business. But we are again asked, why suppress the species of information to be propagated by the proposed protests? I thought this question had already been answered satisfactorily, when it was said that the public ought not to be loaded with so extraordinary an expense. In truth, sir, the newspapers will answer every proper purpose; and though it is said they are of a transient nature, yet if the reasons are good they will even in that mode be preserved, and if they are bad, I hope we shall not agree to perpetuate at the public cost what ought to be consigned immediately to oblivion. It is added that the expense will be small. Let us enquire then, what will be the consequence of this vote? The minority, dissatisfied with the event of this important business, will first wish to file their reasons, and it would be improper and unjust to deny them the necessary time to digest and arrange them in the best manner. These reasons cannot be answered till they appear, and though they may not possess real merit, they may be plausible and specious, therefore some time will be necessarily given to the majority for framing a replication; and so on through an endless succession of assertion and reply. For my part, I shall certainly expect to be allowed a sufficient time to state my reasons, not only those I have already delivered, but likewise those I may hereafter, in the most accurate manner I can; but, as I am perhaps more accustomed to composition than other gentlemen, I shall not ask for that purpose more than two or three months. Shall we then, Sir, indulge this procrastinating plan at the expense of two or three hundred dollars a day, which is the daily expense of this meeting? I hope we shall have a greater regard for the interests of our constituents.
Mr. Whitehill and Mr. Smilie repeated some of the former arguments, and concluded with observing that if the motion was negatived, their constituents would at least observe that they were anxious to show the grounds of their conduct, which they were refused the opportunity of doing.
On taking the question there appeared a very great majority against the motion.
Mr. M’ Kean then rose and recommended candor and forbearance in the investigation of this important subject. He stated that a difference of opinion was natural to the human mind, and was not only to be found in politics, but in religion. He then traced this difference through the various sects of the Christian faith, and concluded by expressing his approbation of a legislature constituted by two branches.
The convention adjourned to meet to-morrow at half past nine o’clock.
Wednesday, November 28.
The16 convention met pursuant to adjournment.
Mr. Wilson. Mr. President, I shall now beg leave to trouble you with a few observations upon the preamble to the proposed constitution. In delivering my sentiments on a former day, I had occasion to show that the supreme power of government was the inalienable and inherent right of the people, and the system before us opens with a practical declaration of that principle. Here, Sir, it is expressly announced: “We, the people of the United States, do ordain, constitute, and establish.” And those who can ordain and establish, may certainly repeal or annul the work of government, which in the hands of the people, is like clay in the hands of the potter, and may be moulded into any shape they please. This single sentence in the preamble is tantamount to a volume, and contains the essence of all the bills of rights that have been or can be devised; for it establishes at once, that in the great article of government, the people have a right to do what they please. It is with pride, Mr. President, I remark the difference between the terms of this constitution, and the British declaration of rights, or even their boasted Magna Charta. For, Sir, from what source does Magna Charta derive the liberties of the people? The very words of that celebrated instrument declare them to be the gift or grant of the king; and under the influence of that doctrine, no wonder the people should then and at subsequent periods wish to obtain some evidence of their formal liberties by the concessions of petitions and bills of right. But here, Sir, the fee simple of freedom and government is declared to be in the people, and it is an inheritance with which they will not part.
Mr. Smilie. I expected, Mr. President, that the honorable gentleman would have proceeded to a full and explicit investigation of the proposed system, and that he would have made some attempts to prove that it was calculated to promote the happiness, power and general interests of the United States. I am sorry that I have been mistaken in this expectation, for surely the gentleman’s talents and opportunities would have enabled him to furnish considerable information upon this important subject; but I shall proceed to make a few remarks upon those words in the preamble of this plan, which he has considered of so super-excellent a quality. Compare them, Sir, with the language used in forming the state constitution, and however superior they may be to the terms of the great charter of England; still, in common candor, they must yield to the more sterling expressions employed in this act. Let these speak for themselves:
“That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are the enjoying and defending life and liberty, acquiring possessing and protecting property, and pursuing and obtaining happiness and safety.
“That the people of this state have the sole, exclusive and inherent right of governing and regulating the internal police of the same.
“That all power being originally inherent in, and consequently derived from the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.
“That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community. And that the community bath an indubitable, unalienable, and indefeasible right to reform, alter or abolish government in such manner as shall be by that community judged most conducive to the public weal.”
But the gentleman takes pride in the superiority of this short preamble when compared with Magna Chartawhy, sir, I hope the rights of men are better understood at this day than at the framing of that deed, and we must be convinced that civil liberty is capable of still greater improvement and extension, than is known even in its present cultivated state. True, sir, the supreme authority naturally rests in the people, but does it follow, that therefore a declaration of rights would be superfluous? Because the people have a right to alter and abolish government, can it therefore be inferred that every step taken to secure that right would be superfluous and nugatory? The truth is, that unless some criterion is established by which it could be easily and constitutionally ascertained how far our governors may proceed, and by which it might appear when they transgress their jurisdiction, this idea of altering and abolishing government is a mere sound without substance. Let us recur to the memorable declaration of the 4th of July, 1776. Here it is said :
“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
“We hold these truths to be self-evident; that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that when any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
Now, Sir, if in the proposed plan, the gentleman can show any similar security for the civil rights of the people, I shall certainly be relieved from a weight of objection to its adoption, and I sincerely hope, that as he has gone so far, he will proceed to communicate some of the reasons (and undoubtedly they must have been powerful ones) which induced the late federal convention to omit a bill of rights, so essential in the opinion of many citizens to a perfect form of government.
Mr. M’Kean.I conceived, Mr. President, that we were at this time to confine our reasoning to the first article, which relates to the legislative power composed of two branches, and the partial negative of the President. Gentlemen, however, have taken a more extensive field, and have employed themselves in animadverting upon what has been omitted, and not upon what is contained in the proposed system. It is asked, Sir, why a bill of rights is not annexed to the constitution? The origin of bills of rights has been referred to, and we find that in England they proceed upon the principle that the supreme power is lodged in the king and not in the people, so that their liberties are not claimed as an inherent right, but as a grant from the sovereign. The great charter rests on that footing, and has been renewed and broken above 30 times. Then we find the petition of rights in the reign of Charles I, and lastly, the declaration of rights on the accession of the Prince of Orange to the British throne. The truth is, Sir, that bills of rights are instruments of modern invention, unknown among the ancients, and unpractised but by the British nation, and the governments descended from them. For though it is said that Poland has a bill of rights, it must be remembered that the people have no participation in that government. Of the constitutions of the United States, there are but five out of the thirteen which have bills of rights. In short, though it can do no harm, I believe, yet it is an unnecessary instrument, for in fact the whole plan of government is nothing more than a bill of rightsa declaration of the people in what manner they choose to be governed. If, Sir, the people should at any time desire to alter and abolish their government, I agree with my honorable colleague that it is in their power to do so, and I am happy to observe, that the constitution before us provides a regular mode for that event. At present my chief object is to call upon those who deem a bill of rights so essential, to inform us if there are any other precedents than those I have alluded to, and if there is not, the sense of mankind and of nations will operate against the alleged necessity.
Mr. Wilson. 17 Mr. President, we are repeatedly called upon to give some reason why a bill of rights has not been annexed to the proposed plan. I not only think that enquiry is at this time unnecessary and out of order, but I expect, at least, that those who desire us to show why it was omitted, will furnish some arguments to show that it ought to have been inserted; for the proof of the affirmative naturally falls upon them. But the truth is, Sir, that this circumstance, which has since occasioned so much clamor and debate, never struck the mind of any member in the late convention till, I believe, within three days of the dissolution of that body, and even then of so little account was the idea that it passed off in a short conversation, without introducing a formal debate or assuming the shape of a motion. For, Sir, the attempt to have thrown into the national scale an instrument in order to evince that any power not mentioned in the constitution was reserved, would have been spurned at as an insult to the common understanding of mankind. In civil government it is certain that bills of rights are unnecessary and useless, nor can I conceive whence the contrary notion has arisen. Virginia has no bill of rights, and will it be said that her constitution was the less free?
Mr. Smilie. I beg leave to observe, Mr. President, that although it has not been inserted in the printed volume of state constitution, yet I have been assured by Mr. Mason that Virginia has a bill of rights.
Mr. Wilson. I do not rely upon the information of Mr. Mason or of any other gentleman on a question of this kind, but I refer to the authenticity of the volume which contains the state constitutions, and in that Virginia has no bill of rights. But, Sir, has South Carolina no security for her liberties?that state has no bill of rights. Are the citizens of the eastern shore of the Delaware more secured in their freedom, or more enlightened on the subject of government, than the citizens of the western shore? New Jersey has no bill of rights, New York has none, Connecticut has none, and Rhode Island has none. Thus, Sir, it appears from the example of other states, as well as from principle, that a bill of rights is neither an essential nor a necessary instrument in framing a system of government, since liberty may exist and be as well secured without it. But it was not only unnecessary, but on this occasion it was found impracticablefor who will be bold enough to undertake to enumerate all the rights of the people?and when the attempt to enumerate them is made, it must be remembered that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted. So it must be with a bill of rights, and an omission in stating the powers granted to the government, is not so dangerous as an omission in recapitulating the rights reserved by the people. We have already seen the origin of magna charta, and tracing the subject still further we find the petition of rights claiming the liberties of the people, according to the laws and statutes of the realm, of which the great charter was the most material, so that here again recourse is had to the old source from which their liberties are derived, the grant of the king. It was not till the revolution that the subject was placed upon a different footing, and even then the people did not claim their liberties as an inherent right, but as the result of an original contract between them and the sovereign. Thus, Mr. President, an attention to the situation of England will show that the conduct of that country in respect to bills of rights, cannot furnish an example to the inhabitants of the United States, who by the revolution have regained all their natural rights, and possess their liberty neither by grant nor contract. In short, Sir, I have said that a bill of rights would have been improperly annexed to the federal plan, and for this plain reason that it would imply that whatever is not expressed was given, which is not the principle of the proposed constitution.
Mr. Smilie. The arguments which have been urged, Mr. President, have not, in my opinion, satisfactorily shown that a bill of rights would have been an improper, nay, that it is not a necessary appendage to the proposed system. As it has been denied that Virginia possesses a bill of rights, I shall on that subject only observe that Mr. Mason, a gentleman certainly of great information and integrity, has assured me that such a thing does exist, and I am persuaded I shall be able at a future period to lay it before the convention. But, Sir, the state of Delaware has a bill of rights, and I believe one of the honorable members (Mr. M’ Kean) who now contests the necessity and propriety of that instrument, took a very conspicuous part in the formation of the Delaware government. It seems, however, that the members of the federal convention were themselves convinced, in some degree, of the expediency and propriety of a bill of rights, for we find them expressly declaring that the writ of habeas corpus and the trial by jury in criminal cases shall not be suspended or infringed. How does this indeed agree with the maxim that whatever is not given is reserved? Does it not rather appear from the reservation of these two articles that everything else, which is not specified, is included in the powers delegated to the government? This, Sir, must prove the necessity of a full and explicit declaration of rights; and when we further consider the extensive, the undefined powers vested in the administrators of this system, when we consider the system itself as a great political compact between the governors and the governed, a plain, strong, and accurate criterion by which the people might at once determine when, and in what instance their rights were violated, is a preliminary, without which, this plan ought not to be adopted. So loosely, so inaccurately are the powers which are enumerated in this constitution defined, that it will be impossible, without a test of that kind, to ascertain the limits of authority, and to declare when government has degenerated into oppression. In that event the contest will arise between the people and the rulers: “You have exceeded the powers of your office, you have oppressed us,” will be the language of the suffering citizen. The answer of the government will be short”We have not exceeded our power; you have no test by which you can prove it.” Hence, Sir, it will be impracticable to stop the progress of tyranny, for there will be no check but the people, and their exertions must be futile and uncertain; since it will be difficult, indeed, to communicate to them the violation that has been committed, and their proceedings will be neither systematical nor unanimous. It is said, however, that the difficulty of framing a bill of rights was insurmountable; but, Mr. President, I cannot agree in this opinion. Our experience, and the numerous precedents before us, would have furnished a very sufficient guide. At present there is no security even for the rights of conscience, and under the sweeping force of the sixth article, every principle of a bill of rights, every stipulation for the most sacred and invaluable privileges of man, are left at the mercy of government.
Mr. Whitehill. I differ, Sir, from the honorable member from the city, 18 as to the impropriety or necessity of a bill of rights. If, indeed, the constitution itself so well defined the powers of the government that no mistake could arise, and we were well assured that our governors would always act right, then we might be satisfied without an explicit reservation of those rights with which the people ought not, and mean not to part. But, Sir, we know that it is the nature of power to seek its own augmentation, and thus the loss of liberty is the necessary consequence of a loose or extravagant delegation of authority. National freedom has been, and will be the sacrifice of ambition and power, and it is our duty to employ the present opportunity in stipulating such restrictions as are best calculated to protect us from oppression and slavery. Let us then, Mr. President, if other countries cannot supply an adequate example, let us proceed upon our own principles, and with the great end of government in view, the happiness of the people, it will be strange if we err. Government, we have been told, Sir, is yet in its infancy: we ought not therefore to submit to the shackles of foreign schools and opinions. In entering into the social compact, men ought not to leave their rulers at large, but erect a permanent land-mark by which they may learn the extent of their authority, and the people be able to discover the first encroachments on their liberties. But let us attend to the language of the system before us. ” We the people of the United States,” is a sentence that evidently shows the old foundation of the union is destroyed, the principle of confederation excluded, and a new and unwieldy system of consolidated empire is set up, upon the ruins of the present compact between the states. Can this be denied? No, Sir: It is artfully indeed, but it is incontrovertibly designed to abolish the independence and sovereignty of the states individually, an event which cannot be the wish of any good citizen of America, and therefore it ought to be prevented, by rejecting the plan which is calculated to produce it. What right indeed have we in the manner here proposed to violate the existing confederation? It is declared, that the agreement of nine states shall be sufficient to carry the new system into operation, and consequently to abrogate the old one. Then, Mr President, four of the present confederated states may not be comprehended in the compact: shall we, Sir, force these dissenting states into the measure? The consequences of that attempt are evidently such as no man can either justify or approve. But reverse the ideawould not these states have a fair pretext to charge the rest with an unconstitutional and unwarrantable abandoment of the nature and obligation of the union of 1776? And having shown sufficient reason why they could not accede to the proposed government, would they not still be entitled to demand a performance of the original compact between the states? Sir, these questions must introduce a painful anticipation of the confusion, contest, and a civil war, which, under such circumstances, the adoption of the offered system must produce. It will be proper, perhaps, to review the origin of this business. It was certainly, Mr. President, acknowledged on all hands, that an additional share of power for federal purposes ought to be delegated to Congress; and with a view to enquire how far it was necessary to strengthen and enlarge the jurisdiction of that body, the late convention was appointed under the authority, and by legislative acts of the several states. But how, Sir, did the convention act upon this occasion? Did they pursue the authority which was given to them? By the State of Pennsylvania that authority was strictly defined in the following words:
” And the said Thomas Mifflin, Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitzsimons, James Wilson and Governeur Morris, Esqrs., or any four of them, are hereby constituted and appointed deputies from this state, with powers to meet such deputies as may be appointed and authorized by the other states to assemble in the said convention at the city aforesaid, and to join with them in devising, deliberating on and discussing all such alterations and further provisions as may be necessary to render the federal constitution fully adequate to the exigencies of the union; and in reporting such act or acts for that purpose to the United States in Congress assembled, as when agreed to by them, and duly confirmed by the several states, will effectually provide for the same.”
Thus, Sir, it appears that no other power was given to the delegates from this state (and I believe the power given by the other states was of the same nature and extent) than to increase in a certain degree the strength and energy of Congress; but it never was in the contemplation of any man that they were authorized to dissolve the present union, to abrogate the state sovereignties, and to establish one comprehensive government, novel in its structure, and in its probable operation oppressive and despotic. Can it then be said that the late convention did not assume powers to which they had no legal title? On the contrary, Sir, it is clear that they set aside the laws under which they were appointed, and under which alone they could derive any legitimate authority, they arrogantly exercised any powers that they found convenient to their object, and in the end they have overthrown that government which they were called upon to amend, in order to introduce one of their own fabrication.
True 19 it is, Mr. President, that if the people intended to engage in one comprehensive system of continental government, the power to frame that system must have been conferred by then; for the legislatures of the states are sworn to preserve the independence of their respective constitutions, and therefore they could not, consistently with their most sacred obligations, authorize an act which sacrificed the individual to the aggregate sovereignty of the states. But it appears from the origin and nature of the commission under which the late convention assembled, that a more perfect confederation was the only object submitted to their wisdom, and not, as it is attempted by this plan, the total destruction of the government of Pennsylvania, and of every other state. So far, Sir, the interference of the legislatures was proper and efficient; but the moment the convention went beyond that object, they ceased to act under any legitimate authority, for the assemblies could give them none, and it cannot be pretended that they were called together by the people; for, till the preamble was produced, it never was understood that the people at large had been consulted upon the occasion, or that otherwise than through their representatives in the several states, they had given a sanction to the proceedings of that body. If, indeed, the federal convention, finding that the old system was incapable of repair, had represented the incurable defects to Congress, and advised that the original and inherent power of the people might be called into exercise for the institution of a new government, then, Sir, the subject would have come fairly into view, and we should have known upon what principles we proceeded. At present we find a convention appointed by one authority, but acting under the arbitrary assumption of another; and instead of transacting the business which was assigned to them, behold! they have produced a work of supererogation, after a mysterious labor of three months. Let us, however, Sir, attend for a moment to the constitution. And here we shall find, in a single line, sufficient matter for weeks of debate, and which it will puzzle any one member to investigate and define. But, besides the powers enumerated, we find in this constitution an authority is given to make all laws that are necessary to carry it effectually into operation, and what laws are necessary is a consideration left for Congress to decide. In constituting the representative body, the interposition of the Congress is likewise made conclusive; for, with the power of regulating the place and manner of elections, it is easy to perceive that the returns will always be so managed as to answer their purpose. It is strange to mark, however, what a sudden and striking revolution has taken place in the political sentiments of America; for, Sir, in the opening of our struggle with Great Britain, it was often insisted that annual parliaments were necessary to secure the liberties of the people, and yet it is here proposed to establish a house of representatives which shall continue for two, a senate for six, and a president for four years! What is there in this plan indeed, which can even assure us that the several departments shall continue no longer in office? Do we not know that an English parliament elected for three years, by a vote of their own body, extended their existence to seven, and with this example, Congress possessing a competent share of power may easily be tempted to exercise it. The advantages of annual elections are not at this day to be taught, and when every other security was withheld, I should still have thought there was some safety in the government, had this been left. The seats of Congress being held for so short a period, and by a tenure so precarious as popular elections, there could be no inducement to invade the liberties of the people, nor time enough to accomplish the schemes of ambition and tyranny. But when the period is protracted, an object is presented worthy of contention, and the duration of the office affords an opportunity for perpetuating the influence by which it was originally obtained. Another power designed to be vested in the new government, is the superlative power of taxation, which may be carried to an inconceivable excess, swallowing tip every object of taxation, and consequently plundering the several states of every means to support their governments, and to administer their laws. Then, Sir, can it longer be doubted that this is a system of consolidation? That government which possesses all the powers of raising and maintaining armies, of regulating and commanding the militia, and of laying imposts and taxes of every kind, must be supreme, and will (whether in twenty or in one year, it signifies little to the event) naturally absorb every subordinate jurisdiction. It is in vain, Sir, to flatter ourselves that the forms of popular elections will be the means of self-preservation, and that the officers of the proposed government will uniformly act for the happiness of the peoplefor why should we run a risk which we may easily avoid? The giving such extensive and undefined power is a radical wrong that cannot be justified by any subsequent merit in the exercise; for in framing a new system, it is our duty rather to indulge a jealousy of the human character, than an expectation of unprecedented perfection. Let us, however, suppose what will be allowed to be at least possible, that the powers of this government should be abused, and the liberties of the people infringed; do any means of redress remain with the states or with the people at large, to oppose and counteract the influence and oppression of the general government? Secret combinations, partial insurrections, sudden tumults may arise; but these being easily defeated and subdued, will furnish a pretence for strengthening that power which they were intended to overthrow. A bill of rights, Mr. President, it has been said, would not only be unnecessary, but it would be dangerous, and for this special reason, that because it is not practicable to enumerate all the rights of the people, therefore it would be hazardous to secure such of the rights as we can enumerate! Truly, Sir, I will agree that a bill of rights may be a dangerous instrument, but it is to the views and projects of the aspiring ruler, and not the liberties of the citizen. Grant but this explicit criterion, and our governors will not venture to encroach; refuse it, and the people cannot venture to complain. From the formal language of magna charta we are next taught to consider a declaration of rights as superfluous; but, Sir, will the situation and conduct of Great Britian furnish a case parallel to that of America? It surely will not be contended that we are about to receive our liberties as a grant or concession from any power upon earth; so that if we learn anything from the English charter, it is this: that the people having negligently lost or submissively resigned their rights into the hands of the crown, they were glad to recover them upon any terms; their anxiety to secure the grant by the strongest evidence will be an argument to prove, at least, the expediency of the measure, and the result of the whole is a lesson instructing us to do by an easy precaution, what will hereafter be an arduous and perhaps insurmountable task. But even in Great Britain, whatever may be the courtesy of their expressions, the matter stands substantially on a different footing, for we know that the divine right of kings is there, as well as here, deemed an idle and chimerical tale. It is true, the preamble to the great charter declares the liberties enumerated in that instrument, to be the grant of the sovereign, but the hyperbolical language of the English law has likewise declared that “the king can do no wrong,” and yet, from time to time, the people have discovered in themselves the natural source of power, and the monarchs have been made painfully responsible for their action. Will it still be said, that the state governments would be adequate to the task of correcting the usurpations of Congress? Let us not, however, give the weight of proof to the boldness of assertion; for, if the opposition is to succeed by force, we find both the purse and the sword are almost exclusively transferred to the, general government; and if it is to succeed by legislative remonstrance, we shall find that expedient rendered nugatory by the law of Congress, which is to be the supreme law of the land. Thus, Mr. President, must the powers and sovereignty of the several states be eventually destroyed, and when, at last, it may be found expedient to abolish that connection which, we are told essentially exists between the federal and individual legislatures, the proposed constitution is amply provided with the means in that clause which assumes the authority to alter or prescribe the place and manner of elections. I feel, Mr. President, the magnitude of the subject in which I am engaged, and although I am exhausted with what I have already advanced, I am conscious that the investigation is infinitely far from being complete. Upon the whole, therefore, I wish it to be seriously considered, whether we have a right to leave the liberties of the people to such future constructions and expositions as may possibly be made upon this system; particularly when its advocates, even at this day, confess that it would be dangerous to omit anything in the enumeration of a bill of rights, and according to their principle, the reservation of the habeas corpus, and trial by jury in criminal cases, may hereafter be construed to be the only privileges reserved by the people. I am not anxious, Mr. President, about formsit is the substance which I wish to obtain; and therefore I acknowledge, if our liberties are secured by the frame of government itself, the supplementary instrument of a declaration of rights may well be dispensed with. But, Sir, we find no security there, except in the two instances referred to, and it will not, I hope, any longer be alleged that no security is requisite, since those exceptions prove a contrary sentiment to have been entertained by the very framers of the proposed constitution. The question at present, Sir, is, however, of a preliminary kinddoes the plan now in discussion propose a consolidation of the states? and will a consolidated government be most likely to promote the interests and happiness of America? If it is satisfactorily demonstrated, that in its principles or in its operation, the dissolution of the state sovereignties is not a necessary consequence, I shall then be willing to accompany the gentlemen on the other side in weighing more particularly its merits and demerits. But my judgment, according to the information I now possess, leads me to anticipate the annihilation of the several state governmentsan event never expected by the people, and which would, I fervently believe, destroy the civil liberties of America.
Mr. Wilson. 20 I am willing, Mr. President, to agree with the honorable member who has just spoken, that if this system is not calculated to secure the liberties and happiness of the United States, it should not be adopted; but, on the contrary, if it provides an adequate security for the general liberties and happiness of the people, I presume it ought not to be rejected. Before I comment upon the principles which have brought us to this issue, I beg leave to make one general remark. Liberty and happiness have, Sir, a powerful enemy on each hand;on the one hand there is tyranny, on the other there is licentiousness. To guard against the latter, it is necessary that adequate powers should be given to the government, and to protect us from the former, it is requisite that that those powers should be properly distributed. Under this consideration, let us now regard the proposed system; and I freely confess that if its adoption will necessarily be followed by the annihilation of the state governments, the objection is of very great force, and ought to be seriously weighed. The inference, however, appears rather unnatural that a government should be expressly calculated to produce the destruction of other governments, upon which its own existence must entirely depend; for, Mr. President, it is capable of demonstration, that if the state governments fall, the general government must likewise be involved in one common ruin. Is it not evident, Sir, when we particularly examine the structure of the proposed system, that the operation of the federal legislature necessarily presupposes the existence of the legislatures of the several States? Can the Congress, the president, or even the judiciary department, survive the dissolution of those powers in the separate governments, from which they essentially derive their origin, and on which they must forever depend for their renovation? No, sir! For, we find that the House of Representatives is to be composed of persons returned by the suffrage of freemen who are qualified to vote for the members of the most numerous branch of the state legislature, which legislature must necessarily exist, or the only criterion for supplying the popular department of the federal government will be extinct. The senate, which is to be chosen by the several legislatures, cannot consequently be appointed unless those legislatures exist; which is likewise the case in respect to the president, as this office is to be filled by electors nominated by the respective state legislatures; and, lastly, the judges are to be commissioned by the president and senate, who cannot appoint, unless they are themselves first appointed, and that, it appears, must depend upon the existence of the state legislatures. Thus, Mr. President, by a clear deduction, it is evident that the existence and efficiency of the general government presupposes the existence and full operation of the separate governments. For you can never prove a person to have been chosen, till you have proved that he was the choice of persons qualified to vote; you cannot prove any man to be entitled to elect a member of the house of representatives, till you have proved that he is qualified to elect a member of the most numerous branch of the state legislature. But, Sir, it has been intimated that the design of the federal convention was to absorb the state governments. This would introduce a strange doctrine indeed, that one body should seek the destruction of another, upon which its own preservation depends, or that the creature should eat up and consume the creator. The truth is, Sir, that the framers of this system were particularly anxious, and their work demonstrates their anxiety, to preserve the state governments unimpairedit was their favorite object; and, perhaps, however proper it might be in itself, it is more difficult to defend the plan on account of the excessive caution used in that respect than from any other objection that has been offered here or elsewhere. Hence, we have seen each state, without regard to their comparative importance, entitled to an equal representation in the senate, and a clause has been introduced which enables two-thirds of the state legislature at any time to propose and effectuate alterations in the general system. But, Mr. President, though in the very structure of the plan the concomitant duration of the state governments is always pre-supposed, yet their power is not the only one intended to be recognized and established. The power of the people, Sir, is the great foundation of the proposed system, a power totally unknown in the present confederation, but here it mediately pervades every department and is immediately exercised in the house of representatives. I trust it is unnecessary to dwell longer upon this subject; for, when gentlemen assert that it was the intention of the federal convention to destroy the sovereignty of the states, they must conceive themselves better qualified to judge of the intention of that body than its own members, of whom not one, I believe, entertained so improper an idea. Intended it, Sir! how was this information obtained? I trust we shall not admit these visionary interpretations, but wisely judge of the tree by its fruit. The only pretence of proof, indeed, has been taken from the work itselffrom that section which empowers the Congress to alter the place and manner of election, under which, it is said, the national government may be carried on after the state governments are totally eradicated.
This, Mr. President, is not only a proper, but a necessary power, for every government should possess the means of self-preservation. We have seen that the States may alter or amend the proposed system, if they should find it incompatible with their interest and independency, and the same reason justifies and requires that Congress should have an ultimate control over those elections, upon which its purity and existence must depend. What would otherwise be the consequence? One or more States might refuse to make any regulations upon the subject, or, might make such regulations as would be highly inconvenient and absurdif the election were appointed to be held at Pittsburgh, or, if a minority, tumultuously breaking up the legislatures, should defeat the disposition of the majority to appoint any place for that purpose, shall Congress have no authority to counteract such notorious evils, but continue in absolute dependence upon the will of a refractory State ? I say not, Sir, that these are probable events; but as they are certainly possible, it was the duty of the late convention to provide against the mischief, and to secure to the general government a power, in the dernier resort, for the more perfect organization of its constituent parts. In short, Sir, this system would be nugatory without the provision so much deprecated, as the national government must be laid prostrate before any State in the union, whose measures might at any time be influenced by faction and caprice. These, therefore, are the reasons upon which it is founded, and in spite of every perversion, it will be found only to contain the natural maxims of self-preservation. I shall take a future opportunity to remark upon the other points of the speech delivered by the member from Cumberland, and upon the general principles of the proposed constitution. Thus I have thought it proper to remark, in this early stage of the debate, because I am sensible that the imputation of subverting the State governments, either as a principle or a consequence of the plan, must if well founded prove a very important objection.
Mr. Smilie. I am happy, Mr. President, to find the argument placed upon the proper ground, and that the honorable member from the city has so fully spoken on the question, whether this system proposes a consolidation or a confederation of the states, as that is, in my humble opinion, the source of the greatest objection, which can be made to its adoption. I agree likewise with him, Sir, that it is, or ought to be, the object of all governments, to fix upon the intermediate point between tyranny and licentiousness; and therefore, it will be one of the great objects of our enquiry, to ascertain how far the proposed system deviates from that point of political happiness. For my part, I will readily confess, that it appears to be well guarded against licentiousness, but I am apprehensive it has deviated a little on the left hand, and rather invites than guards against the approaches of tyranny. I think however, Mr. President, it has been clearly argued, that the proposed system does not directly abolish, the governments of the several States, because its organization, and, for some time, perhaps, its operations, naturally pre-suppose their existence. But, Sir, it is not said, nor is thought, that the words of this instrument expressly announce that the sovereignty of the several States, their independency, jurisdiction, and power, are at once absorbed and annihilated by the general government. To this position and to this alone, the arguments of the honorable gentlemen can effectually apply, and there they must undoubtedly hold as long as the forms of State Government remain, at least, till a change takes place in the federal constitution. It is, however, upon other principles that the final destruction of the individual governments is asserted to be a necessary consequence of their association under this general form,for, Sir, it is the silent but certain operation of the powers, and not the cautious, but artful tenor of the expressions contained in this system, that can excite terror, or generate oppression. The flattery of language was indeed necessary to disguise the baneful purpose, but it is like the dazzling polish bestowed upon an instrument of death; and the visionary prospect of a magnificent, yet popular government, was the most specious mode of rendering the people accessory to the ruin of those systems which they have so recently and so ardently labored to establish. Hence, Sir, we may trace that passage which has been pronounced by the honorable delegate to the late convention with exultation and applause; but when it is declared that “We the people of the United States do ordain and establish this constitution,” is not the very foundation a proof of a consolidated government, by the manifest subversion of the principle that constitutes a union of States, which are sovereign and independent, except in the specific objects of confederation? These words have a plain and positive meaning, which could not be misunderstood by those who employed them; and therefore, Sir, it is fair and reasonable to infer, that it was in contemplation of the framers of this system, to absorb and abolish the efficient sovereignty and independent powers of the several States, in order to invigorate and aggrandize the general government. The plan before us, then, explicitly proposes the formation of a new constitution upon the original authority of the people, and not an association of States upon the authority of their respective governments. On that ground, we perceive that it contains all the necessary parts of a complete system of government, the executive, legislative and judicial establishments; and when two separate governments are at the same time in operation, over the same people, it will be difficult indeed to provide for each the means of safety and defence against the other; but if those means are not provided, it will be easily foreseen, that the stronger must eventually subdue and annihilate the weaker institution. Let us then examine the force and influence of the new system, and enquire whether the small remnant of power left to the States can be adequate even to the trifling charge of its own preservation. Here, Sir, we find the right of making laws for every purpose is invested in the future governors of America, and in this is included the uncontrolled jurisdiction over the purses of the people. The power of raising money is indeed the soul, the vital prop of legislation, without which legislation itself cannot for a moment exist. It will, however, be remarked that the power of taxation, though extended to the general government, is not taken from the States individually. Yes, Sir!but it will be remembered that the national government may take from the people just what they please, and if anything should afterwards remain, then indeed the exigencies of the State governments may be supplied from the scanty gleanings of the harvest. Permit me now, Sir, to call your attention to the powers enumerated in the 8th section of the first article, and particularly to that clause which authorizes the proposed Congress, “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” With such powers, Mr. President, what cannot the future governors accomplish? It will be said, perhaps, that the treasure, thus accumulated, is raised and appropriated for the general welfare and the common defence of the States; but may not this pretext be easily perverted to other purposes, since those very men who raise and appropriate the taxes, are the only judges of what shall be deemed the general welfare and common de-fence of the national government? If then, Mr. President, they have unlimited power to drain the wealth of the people in every channel of taxation, whether by imposts on our commercial intercourse with foreign nations, or by direct levies on the people, I repeat it, that this system must be too formidable for any single State, or even for a combination of the States, should an attempt be made to break and destroy the yoke of domination and tyranny which it will hereafter set up. If, indeed, the spirit of men, once inflamed with the knowledge of freedom, should occasionally blaze out in remonstrance, opposition and force, these symptoms would naturally excite the jealousy of their rulers, and tempt them to proceed in the career of usurpation, till the total destruction of every principle of liberty should furnish a fit security for the exercise of arbitrary power. The money which has been raised from the people, may then be effectually employed to keep them in a state of slavish subjection: the militia, regulated and commanded by the officers of the general government, will be warped from the patriotic nature of their institution, and a standing army, that most prevailing instrument of despotism, will be ever ready to enforce obedience to a government by which it is raised, supported and enriched. If, under such circumstances, the several States should presume to assert their undelegated rights, I ask again what balance remains with them to counteract the encroachments of so potent a superior? To assemble a military force would be impracticable; for the general government, foreseeing the attempt would anticipate the means, by the exercise of its indefinite control over the purses of the people; and, in order to act upon the consciences as well as the persons of men, we find it is expressly stipulated, that every officer of the State government shall be sworn to support the constitution of the United States. Hence likewise, Sir, I conclude that in every point of rivalship, in every contention for power on the one hand and for freedom on the other, the event must be favorable to the views and pretensions of a government gifted with so decisive a pre-eminence. Let us, however, regard this subject in another light. What, Mr. President, will be the feelings and ideas of the people, when by the operation of the proposed system, they are exposed to such accumulated expense, for the maintenance of the general government? Is it not easy to foresee, that however the States may be disposed individually to preserve the parade of independence and sovereignty, the people themselves will become indifferent, and at last, averse to the continuance of an expensive form, from which they derive no advantage? For, Sir, the attachment of citizens to their government and its laws is founded upon the benefits which they derive from them, and it will last no longer than the duration of the power to confer those benefits. When, therefore, the people of the respective States shall find their governments grown torpid, and divested of the means to promote their welfare and interests, they will not, Sir, vainly idolize a shadow, nor disburse their hard earned wealth without the prospect of a compensation. The constitution of the States having become weak and useless to every beneficial purpose, will be suffered to dwindle and decay, and thus if the governors of the Union are not too impatient for the accomplishment of unrivalled and absolute dominion, the destruction of State jurisdiction will be produced by its own insignificance. Having now, Mr. President, shown that eventually this system will establish a consolidated government, though the intention is not expressly avowed, I will take some notice of the honorable member’s principle, culled from the mode of election which is here prescribed. Sir, we do not upon this occasion contend for forms, which it is certain may exist long after the substance has forever perished. It is well remembered that the Roman senate continued to meet in all its ceremonies, long after they had lost their power, and the liberty of Rome had been sacrificed to the most horrid tyranny. Such, Sir, must be the case with the State legislature, which will necessarily degenerate into a mere name, or at most settle in a formal board of electors, periodically assembled to exhibit the servile farce of filling up the Federal representation.
Mr. M’Kean. The first objection offered, Mr. President, to the adoption of the proposed system, arises from the omission of a bill of rights, and the gentlemen in the opposition have gone (contrary, I think, to their former wishes, which were to discuss the plan minutely, section after section,) from the immediate objects of the first article into an investigation of the whole system. However, as they have taken this wide and extensive path, I shall, though reluctantly, pursue them. It appears then, Sir, that there are but seven nations in the world which have incorporated a bill or declaration of rights into their system of government. The ancients were unacquainted with any instrument of that kind and till the recent establishment of the thirteen United States, the moderns, except Great Britain and Poland (if the Pacta Conventa of that kingdom may be considered), have not recognized its utility. Hence, Sir, if any argument is to be drawn from the example of other countries, we find that far the greatest number, and those most eminent for their power and wisdom, have not deemed a declaration of rights in any degree essential to the institution of government or the preservation of civil liberty. But, Sir, it has already been incontrovertibly shown that on the present occasion a bill of rights was totally unnecessary, and that it might be accompanied with some inconveniency and danger, if there was any defect in the attempt to enumerate the privileges of the people. This system proposes a union of thirteen sovereign and independent states, in order to give dignity and energy to the transaction of their common concerns; it would be idle therefore to countenance the idea that any other powers were delegated to the general government than those specified in the constitution itself, which, as I have before observed, amounts in fact to a bill of rightsa declaration of the people in what manner they choose to be governed. I am happy, Mr. President, to find that no objection has been taken to the forms and structure of the proposed system, to the two branches of legislation, the unity of the executive power, and the qualified negative upon laws which is vested in the president. Objections upon the subject, indeed, might have easily been answered, since it is evident without the distribution of powers here made, the legislature would naturally have absorbed the authority of every other department, but particularly of the executive. It has, I am persuaded, been satisfactorily proved by my honorable colleague, that the suggestion which represent this system as being expressly calculated to annihilate the soverignty and independence of the States, is groundless and delusive; for he made it evident the existence of the States is a thing without which the federal functions cannot be organized and supplied, and therefore, the dissolution of the individual and general government must be concurrentif the state legislatures fail, the Congress of the United States must likewise be at an end, inasmuch as the annihilation of that power which is alone competent to elect, must be followed by the annihilation of the body which is the object of its election. But it is argued that the power of changing the time and place of elections, transfers to Congress an authority which ought exclusively to reside in the respective states, and which will eventually enable that body to act independent of the several governments. In this respect, Sir, it must be remembered that in the first instance the states are authorized to regulate the time, place and proceedings of elections, and while they act with propriety, there can be little reason to suppose Congress will officiously interfere. But if, as it has been suggested by the honorable member from the city, an inconvenient situation should be appointed for holding the election, or if the time and manner should be made inconsistent with the principles of a pure and constitutional election, can it be doubted that the federal government ought to be enabled to make the necessary reform in a business so essential to its own preservation and prosperity? If, for instance, the states should direct the suffrage of their citizens to be delivered viva voce, is it not necessary that the Congress should be authorized to change that mode, so injurious to the freedom of election, into the mode by ballot so happily calculated to preserve the suffrages of the citizens from bias and influence? This was one object, I am persuaded, which weighed with the late convention in framing this clause; and we farther collect their solicitude to prevent as much as possible, an undue influence of wealth and talents in the important choice of representatives, from the regulation which expressly declares that the day of election shall be the same throughout the United States. By this means it is evident that the influence which is naturally acquired by extraordinary talents, activity and wealth, will be restricted in its operation, and the great men of one district deprived of all opportunity to interfere in the elections of another. Reviewing then, Sir, the objections to the power given to the proposed government for superintending the time, place and manner of choosing its members, they seem to be the offspring of fancy, unsupported by real or probable argument, while the power itself is proved to be a wise and rational subject of delegation. It is next said, Mr. President, and it is reasoned upon as a fact, that the Congress will enjoy over the thirteen States an uncontrolled power of legislation in all cases whatsoever; and it is repeated, again and again, in one common phrase, that the future governors may do what they please with the purses of the people, for there is neither restriction nor reservation in the constitution which they will be appointed to administer. Sir, there is not a power given in the article before us that is not in its expression, clear, plain, and accurate, and in its nature proper and absolutely necessary to the great objects of the union. To support this assertion, permit me to recapitulate the contents of the article immediately before us. First, then, it is declared that “the Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” Thus, Sir, as it is not the object of this government merely to make laws for correcting wicked and unruly men; but to protect the citizens of an extensive empire from exterior force and injury, it was necessary that powers should be given adequate to the discharge of so important a duty. But the gentlemen exclaim that here lies the source of excessive taxation, and that the people will be plundered and oppressed. What is there, however, that should render it a more dangerous trust in the hands of the general than of a particular government? For, is it not as much in the power of the State legislatures at this day to do all this mischief, as it will be hereafter in the power,of Congress? The truth is, Sir, that the great restraint upon excessive taxation arises from this consideration, that the same act by which a representative imposes a tax upon his constituents, extends to himself and all his connections, friends and acquaintance, so that he never will attempt to lay a greater burthen upon the people than he is convinced is necessary for the public service and easy to be borne. Besides this natural security, which applies equally to the individual and the general government of the States, the people will, from time to time, have it in their power to remove those persons who have promoted any measure that tends to injure and oppress them. In short, Sir, it seems that the honorable members are so afraid the Congress will do some mischief, that they are determined to deny them the power to do any good. But we must divest ourselves of this extravagant jealousy, and remember that it is necessary to repose some degree of confidence in the administration of a government, from which we expect the revival of commerce, the encouragement of arts, and the general happiness of the people. To whose judgment, indeed, could be so properly referred the determination of what is necessary to accomplish those important objects, as the judgment of a Congress elected, either directly or indirectly, by all the citizens of the United States ? For if the people discharge their duty to themselves, the persons that compose that body will be the wisest and best men amongst us;the wisest to discover the means of common defence and general welfare, and the best to carry those means into execution, without guile, injustice or oppression. But it is not remarkable, Mr. President, that the power of raising money which is thought dangerous in the proposed system, is, in fact, possessed by the present Congress, tho’ a single house without checks, and without responsibility. Let us now proceed, Sir, to the succeeding detail of the powers of the proposed government. That Congress shall have the power to borrow money on the credit of the United States, is not objected to; nor are the powers to regulate trade, to establish a general rule of naturalization, and to enact uniform laws on the subject of bankruptcies. The power to coin money and regulate its value, must be esteemed highly advantageous to the States, for hitherto its fluctuation has been productive of great confusion and fraudulent finesse. But when this power has established a certain medium throughout the United States, we shall know the extent and operation of our contracts, in what manner we are to pay or to be paid; no illicit practice will expose property to a sudden and capricious depreciation, and the traveller will not be embarrassed with the different estimates of the same coin in the different districts through which he passes. The punishment of forgery, and the establishment of post-offices and post roads, are subjects confessedly proper to be comprehended within the federal jurisdiction; and the power of securing to authors and inventors the exclusive right to their writings and discoveries, could only with effect be exercised by the Congress. For, Sir, the laws of the respective States could only operate within their respective boundaries, and therefore, a work which had cost the author his whole life to complete, when published in one State, however it might there be secured, could easily be carried into another State, in which a republication would be accompanied with neither penalty nor punishmenta circumstance manifestly injurious to the author in particular, and to the cause of science in general. The next powers enumerated are those for constituting tribunals inferior to the Supreme Court, for defining and punishing piracies and offences against the law of nations, and for declaring war, to which no objection has been made, and, I am persuaded, none can be made with reason and propriety. But, Sir, the power to raise and support armies has occasioned infinite opposition, and has been clothed in all the terrors which a jealous and heated imagination could conceive. Is it not necessary, however, Mr. President, that some power should exist capable of collecting and directing the national strength against foreign force, Indian depredations, or domestic insurrection? If that power is necessary, where could it otherwise reside, what other body is competent to carry it effectually into operation! For my part, Sir, I can perceive that the power is absolutely necessary to support the sovereignty and preserve the peace of the union, and, therefore, I will not idly argue against its use, from the possible abusean argument which, as it applies to every other power as well as that under our immediate consideration, would supersede all the attributes of government, and defeat every purpose of society. Having thus,21 Mr. President, recapitulated the powers delegated by the proposed constitution, it appears to me that they are necessary to the objects of the union, and therefore entitled to our confirmation. Nor am I, Sir, impressed with the opinion which has given so much pain to the worthy gentlemen in the opposition, that the powers are so vaguely expressed, so indefinite and extensive in their nature, that they may hereafter be stretched to every act of legislation, and construed to imply something beyond what is here specified. To evince that the powers enumerated in this article are all the powers given to the proposed Congress, we need only refer to the clause in the section which I have just discussed, that grants to that body a right of exclusive jurisdiction in any district of ten miles, which shall hereafter with the consent of the inhabitants become the seat of federal government. Does not this clearly prove, Sir, that their right of exclusive jurisdiction is restricted to that district, and with respect to the United States at large, their jurisdiction must be measured by the powers actually contained in the instrument before us? For no proposition can surely be more clear than this, that in every grant whatever is not mentioned must, from the nature of the thing, be considered as excluded. But, Sir, we are repeatedly told that however specious the enumeration may be, yet by the sixth article, a general authority is given to the acts of the proposed government, which renders its powers supreme and unlimited. Let us attend to this assertion and compare it with the article referred to. There it is said, Mr. President, 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; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Now, Sir, what does this prove? The meaning which appears to be plain and well expressed, is simply this, that Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws thus made in pursuance of the constitution, shall be binding upon the States. With respect to treaties, I believe there is no nation in the world in which they are not considered as the supreme law of the land, and consequently, obligatory upon all judges and magistrates. They are a common concern, and obedience to them ought to be a common duty. As, indeed, the interest of all the States must be uniformly in the contemplation of Congress, why should not that body be authorized to legislate for all? I earnestly hope, Sir, that the statutes of the federal government will last till they become the common law of the land, as excellent and as much valued as that which we have hitherto fondly denominated the birth-right of an American. Such, Mr. President, are the objects to which the powers of the proposed government extend. Nor is it entirely left to this evident principle, that nothing more is given than is expressed, to circumscribe the federal authority. For, in the ninth section of the first article, we find the powers so qualified that not a doubt can remain. In the first clause of that section, there is a provision made for an event which must gratify the feelings of every friend to humanity. The abolition of slavery is put within the reach of the federal government. And when we consider the situation and circumstances of the southern states, every man of candor will find more reason to rejoice that the power should be given at all, than to regret that its exercise should be postponed for twenty years. Though Congress will have power to declare war, it is here stipulated that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it;” and men will not be exposed to have their actions construed into crimes by subsequent and retrospective laws, for it is expressly declared that “no bill of attainder or ex post facto law shall be passed.” Though Congress will have the power to lay duties and taxes, yet, “no capitation or other direct tax shall be laid, unless in proportion to the census or actual enumeration of the states, nor can any tax or duty be laid on articles of exportation.” This wise regulation, Sir, has been successfully practiced by England and Ireland, while the commerce of Spain by a different conduct has been weakened and destroyed. The next restriction on the powers of Congress respects the appropriation of the public funds. “For no money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” What greater security could be required or given upon this important subject? First, the money must be appropriated by law, then drawn for according to that appropriation, and lastly, from time to time, an account of the receipts and expenditures must be submitted to the people, who will thus be enabled to judge of the conduct of their rulers, and, if they see cause to object to the use or the excess of the sums raised, they may express their wishes or disapprobation to the legislature in petitions or remonstrances, which, if just and reasonable, cannot fail to be effectual. Thus, Sir, if any power is given, you cannot in my opinion give lessfor less would be inadequate to the great objects of the government, and would neither enable Congress to pay the debts, or provide for the common defence of the Union. The last restriction mentioned prohibits Congress “from granting titles of nobility, and the officers of the proposed government from accepting, without the consent of Congress, any present, emolument, office or title of any kind whatever, from any king, prince, or foreign State.” The section which follows these qualifications of the powers of Congress, prescribes some necessary limits to the powers of the several States; among which, I find with particular satisfaction, it is declared that “no State shall emit bills of credit, or make anything but gold and silver coin a tender in payment of debts.” By this means, Sir, some security will be offered for the discharge of honest contracts, and an end put to the pernicious speculation upon paper emissionsa medium which has undermined the morals, and relaxed the industry of the people, and from which one-half of the controversies in our courts of justice has arisen. Upon the whole, Mr. President, I must repeat, that I perceive nothing in this system which can alarm or intimidate the sincerest friend to the liberties of his country. The powers given to the government are necessary to its existence, and to the political happiness of the peoplewhile the objections which are offered, arise from an evident perversion of its principles, and the presumption of a meaning which neither the framers of the system, nor the system itself, ever meant. True it is, Sir, that a form more pleasing, and more beneficial to the State of Pennsylvania, might be devised; but let it be remembered that this truth likewise applies to each of our sister States, whose separate interests have been proportionally sacrificed to the general welfare. And after all Mr. President, though a good system is certainly a blessing, yet the wealth, the prosperity, and the freedom of the people, must ultimately depend upon the administration of the best government. The wisdom, probity and patriotism of the rulers, will ever be the criterion of public prosperity; and hence it is, that despotism, if well administered, is the best form of government invented by human ingenuity. We have seen nations prosperous and happy under monarchies, aristocracies, and governments compounded of these, and to what can we ascribe their felicity, but the wise and prudent conduct of those who exercise the powers of government? For experience will demonstrate that the most perfect system may be so perverted as to produce poverty and misery, and the most despotic so executed as to disseminate affluence and happiness among the people. But, Sir, perfection is not to be expected in the business of this life, and it is so ordered by the wisdom of Providence, that as our stay in this world seldom exceeds three score and ten years, we may not become too reluctant to part with its enjoyments, but by reflecting upon the imperfections of the present, learn in time to prepare for the perfections of a future state. Let us then, Mr. President, be content to accept this system as the best which can be obtained. Every man may think, and many a man has said, that he could make it better; but, Sir, as I observed on a former occasion with respect to religion, this is nothing more than opinion, and every person being attached to his own, it will be difficult indeed to make any number of men correspond in the same objects of amendment. The excellent letter which accompanies the proposed system, will furnish a useful lesson upon this occasion. It deserves to be read with attention, and considered with candor. Allow me therefore, Sir, to close the trouble which I have given you in discussing the merits of the plan, with a perusal of this letterin the second paragraph of which the reason is assigned for deviating from a single body for the federal government.
SIR: We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most adviseable.
The friends of our country have long seen and desired that the power of making war, peace and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the general government of the Union; but the impropriety of delegating such extensive trust to one body of men is evident. Hence results the necessity of a different organization.
It is obviously impracticable in the federal government of these States, to secure all rights of independent sovereignty to each and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, extent, habits and particular interests. In all our deliberations on this subject we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each State in the convention to be less rigid on points of inferior magnitude than might have been otherwise expected, and thus the Constitution which we now present is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.
That it will meet the full and entire approbation of every State is not, perhaps, to be expected; but each will doubtless consider that, had her interests been alone consulted, the consequences might have been particularly disagreeable or injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish. With great respect, we have the honor to be, Sir,
Your Excellency’s most obedient humble servants.
GEORGE WASHINGTON, President.
By the unanimous Order of Convention.
I confess, Sir, that reading this letter and examining the work to which it refers, though there are some points that I might wish had been otherwise, yet upon the whole, I am struck with wonder and admiration that this Constitution should have been rendered so unexceptionable as it is, and that so many men, the representatives of States differing essentially in their views and interests, should have concurred in presenting it to their country.
The convention adjourned till Friday at half past nine o’clock, having first agreed to meet in the convention room tomorrow morning, in order to attend to the exercises performed at the German Lutheran church.
On Wednesday [28th],22 Mr. M’Kean closed a long speech on the legislative article of the new constitution with this striking observation: “Though a good system of government is certainly a blessing, yet it is on the administration of the best system that the freedom, wealth and happiness of the people depend. DESPOTISM, if wisely administered, is the best form of government invented by the ingenuity of man, and we find that the people under absolute and limited monarchies, under aristocracies and mixed governments, are as contented and as prosperous as we are, owing, undoubtedly, to the wisdom and virtue of their rulers. In short, the best government may be so conducted as to produce misery and disgrace, and the worst so administered as to ensure dignity and happiness to a nation.”
On the same day Mr. Smilie, in an elegant, ingenious and argumentative speech, traced some of the leading defects in the constitution, and endeavored to show that, if not in express terms, yet by inevitable consequence, it would terminate in a consolidation and not a confederation of the States. To this objection (which Mr. Wilson agreed if taken upon true grounds was a very serious and important one), the argument respecting the necessary relation between the State legislatures and the federal branches of government was repeated, the latter of which could not exist, it was said, if the former were annihilated. “But (added Mr. Smilie) let us review the history of Rome and we shall find, after the most absolute and horrid tyranny was established on the imperial throne, the ancient forms of the commonwealth were preserved; its senate still met and were flattered with a show of authority, but we know the power and dignity of that once illustrious body were dwindled to a name. So here, Mr. President, the shadow of State government may long be retained when the substance is totally lost and forgotten.”
“Liberty and happiness (says Mr. Wilson) have a powerful enemy on each hand; on the one hand tyranny, on the other licentiousness. To guard against the latter, it is necessary to give the proper powers to government; and to guard against the former, it is necessary that those powers should be properly distributed.”
“I agree (replies Mr. Smilie) that it is, or ought to be, the object of all governments to fix upon the intermediate point between tyranny and licentiousness; and I confess that the plan before us is perfectly armed to repel the latter; but I believe it has deviated too much on the left hand, and rather invites than guards against the approaches of tyranny.”
Thursday, November 29.
The members of the convention being assembled proceeded agreeably to their resolution of yesterday to the church in Race street, where they were entertained with the exercises of the young gentlemen belonging to the German Lutheran Academy.
Friday, November 30.
The Convention 23 met pursuant to adjournment.
Mr. Whitehill. I confess, Mr. President, that after the full exercise of his eloquence and ingenuity, the honorable delegate to the late convention has not removed those objections which I formerly submitted to your consideration, in hopes of striking, indeed, from his superior talents and information, a ray of wisdom to illuminate the darkness of our doubts, and to guide us in the pursuit of political truth and happiness. If the learned gentleman, however, with all his opportunities of investigating this particular system, and with all his general knowledge in the science of government, has not been able to convert or convince us, far be it from me to impute this failure to the defects of his elocution, or the languor of his disposition. It is no impeachment of those abilities which have been eminently distinguished in the abstruse disquisitions of law, that they should fail in the insidious task of supporting, on popular principles, a government which originates in mystery, and must terminate in despotism. Neither can the want of success, Sir, be ascribed to the want of zeal; for we have heard with our ears, and our eyes have seen, the indefatigable industry of the worthy member in advocating the cause which he has undertaken. But, Mr. President, the defect is in the system itself; there lies the evil which no argument can palliate, no sophistry can disguise. Permit me, therefore, Sir, again to call your attention to the principles which it contains, and for a moment to examine the ground upon which those principles are defended. I have said, and with increasing confidence I repeat, that the proposed constitution must eventually annihilate the independent sovereignty of the several states. In answer to this, the forms of election for supplying the offices of the federal head have been recapitulated; it has been thence inferred that the connection between the individual and the general governments is of so indissoluble a nature, that they must necessarily stand or fall together, and, therefore, it has been finally declared to be impossible, that the framers of this constitution could have a premeditated design to sow, in the body of their work, the seeds of its own destruction. But, Sir, I think it may be clearly proved that this system contains the seeds of self-preservation independent of all the forms referred toseeds which will vegetate and strengthen in proportion to the decay of state authority, and which will ultimately spring up and overshadow the thirteen commonwealths of America with a deadly shade. The honorable member from the city has, indeed, observed that every government should possess the means of its own preservation; and this constitution is possibly the result of that proposition. nor, Sir, the first article comprises the grants of powers so superlative in their nature, and so unlimited in their extent, that without the aid of any other branch of the system, a foundation rests upon this article alone, for the extension of the federal jurisdiction to the most extravagant degree of arbitrary sway. It will avail little to detect and deplore the encroachments of a government clothed in the plenitude of these powers; it will afford no consolation to reflect that we are not enslaved by the positive dereliction of our rights; but it will be well to remember at this day, Sir, that, in effect, we rob the people of their liberties, when we establish a power, whose usurpations they will not be able to counteract or restrict. It is not alone, however, the operative force of the powers expressly given to Congress that will accomplish their independence of the States, but we find an efficient auxiliary in the clause that authorizes that body “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 this government of the United States or in any department or office thereof.” Hence, Sir, if it should happen, as the honorable members from the city have presumed, that by the neglect or delinquency of the States, no place and manner, or an improper place and manner for conducting the elections should be appointed, will it not be said that the general government ought not for this reason to be destroyed? and will it not therefore be necessary for carrying the powers of this constitution into execution, that the Congress should provide for its elections in such manner as will prevent the federal business from being frustrated by the listless or refractory disposition of the States individually? This event is in a great measure provided for, indeed, by the plan itself; for “the Congress may (constitutionally) at any time by law make or alter such regulations (that is the times, places and manner of holding elections prescribed in each State by the legislature thereof) except as to the places of choosing senators.” If the power here given was necessary to the preservation of the proposed government, as the honorable members have contended, does it not, at the same time, furnish the means to act independent of the connection which has been so often represented as the great security for the continuance of the State sovereignties? Under the sanction of this clause, the senators may hold their seats as long as they live, and there is no authority to dispossess them. The duration of the house of representatives may likewise be protracted to any period, since the time and place of election will always be adapted to the objects of the Congress or its leading demagogues; and as that body will ultimately declare what shall constitute the qualifications of its members, all the boasted advantages of representation must terminate in idle form and expensive parade. If the voice of complaint should not then be silenced by the dread of punishment, easy it is, nevertheless, to anticipate the fate of petitions or remonstrances presented by the trembling hand of the oppressed to the irritated and ambitious oppressor. Solicitation will be answered by those statutes which are to be the supreme law of the land, and reproach will be overcome by the frown of insolent authority. This, Mr. President, is but a slight view of the calamities that will be produced by the exercise of those powers which the honorable members from the city have endeavored to persuade us it is necessary to grant to the new government in order to secure its own preservation and to accomplish the objects of the Union. But in considering, Sir, what was necessary to the safety and energy of the government, some attention ought surely to have been paid to the safety and freedom of the people. No satisfactory reason has yet been offered for the omission of a bill of rights; but on the contrary, the honorable members are defeated in the only pretext which they have been able to assign, that everything which is not given is excepted, for we have shown that there are two articles expressly reserved, the writ of habeas corpus and the trial by jury in criminal cases, and we have called upon them in vain to reconcile this reservation with the tenor of their favorite proposition. For if there was danger in the attempt to enumerate the liberties of the people, lest it should prove imperfect and destructive, how happens it that in the instances I have mentioned, that danger has been incurred? Have the people no other rights worth their attention, or is it to be inferred, agreeably to the maxim of our opponents, that every other right is abandoned? Surely, Sir, our language was competent to declare the sentiments of the people and to establish a bar against the intrusion of the general government in other respects as well as these; and when we find some privileges stipulated, the argument of danger is effectually destroyed; and the argument of difficulty which has been drawn from the attempt to enumerate every right, cannot now be urged against the enumeration of more rights than this instrument contains. In short, Mr. President, it is our duty to take care that the foundation of this system is so laid that the superstructure, which is to be reared by other hands, may not cast a gloom upon the temple of freedom, the recent purchase of our toil and treasure. When, therefore, I consider it as the means of annihilating the constitutions of the several States, and consequently the liberties of the people, I should be wanting to my constituents, to myself and to posterity, did I not exert every talent with which heaven has endowed me to counteract the measures that have been taken for its adoption. That it was the design of the late federal convention to absorb and abolish the individual sovereignty of the States, I seek no other evidence but this system; for as the honorable delegate to that body has recommended, I am also satisfied to judge of the tree by its fruit. When, therefore, I behold it thus systematically constructed for the accomplishment of that object, when I recollect the talents of those who framed it, I cannot hesitate to impute to there an intention corresponding with the principles and operation of their own work. Finally, Sir, that the dissolution of our State constitutions will produce the ruin of civil liberty is a proposition easy to be maintained, and which I am persuaded in the course of these debates will be incontrovertibly established in the mind of every member whose judgment is open to conviction, and whose vote has not been conclusively pledged for the ratification of this constitution before its merits were discussed.
Mr. Wilson. It is objected 24 that the number of members in the House of Representatives is too small. This is a subject something embarrassing, and the convention who framed the article felt the embarrassment. Take either side of the question, and you are necessarily led into difficulties. A large representation, Sir, draws along with it a great expense. We all know that expense is offered as an objection to this system of government, and certainly had the representation been greater, the clamor would have been on that side, and perhaps with some degree of justice. But the expense is not the sole objection; it is the opinion of some writers, that a deliberative body ought not to consist of more than one hundred members. I think, however, that there might be safety and propriety in going beyond that number; but certainly there is some number so large, that it would be improper to increase them beyond it. The British House of Commons consists of upwards of five hundred. The senate of Rome consisted, it is said, at some times of one thousand members. This last number is certainly too great.
The convention endeavored to steer a middle course, and when we consider the scale on which they formed their calculation, there are strong reasons why the representation should not have been larger. On the ratio that they have fixed, of one for every thirty thousand, and according to the generally received opinion of the increase of population throughout the United States, the present number of their inhabitants will be doubled in twenty-five years, and according to that progressive proportion, and the ratio of one member for thirty thousand inhabitants, the House of Representatives will, within a single century, consist of more than six hundred members. Permit me to add a further observation on the numbersthat a large number is not so necessary in this case as in the cases of state legislatures. In them there ought to be a representation sufficient to declare the situation of every county, town and district, and if of every individual, so much the better, because their legislative powers extend to the particular interest and convenience of each; but in the general government its objects are enumerated, and are not confined in their causes or operations to a county, or even to a single state. No one power is of such a nature as to require the minute knowledge of situations and circumstances necessary in state governments possessed of general legislative authority. These were the reasons, Sir, that I believe had influence on the convention to agree to the number of thirty thousand; and when the inconveniences and conveniences on both sides are compared, it would be difficult to say what would be a number more unexceptionable.
Friday, November 30th.
Mr. Hartley. 25 It has been uniformly admitted, Sir, by every man who has written or spoken upon the subject, that the existing confederation of the States is inadequate to the duties of a general government. The lives, the liberties and the property of the citizens are no longer protected and secured, so that necessity compels us to seek beneath another system, some safety for our most invaluable rights and possessions. It is then the opinion of many wise and good men, that the constitution presented by the late federal convention, will in a great measure afford the relief which is required by the wants and weakness of our present situation, but, on the other hand, it has been represented as an instrument to undermine the sovereignty of the States and destroy the liberties of the people. It is the peculiar duty of this convention to investigate the truth of those opinions, and to adopt or reject the proposed constitution, according to the result of that investigation. For my part I freely acknowledge, Mr. President, that impressed with a strong sense of the public calamities, I regard the system before us as the only prospect which promises to relieve the distresses of the people and to advance the national honor and interests of America. I shall therefore offer such arguments in opposition to the objections raised by the honorable delegates from Cumberland and Payette, as have served to establish my judgment, and will, I hope, communicate some information to the judgment of the worthy members who shall favor me with a candid attention. The first objection is, that the proposed system is not coupled with a bill of rights, and therefore, it is said, there is no security for the liberties of the people. This objection, Sir, has been ably refuted by the honorable members from the city, and will admit of little more animadversion than has already been bestowed upon it, in the course of their arguments. It is agreed, however, that the situation of a British subject, and that of an American citizen in the year 1776, were essentially different; but it does not appear to be accurately understood in what manner the people of England became enslaved before the reign of King John. Previously to the Norman conquest, that nation certainly enjoyed the greatest portion of civil liberty then known in the world. But when William, accompanied by a train of courtiers and dependents, seized upon the crown, the liberties of the vanquished were totally disregarded and forgotten, while titles, honors and estates, were distributed with a liberal hand among his needy and avaricious followers. The lives and fortunes of the ancient inhabitants became thus subject to the will of the usurper, and no stipulations were made to protect and secure them from the most wanton violations. Hence, Sir, arose the successful struggles in the reign of John, and to this source may be traced the subsequent exertions of the people for the recovery of their liberties, when Charles endeavored totally to destroy, and the Prince of Orange at the celebrated era of British revolution, was invited to support them, upon the principles declared in the bill of rights. Some authors, indeed, have argued that the liberties of the people were derived from the prince, but how they came into his hands is a mystery which has not been disclosed. Even on that principle, however, it has occasionally been found necessary to make laws for the security of the subjecta necessity that has produced the writ of habeas corpus, which affords an easy and immediate redress for the unjust imprisonment of the person, and the trial by jury, which is the fundamental security for every enjoyment that is valuable in the contemplation of a freeman. These advantages have not been obtained by the influence of a bill of rights, which after all we find is an instrument that derives its validity only from the sanction and ratification of the prince. How different then is our situation from the circumstances of the British nation?
As soon as the independence of America was declared, in the year 1776, from that instant all our natural rights were restored to us, and we were at liberty to adopt any form of government to which our views or our interest might incline us. This truth, expressly recognized by the act declaring our independence, naturally produced another maxim, that whatever portion of those natural rights we did not transfer to the government, was still reserved and retained by the people; for, if no power was delegated to the government, no right was resigned by the people; and if a part only of our natural rights was delegated, is it not absurd to assert that we have relinquished the whole? Where then is the necessity of a formal declaration, that those rights are still retained, of the resignation of which no evidence can possibly be produced? Some articles, indeed from their pre-eminence in the scale of political security, deserve to be particularly specified, and these have not been omitted in the system before us.
The definition of treason, the writ of habeas corpus, and the trial by jury in criminal cases, are here expressly provided for; and in going thus far, solid foundation has been laid.
The ingenuity of the gentlemen who are inimical to the proposed constitution may serve to detect an error, but can it furnish a remedy? They have told us that a bill of rights ought to have been annexed; but, while some are for this point, and others for that, is it not evidently impracticable to frame an instrument which will be satisfactory to the wishes of every man who thinks himself competent to propose and obviate objections? Sir, it is enough for me that the great cardinal points of a free government are here secured without the useless enumeration of privileges, under the popular appellation of a bill of rights. The second objection which I have been able to collect from the arguments of the honorable members in opposition is this, that annual elections are not recognized and established by this constitution. I confess, Mr. President, the business of elections is a very important object in the institution of a free government; but I am of opinion, that their frequency must always depend upon the circumstances of the country. In a small territory, an annual election is proper and convenient; but in a jurisdiction extending 1,500 miles, through various climates, even if practicable, it would be an idle and burthensome arrangement. If, for instance, a delegate to the Congress were obliged to travel 700 or 800 miles to Georgia and Carolina, he could scarcely have entered upon the duties of his appointment, before the year would be past, and his authority annulled. Let us look at the nations in Europe, and, by way of illustration, let us suppose particularly that it was necessary in Denmark to meet in Copenhagen, the seat of government, from districts at the distance of seven hundred miles, would it not be proper to extend the period of service in proportion to the time required for collecting the scattered members of the body politic? In England, indeed, a compact and cultivated country, through which the communication is never interrupted, an annual election might be productive of great advantages, and could be attended with few inconveniences; but, as I have already represented, the case must here be essentially different. If, then, this objection is answered, so likewise must be the objection which has been next offered, that the appropriation of public moneys for the maintenance of a military force, may be for a period of ten years, whereas in England it is only for one; since the same reasons which made it necessary to deviate from annual elections, must render it necessary to extend those appropriations.
The power granted to levy taxes is another subject for opposition; and at first view, indeed, it may naturally excite some astonishment. But, Mr. President, it is necessary that those who are authorized to contract debts upon the public faith should likewise be invested with the means for discharging those debts. We have fatally experienced that recommendations are incompetent to that object, for what part of our foreign obligations have they hitherto been able to discharge? Let us, however, suppose that by the operation of federal recommendation, it is possible to accomplish the payment of our existing debts; where is the faith so credulous that will advance us another shilling upon the same security? But on the other hand, establish a power which can discharge its engagement, and you insure the confidence and friendship of the world. The power of taxation is then a great and important trust; but we lodge it with our own representatives, and as long as we continue virtuous we shall be safe, for they will not dare to abuse it. We now come, Sir, to the objection which seems to spread the greatest alarm, and in support of which much labor and ingenuity have been displayed. That the rights now possessed by the States will in some degree be abridged by the adoption of the proposed system, has never been denied; but it is only in that degree which is necessary and proper to promote the great purposes of the Union. A portion of our natural rights are given up in order to constitute society; and as it is here, a portion of the rights belonging to the States individually is resigned in order to constitute an efficient confederation. But, Mr. President, I do not know any instance in ancient history exactly similar to the situation of this country. The allusion which was made by the honorable member from Fayette to the Roman annals, is incapable of a just application to the subject in discussion; for the senate at the period to which he has referred was not created by election, but appointed by the mandate of the prince. The power of life and death was exclusively possessed by the Emperor, and the senate had no authority but what he pleased to bestow. In modern history there is indeed one event which seems to be in point. When the Union was about to be formed between Scotland and England in the reign of Queen Anne, wise men of all descriptions opposed the transaction, and particularly it was the subject of clamor among the clergy of every denomination. Lord Peterborough compared it to Nebuchadnezzar’s image of iron and clay; and then, as it is now, the annihilation of the inferior power was warmly predicted by the wise men of the north. But, Sir, those fears and prognostications have been dissipated and disappointed by the event, and every liberal Scotchman will acknowledge he has gained by the bargain. Let it now be remarked that though Scotland sends only fifty-five members to the British Parliament, yet its judiciary and religious establishments being secured to them by the union, it has never been alleged that the superintending power has in any degree intruded upon those rights, or infringed the general tenor of the compact. Here then is an instance of a kingdom preserved even where the law is made and proceeds from a different and distant country. With respect to the German confederation, if anything can thence be drawn, it is an inference contrary to the doctrine contended on the part of the opposition. There, Sir, a number of deputies meet in general diet and make certain laws which are to prevade the Germanic body. But has this general head subverted the independence and liberties of its constituent members? No: for, on the reverse, we find the House of Austria, a single branch, has become superior to the whole, except the King of Prussia, who is likewise formidable, but it is in his power and influence over the general system. Upon the whole, Mr. President, I sincerely think that the opinions of the worthy gentlemen are mistaken, and that their fears are vain and extravagant; for it is necessary that something should be done, and this plan, waiving any compliment to its excellence, is at least an eligible one.
Doctor Rush. 26 I believe, Mr. President, that of all the treaties which have ever been made, William Penn’s was the only one, which was contracted without parchment; and I believe, likewise, it is the only one that has ever been faithfully adhered to. As it has happened with treaties, so, Sir, has it happened with bills of rights, for never yet has one been made which has not, at some period or other, been broken. The celebrated magna charta of England was broken over and over again, and these infractions gave birth to the petition of rights. If, indeed, the government of that country has not been violated for the last hundred years, as some writers have said, it is not owing to charters or declarations of rights, but to the balance which has been introduced and established in the legislative body. The constitution of Pennsylvania, Mr. President, is guarded by an oath, which every man employed in the administration of the public business is compelled to take; and yet, Sir, examine the proceedings of the council of censors, and you will find innumerable instances of the violation of that constitution, committed equally by its friends and enemies. In truth, then, there is no security but in a pure and adequate representation; the checks and all the other desiderata of government are nothing but political error without it, and with it, liberty can never be endangered. While the honorable convention, who framed this system, were employed in their work, there are many gentlemen who can bear testimony that my only anxiety was upon the subject of representation ; and when I beheld a legislature constituted of three branches, and in so excellent a manner, either directly or indirectly, elected by the people, and amenable to them, I confess, Sir, that here I cheerfully reposed all my hopes and confidence of safety. Civilians having taught us, Mr. President, that occupancy was the origin of property, I think it may likewise be considered as the origin of liberty; and as we enjoy all our natural rights from a pre-occupancy, antecedent to the social state, in entering into that state, whence shall they be said to be derived? Would it not be absurd to frame a formal declaration that our natural rights are acquired from ourselves? and would it not be a more ridiculous solecism to say, that they are the gift of those rulers whom we have created, and who are invested by us with every power they possess? Sir, I consider it as an honor to the late convention, that this system has not been disgraced with a bill of rights; though I mean not to blame or reflect upon those States which have encumbered their constitutions with that idle and superfluous instrument. One would imagine, however, from the arguments of the opposition, that this government was immediately to be administered by foreignersstrangers to our habits and opinions, and unconnected with our interests and prosperity. These apprehensions, Sir, might have been excused while we were contending with Great Britain; but at this time they are applicable to all governments, as well as that under consideration; and the arguments of the honorable member are, indeed, better calculated for an Indian council-fire, than the meridian of this refined and enlightened convention.
Mr. Yeates. The objections hitherto offered to this system, Mr. President, may, I think, be reduced to these general heads: first, that there is no bill of rights, and secondly, that the effect of the proposed government will be a consolidation and not a confederation of the States. Upon the first head it appears to me that great misapprehension has arisen, from considering the situation of Great Britain to be parallel to the situation of this country; whereas the difference is so essential, that a bill of rights which was there both useful and necessary, becomes here at once useless and unnecessary. In England a power (by what means it signifies little) was established paramount to that of the people, and the only way which they had to secure the remnant of their liberties, was, on every opportunity, to stipulate with that power for the uninterrupted enjoyment of certain enumerated privileges. But our case is widely different, and we find that upon the opinion of this difference, seven of the thirteen United States have not added a bill of rights to their respective constitutions. Nothing, indeed, seems more clear to my judgment than this, that in our circumstances, every power which is not expressly given is in fact reserved. But it is asked, as some rights are here expressly provided for, why should not more? In truth, however, the writ of habeas corpus, and the trial by jury in criminal cases, cannot be considered as a bill of rights, but merely as a reservation on the part of the people, and a restriction on the part of their rulers. And I agree with those gentlemen who conceive that a bill of rights, according to the ideas of the opposition, would be accompanied with considerable difficulty and danger; for it might be argued at a future day by the persons then in power, You undertook to enumerate the rights which you meant to reserve; the pretension which you now make is not comprised in that enumeration, and consequently our jurisdiction is not circumscribed. The second general head respects the consolidation of the States; but I think, Sir, candor will forbid us to impute that design to the late convention, when we review the principles and texture of their work. Does it not appear that the organization of the new government must originate with the States? Is not the whole system of federal representation dependent upon the individual governments? For we find that those persons who are qualified to vote for the most numerous branch of the State legislatures, are alone qualified to vote for delegates to the house of representatives: the senators are to be chosen immediately by the legislatures of the States; and those legislatures likewise are to prescribe the manner for the appointment of electors who are to elect the President. Thus, Sir, is the connection between the States in their separate and aggregate capacity preserved, and the existence of the Federal government made necessarily dependant upon the existence and actual operation of its constituent members. Lest anything, indeed, should be wanting to assure us of the intention of the framers of this constitution to preserve the individual sovereignty and independence of the States inviolate, we find it expressly declared by the 4th section of the 4th article, that “the United States shall guarantee to every State in this Union, a republican form of government “a constitutional security far superior to the fancied advantages of a bill of rights. It is urged, however, that all the security derived from this clause, and from the forms of representation, may be defeated by the exercise of the power which is vested in Congress to change the times, places, and manner of election. Sir, let it be remembered that this power can only operate in a case of necessity, after the factious or listless disposition of a particular State has rendered an interference essential to the salvation of the general government. But is it fair, is it liberal, that every presumption should impute to Congress an abuse of the powers with which they are entrusted? We might surely, on the ground of such extravagent apprehensions, proscribe the use of fire and waterfor fire may burn, and water may drown us. Is it, indeed, possible to define any power so accurately, that it shall reach the particular object for which it was given, and yet not be liable to perversion and abuse? If it is too much restrained it will certainly be incompetent; and I am free to declare the opinion, that it is much better under a limited government, to trust something to the discretion of the rulers, than to attempt so precise a definition of power as must defeat every salutary object which it is intended to produce. In what instance does it appear, after all, that the jurisdiction of the States will be abridged, except, indeed, in those respects from which the universal sense of mankind must forever exclude them? The general government will, and incontrovertibly should, be possessed of the power to superintend the general objects and interests of the country; the particular objects and interests of the States will still be subject to the power of the particular governmentsand is this not a natural and necessary distribution of authority? What single State, for instance, is equal to the regulation of commerce? Have we not seen a sister republic, by an obstinate refusal of the 5 per cent impost, involve the whole union in difficulties and disgrace? To that refusal, indeed, may be ascribed our present embarrassments, and the continuance of a heavy debt, which must, otherwise, have been long since discharged. But what are the particular restrictions which this system imposes upon the authority of the States? They are contained, Sir, in the tenth section of the first article ; and I appeal, cheerfully, to the candor of every man who hears me, whether they are not such as ought, for the sake of public honor and private honesty, to be imposed. “No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.” These, Sir, and some restraints in commercial affairs, are the restrictions on the several States; we have little information from the fatal experience of past years, if we cannot perceive their propriety, and rejoice in the anticipation of the beneficial consequences they must produce. What, Mr. President, has hitherto been the effect of tender laws, paper money, and the iniquitous speculations these excrescences of a weak government naturally engendered ? I wish not, Sir, to afflict you with a painful recollection upon this subject; but it will be well to remember how much we have suffered, that we may properly estimate the hand which rescues us from poverty and disgrace. If virtue is the foundation of a republican government, has it not been fatally sapped by these means? The morals of the people have been almost sunk into depravity; and the government of laws has been almost superseded by a licentious anarchy. The day of reformation and happiness, however, rapidly approaches, and this system will be, at length, the glorious instrument of our political salvation. nor, under the authority here given, our commerce will be rendered respectable among the nations of the world; the product of the impost will ease the weight of internal taxation; the land tax will be diminished; and the luxuries and conveniences of life bear a proportionate share in the public expenses. In short, Sir, I perceive nothing in this system to terrify, but everything to flatter the hopes of a friend to his country, and I sincerely hope it will be adopted.
On Friday 30th 27 the convention proceeded in their deliberations upon the first article of the proposed constitution, and Mr. Wynkoop moved, after some debate, that the second article should be taken into consideration. On this Mr. Smilie observed, that he hoped so precipitate a measure would not be adopted, for, in his opinion, they had not yet got over the first six words of the preamble. He then reduced the present subject of discussion to two general heads, viz. 1st. The necessity of a declaration of rights; and 2d. Whether the plan was a consolidation, or a confederation of the United States? After these points are ascertained, he observed, it would be proper to consider each section of the first article particularly, in order to state the objections to the powers delegated to the Congress for imposing internal taxation, raising a poll tax, and maintaining a standing army in time of peace. The convention adjourned at two o’clock.
Mr. M’Kean said on Friday, in the convention, that he wished the opponents of the proposed constitution would not merely find out its defects, but state the remedies. Since they consider a bill of rights so essential, why do they not show us one, that we may judge of its necessity? To this Mr. Smilie answered, he was happy to hear the idea suggested, for he had understood that the convention did not mean to admit either additions or amendments; but let them agree to do this, and he pledged himself to produce such a declaration of rights, and such other amendments, as would conciliate the opponents of the plan in its present state, who wished not to reject it altogether, but to make it as secure as possible, in favor of the civil liberties of the people.
Saturday, December 1st.
Doctor Rush 28 (on the subject of the new government tending to abridge the States of their respective sovereignty) observed in the convention, that this passion for separate sovereignty had destroyed the Grecian Union. This plurality of sovereignty is in politics what plurality of gods is in religionit is the idolatry, the heathenism of government. In marking the advantages which are secured to us by the new government, the Doctor principally enforced the following: The citizens under it will have an immediate voice in delegations to Congress: that an unoffending posterity will not (as is now the case on commission of treason) be punished for the sins of offending ancestors; that an eternal veto will be stamped on paper emissions; that religious tests would be abolished; that Commerce will hold up her declining head, under the influence of general, vigorous, uniform regulations; that a system of infinite mischief to this State would be counteracted; that the adopted certificates would devolve back to the continent. The Doctor concluded an animated speech by holding out the new constitution as pregnant with an increase of freedom, knowledge and religion.
On Saturday [Dec. 1st] 29 Mr. Findley delivered an eloquent and powerful speech, to prove that the proposed plan of government amounted to a consolidation, and not a confederation of the states. Mr. Wilson had before admitted that if this was a just objection, it would be strongly against the system; and it seems from the subsequent silence of all its advocates upon that subject (except Doctor Rush, who on Monday insinuated that he saw and rejoiced at the eventual annihilation of the state sovereignties) Mr. Findley has established his position. Previous to an investigation of the plan, that gentleman animadverted upon the argument of necessity, which had been so much insisted upon, and showed that we were in an eligible situation to attempt the improvement of the Federal Government, but not so desperately circumstanced as to be obliged to adopt any system, however destructive to the liberties of the people, and the sovereign rights of the states. He then argued that the proposed constitution established a general government and destroyed the individual governments, from the following evidence taken from the system itself: 1st. In the preamble, it is said, We the People, and not We the States, which therefore is a compact between individuals entering into society, and not between separate states enjoying independent power, and delegating a portion of that power for their common benefit. 2d. That in the legislature each member has a vote, whereas in a confederation, as we have hitherto practised it, and from the very nature of the thing, a state can only have one voice, and therefore all the delegates of any state can only give one vote. 3d. The powers given to the Federal body for imposing internal taxation will necessarily destroy the state sovereignties, for there cannot exist two independent sovereign taxing powers in the same community, and the strongest will of course annihilate the weaker. 4th. The power given to regulate and judge of elections is a proof of a consolidation, for there cannot be two powers employed at the same time in regulating the same elections, and if they were a confederated body, the individual states would judge of the elections, and the general Congress would judge of the credentials which proved the election of its members. 5th. The judiciary power, which is co-extensive with the legislative, is another evidence of a consolidation. 6th. The manner in which the wages of the members is paid, makes another proof ; and lastly, The oath of allegiance directed to be taken establishes it incontrovertibly; for would it not be absurd, that the members of the legislative and executive branches of a sovereign state should take a test of allegiance to another sovereign or independent body?
Mr. Wilson. 30 The secret is now disclosed, and it is discovered to be a dread that the boasted state sovereignties will, under this system, be disrobed of part of their power. Before I go into the examination of this point, let me ask one important question: Upon what principle is it contended that the sovereign power resides in the state governments? The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now if there can not, my position is, that the sovereignty resides in the people. They have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare. This constitution stands upon this broad principle. I know very well, Sir, that the people have hitherto been shut out of the federal government, but it is not meant that they should any longer be dispossessed of their rights. In order to recognize this leading principle, the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone. We have heard much about a consolidated government. I wish the honorable gentleman would condescend to give us a definition of what he meant by it. I think this the more necessary, because I apprehend that the term, in the numerous times it has been used, has not always been used in the same sense. It may be said, and I believe it has been said, that a consolidated government is such as will absorb and destroy the governments of the several States. If it is taken in this view, the plan before us is not a consolidated government, as I showed on a former day, and may, if necessary, show further on some future occasion. On the other hand, if it is meant that the general government will take from the state governments their power in some particulars, it is confessed and evident that this will be its operation and effect.
When the principle is once settled that the people are the source of authority, the consequence is that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle called State governments: they can also furnish another proportion to the government of the United States. Who will undertake to say as a state officer that the people may not give to the general government what powers and for what purposes they please? how comes it, Sir, that these State governments dictate to their superiors?to the majesty of the people? When I say the majesty of the people, I mean the thing, and not a mere compliment to them. The honorable gentleman went a step further and said that the State governments were kept out of this government altogether. The truth is, and it is a leading principle in this system, that not the States only but the people also shall be here represented. And if this is a crime, I confess the general government is chargeable with it; but I have no idea that a safe system of power in the government, sufficient to manage the general interest of the United States, could be drawn from any other source or rested in any other authority than that of the people at large, and I consider this authority as the rock on which this structure will stand. If this principle is unfounded, the system must fall. If honorable gentlemen, before they undertake to oppose this principle, will show that the people have parted with their power to the State governments, then I confess I cannot support this constitution. It is asked, can there be two taxing powers? Will the people submit to two taxing powers? I think they will, when the taxes are required for the public welfare, by persons appointed immediately by their fellow citizens.
But I believe this doctrine is a very disagreeable one to some of the State governments. All the objections that will furnish an increase of revenue are eagerly seized by them; perhaps this will lead to the reason why a State government, when she was obliged to pay only about an eighth part of the loan-office certificates, should voluntarily undertake the payment of about one-third part of them. This power of taxation will be regulated in the general government upon equitable principles. No State can have more than her just proportion to dischargeno longer will government be obliged to assign her funds for the payment of debts she does not owe. Another objection has been taken that the judicial powers are co-extensive with the objects of the national government. So far as I can understand the idea of magistracy in every government, this seems to be a proper arrangement; the judicial department is considered as a part of the executive authority of government. Now, I have no idea that the authority should be restrained so as not to be able to perform its functions with full effect. I would not have the legislature sit to make laws which cannot be executed. It is not meant here that the laws shall be a dead letter; it is meant that they shall be carefully and duly considered before they are enacted; and that then they shall be honestly and faithfully executed. This observation naturally leads to a more particular consideration of the government before us. In order, Sir, to give permanency, stability and security to any government, I conceive it of essential importance that its legislature should be restrained; that there should not only be what we call a passive, but an active power over it; for of all kinds of despotism, this is the most dreadful and the most difficult to be corrected. With how much contempt have we seen the authority of the people treated by the legislature of this Stateand how often have we seen it making laws in one session that have been repealed the next, either on account of the fluctuation of party or their own impropriety!
This could not have been the case in a compound legislature; it is therefore proper to have efficient restraints upon the legislative body. These restraints arise from different sources: I will mention some of them. In this constitution they will be produced in a very considerable degree by a division of the power in the legislative body itself. Under this system they may arise likewise from the interference of those officers, who will be introduced into the executive and judicial departments. They may spring also from another source, the election by the people, and finally, under this constitution, they may proceed from the great and last resortfrom the PEOPLE themselves. I say, under this constitution, the legislature may be restrained and kept within its prescribed bounds by the interposition of the judicial department. This I hope, Sir, to explain clearly and satisfactorily. I had occasion on a former day to state that the power of the constitution was paramount to the power of the legislature acting under that constitution. For it is possible that the legislature, when acting in that capacity, may transgress the bounds assigned to it, and an act may pass in the usual mode notwithstanding that transgression; but when it comes to be discussed before the judges, when they consider its principles, and find it to be incompatible with the superior powers of the constitution, it is their duty to pronounce it void; and judges independent, and not obliged to look to every session for a continuance of their salaries, will behave with intrepidity and refuse to the act the sanction of judicial authority. In the same manner the President of the United States could shield himself and refuse to carry into effect an act that violates the constitution.
In order to secure the President from any dependence upon the legislature as to his salary, it is provided that he shall, at stated times, receive for his services a compensation that shall neither be increased nor diminished during the period for which he shall have been elected, and that he shall not receive within that period any other emolument from the United States or any of them.
To secure to the judges this independence, it is ordered that they shall receive for their services a compensation which shall not be diminished during their continuance in office. The Congress may be restrained by the election of its constituent parts. If a legislature shall make a law contrary to the constitution or oppressive to the people, they have it in their power, every second year in one branch, and every sixth year in the other, to displace the men who act thus inconsistent with their duty; and if this is not sufficient, they have still a further power; they may assume into their own hands the alteration of the constitution itselfthey may revoke the lease, when the conditions are broken by the tenant. But the most useful restraint upon the legislature, because it operates constantly, arises from the division of its power among two branches, and from the qualified negative of the president upon both. As this government is formed, there are two sources from which the representation is drawn, though they both ultimately flow from the people. States now exist and others will come into existence; it was thought proper that they should be represented in the general government. But gentlemen will please to remember, this constitution was not framed merely for the States; it was framed for the PEOPLE also; and the popular branch of the Congress will be the objects of their immediate choice.
The two branches will serve as checks upon each other; they have the same legislative authorities, except in one instance. Money bills must originate in the house of representatives. The senate can pass no law without the concurrence of the house of representatives; nor can the house of representatives without the concurrence of the senate. I believe, Sir, that the observation which I am now going to make, will apply to mankind in every situation; they will act with more caution, and perhaps more integrity, if their proceedings are to be under the inspection and control of another, than when they are not. From this principle, the proceedings of Congress will be conducted with a degree of circumspection not common in single bodies, where nothing more is necessary to be done, than to carry the business through amongst themselves, whether it be right or wrong. In compound legislatures, every object must be submitted to a distinct body, not influenced by the arguments, or warped by the prejudices of the other. And, I believe, that the persons who will form the Congress, will be cautious in running the risk, with a bare majority, of having the negative of the president put on their proceedings. As there will be more circumspection in forming the laws, so there will be more stability in the laws when made. Indeed one is the consequence of the other; for what has been well considered, and founded in good sense, will, in practice, be useful and salutary, and of consequence will not be liable to be soon repealed. Though two bodies may not possess more wisdom or patriotism than what may be found in a single body, yet they will necessarily introduce a greater degree of precision. An undigested and inaccurate code of laws, is one of the most dangerous things that can be introduced into any government. The force of this observation is well known by every gentleman that has attended to the laws of this State. This, Sir, is a very important advantage, that will arise from this division of the legislative authority.
I will proceed now to take some notice of a still further restraint upon the legislature: I mean the qualified negative of the president. I think this will be attended with very important advantages, for the security and happiness of the people of the United States. The president, Sir, will not be a stranger to our country, to our laws, or to our wishes. He will, under this constitution, be placed in office as the president of the whole union, and will be chosen in such a manner that he may be justly styled THE MAN OF THE PEOPLE; being elected by the different parts of the United States, he will consider himself as not particularly interested for any one of them, but will watch over the whole with paternal care and affection. This will be the natural conduct to recommend himself to those who placed him in that high chair, and I consider it as a very important advantage, that such a man must have every law presented to him before it can become binding upon the United States. He will have before him the fullest information of our situation, he will avail himself not only of records and official communications, foreign and domestic, but he will have also the advice of the executive officers in the different departments of the general government.
If in consequence of this information and advice, he exercise the authority given to him, the effect will not be lost he returns his objections, together with the bill, and unless two-thirds of both branches of the legislature are now found to approve it, it does not become a law. But even if his objections do not prevent its passing into a law, they will not be useless; they will be kept together with the law, and, in the archives of congress, will be valuable and practical materials, to form the minds of posterity for legislationif it is found that the law operates inconveniently, or oppressively, the people may discover in the president’s objections the source of that inconvenience or oppression. Further, Sir, when objections shall have been made, it is provided, in order to secure the greatest degree of caution and responsibility, that the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill, shall be entered in the journal of each house respectively. Thus much I have thought proper to say, with regard to the distribution of the legislative authority, and the restraints under which it will be exercised.
The gentleman in opposition strongly insists, that the general clause at the end of the eighth section, gives to congress a power of legislating generally; but I cannot conceive by what means he will render the word susceptible of that expansion. Can the words, “the congress shall have power to make all laws which shall be necessary and proper to carry into execution the foregoing powers,” be capable of giving them general legislative power? I hope that it is not meant to give to congress merely an illusive show of authority, to deceive themselves or constituents any longer. On the contrary, I trust it is meant, that they shall have the power of carrying into effect the laws which they shall make under the powers vested in them by this constitution. In answer to the gentleman from Fayette (Mr. Smilie,) on the subject of the press, I beg leave to make an observation: it is very true, Sir, that this constitution says nothing with regard to that subject, nor was it necessary, because it will be found that there is given to the general government no power whatsoever concerning it; and no law in pursuance of the constitution, can possibly be enacted, to destroy that liberty.
I heard the honorable gentleman make this general assertion, that the Congress was certainly vested with power to make such a law, but I would be glad to know by what part of this constitution such a power is given? Until that is done, I shall not enter into a minute investigation of the matter, but shall at present satisfy myself with giving an answer to a question that has been put. It has been asked, if a law should be made to punish libels, and the judges should proceed under that law, what chance would the printer have of an acquittal? And it has been said he woulddrop into a den of devouring monsters.
I presume it was not in the view of the honorable gentleman to say there is no such thing as a libel, or that the writers of such ought not to be punished. The idea of the liberty of the press, is not carried so far as this in any countrywhat is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character and property of the individual.
With regard to attacks upon the public, the mode of proceeding is by a prosecution. Now if a libel is written, it must be within some one of the United States, or the district of congress. With regard to that district, I hope it will take care to preserve this as well as the other rights of freemen ; for whatever district congress may choose, the cession of it cannot be completed without the consent of its inhabitants. Now, Sir, if this libel is to be tried, it must be tried where the offence was committed; for under this constitution, as declared in the second section of the third article, the trial must be held in the State; therefore on this occasion it must be tried where it was published, if the indictment is for publishing; and it must be tried likewise by a jury of that State. Now, I would ask, is the person prosecuted in a worse situation under the general government, even if it had the power to make laws on this subject, than he is at present under the State government? It is true there is no particular regulation made, to have the jury come from the body of the county in which the offence was committed; but there are some States in which this mode of collecting juries is contrary to their established custom, and gentlemen ought to consider that this constitution was not meant merely for Pennsylvania. In some States the juries are not taken from a single county. In Virginia, the sheriff, I believe, is not confined even to the inhabitants of the State, but is at liberty to take any man he pleases, and put him on the jury. In Maryland I think a set of jurors serve for the whole Western Shore, and another for the Eastern Shore.
I beg to make one remark on what one gentleman has said, with respect to amendments being proposed to the constitution. To whom are the convention to make report of such amendments? He tells you, to the present congress. I do not wish to report to that body, the representatives only of the State governments; they may not be disposed to admit the people into a participation of their power. It has also been supposed, that a wonderful unanimity subsists among those who are enemies to the proposed system. On this point I also differ from the gentleman who made the observation. I have taken every pains in my power, and read every publication I could meet with, in order to gain information; and as far as I have been able to judge, the opposition is inconsiderable and inconsistent. Instead of agreeing in their objections, those who make them bring forward such as are diametrically opposite. On one hand, it is said that the representation in congress is too small; on the other, it is said to be too numerous. Some think the authority of the senate too great; some that of the house of representatives; and some that of both. Others draw their fears from the powers of the president; and like the iron race of Cadmus, these opponents rise only to destroy each other.
Monday, December 3.
On Monday [Dec. 3d] 31 it was urged by Mr. Findley, that Congress, under the new system, would have it in their power to lay an impost upon emigrants. Doctor Rush said he thought there was no reason to object to its being laid on the importation of indented servants, and Mr. Wilson said that the emigration of freemen was an object of commerce.
Doctor Rush having frequently alluded with disapprobation to the funding system, in a late debate, Mr. Findley observed that the Doctor was one of the committee of public creditors who had conferred with a committee of the General Assembly upon this measure, and was at that time active in promoting it. The Doctor, for fear any unfavorable impression should be made by that assertion, observed that he did not think the system would have extended so far.
Mr. Wilson said that the manner in which the opposition treated the proposed constitution, taking it by piece-meal, without considering the relative connection and dependence of its parts, reminded him of an anecdote which occurred when it was the practice in churches to detail a single line of Sternhold and Hopkins’s psalms, and then set the verse to music. A sailor entered the church, when the clerk gave out the following line:
The Lord will come, and he will not
The sailor stared, but when he heard the next line,
Hold peace, but speak aloud,
he instantly left the congregation, convinced that it was an assembly of lunatics.
Mr. Wilson. 32Much fault has been found with the mode of expression used in the first clause of the ninth section of the first article. I believe I can assign a reason why that mode of expression was used, and why the term slave was not directly admitted in this constitution:and as to the manner of laying taxes, this is not the first time that the subject has come into the view of the United States, and of the legislatures of the several States. The gentleman (Mr. Findley) will recollect, that in the present Congress, the quota of the federal debt and general expenses was to be in proportion to the value of LAND and other enumerated property within the States. After trying this for a number of years, it was found on all hands to be a mode that could not be carried into execution. Congress were satisfied of this, and in the year 1783 recommended, in conformity with the powers they possessed under the articles of confederation, that the quota should be according to the number of free people, including those bound to servitude, and excluding Indians not taxed. These were the very expressions used in 1783, and the fate of this recommendation was similar to all their other resolutions. It was not carried into effect, but it was adopted by no fewer than eleven out of thirteen States; and it cannot but be a matter of surprise to hear gentlemen who agreed to this very mode of expression at that time, come forward and state it as an objection on the present occasion. It was natural, Sir, for the late convention to adopt the mode after it had been agreed to by eleven States, and to use the expression which they found had been received as unexceptionable before. With respect to the clause restricting Congress from prohibiting the migration or importation of such persons as any of the States now existing shall think proper to admit, prior to the year 1808, the honorable gentleman says that this clause is not only dark, but intended to grant to Congress, for that time, the power to admit the importation of slaves. No such thing was intended; but I will tell you what was done, and it gives me high pleasure that so much was done. Under the present confederation, the States may admit the importation of slaves as long as they please; but by this article, after the year 1808, the Congress will have power to prohibit such importation, notwithstanding the disposition of any State to the contrary. I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind, gradual change which was pursued in Pennsylvania. It is with much satisfaction I view this power in the general government, whereby they may lay an interdiction on this reproachful trade. But an immediate advantage is also obtained, for a tax or duty may be imposed on such importation not exceeding ten dollars for each person; and this, Sir, operates as a partial prohibition. It was all that could be obtained. I am sorry it was no more; but from this I think there is reason to hope that yet a few years, and it will be prohibited altogether. And in the meantime, the new States which are to be formed will be under the control of Congress in this particular, and slaves will never be introduced amongst them. The gentleman says that it is unfortunate in another point of view: it means to prohibit the introduction of white people from Europe, as this tax may deter them from coming amongst us. A little impartiality and attention will discover the care that the convention took in selecting their language. The words are, the migration or IMPORTATION of such persons, etc., shall not be prohibited by Congress prior to the year 1808, but a tax or duty may be imposed on such IMPORTATION. It is observable here that the term migration is dropped when a tax or duty is mentioned, so that Congress have power to impose the tax only on those imported.
Tuesday December 4, 1787.
Mr. Wilson. 33 I shall take this opportunity of giving an answer to the objections already urged against the constitution; I shall then point out some of those qualities, that entitle it to the attention and approbation of this convention; and after having done this, I shall take a fit opportunity of stating the consequences which I apprehend will result from rejecting it, and those which will probably result from its adoption. I have given the utmost attention to the debates and the objections that from time to time have been made by the three gentlemen who speak in opposition. I have reduced them to some order, perhaps not better than that in which they were introduced. I will state them; they will be in the recollection of the house, and I will endeavor to give an answer to themin that answer, I will interweave some remarks that may tend to elucidate the subject.
A good deal has already been said, concerning a bill of rights; I have stated, according to the best of my recollection, all that passed in convention relating to that business. Since that time, I have spoken with a gentleman, who has not only his memory, but full notes, that he had taken in that body; and he assures me, that upon this subject no direct motion was ever made at all; and certainly, before we heard this so violently supported out of doors, some pains ought to have been taken to have tried its fate within; but the truth is, a bill of rights would, as I have mentioned already, have been not only unnecessary, but improper. In some governments it may come within the gentleman’s idea, when he says it can do no harm; but even in these governments, you find bills of rights do not uniformly obtain; and do those States complain who have them not? Is it a maxim in forming governments, that not only all the powers which are given, but also that all those which are reserved, should be enumerated? I apprehend that the powers given and reserved, form the whole rights of the people, as men and as citizens. I consider, that there are very few who understand the whole of these rights. All the political writers, from Grotius and Puffendorf, down to Vattel, have treated on this subject; but in no one of those books, nor in the aggregate of them all, can you find a complete enumeration of rights appertaining to the people as men and as citizens.
There are two kinds of government; that where general power is intended to be given to the legislature, and that where the powers are particularly enumerated. In the last case, the implied result is, that nothing more is intended to be given than what is so enumerated, unless it results from the nature of the government itself. On the other hand, when general legislative powers are given, then the people part with their authority, and on the gentleman’s principle of government, retain nothing. But in a government like the proposed one, there can be no necessity for a bill of rights. For, on my principle, the people never part with their power. Enumerate all the rights of men! I am sure, Sir, that no gentleman in the late convention would have attempted such a thing. I believe the honorable speakers in opposition on this floor were members of the assembly which appointed delegates to that convention; if it had been thought proper to have sent them into that body, how luminous would the dark conclave have been! So the gentleman has been pleased to denominate that body. Aristocrats as they were, they pretended not to define the rights of those who sent them there. We are asked repeatedly, what harm could the addition of a bill of rights do? If it can do no good, I think that a sufficient reason to refuse having anything to do with it. But to whom are we to report this bill of rights, if we should adopt it? Have we authority from those who sent us here to make one?
It is true we may propose, as well as any other private persons; but how shall we know the sentiments of the citizens of this State and of the other States ? are we certain that any one of them will agree with our definitions and enumerations?
In the second place, we are told, that there is no check upon the government but the people; it is fortunate, Sir, if their superintending authority is allowed as a check: but I apprehend that in the very construction of this government, there are numerous checks. Besides those expressly enumerated, the two branches of the legislature are mutual checks upon each other. But this subject will be more properly discussed, when we come to consider the form of government itself; and then I mean to show the reason, why the right of habeas corpus was secured by a particular declaration in its favor.
In the third place we are told, that there is no security for the rights of conscience. I ask the honorable gentleman, what part of this system puts it in the power of congress to attack those rights ? When there is no power to attack, it is idle to prepare the means of defence.
After having mentioned, in a cursory manner, the foregoing objections, we now arive at the leading ones against the proposed system.
The very manner of introducing this constitution, by the recognition of the authority of the people, is said to change the principle of the present confederation, and to introduce a consolidating and absorbing government!
In this confederated republic, the sovereignty of the States, it is said, is not preserved. We are told that there cannot be two sovereign powers, and that a subordinate sovereignty is no sovereignty.
It will be worth while, Mr. President, to consider this objection at large. When I had the honor of speaking formerly on this subject, I stated, in as concise a manner as possible, the leading ideas that occurred to me, to ascertain where the supreme and sovereign power resides. It has not been, nor, I presume, will it be denied, that somewhere there is, and of necessity must be, a supreme, absolute and uncontrollable authority. This, I believe, may justly be termed the sovereign power; for from that gentleman’s (Mr. Findley) account of the matter, it cannot be sovereign, unless it is supreme; for, says he, a subordinate sovereignty is no sovereignty at all. I had the honor of observing, that if the question was asked, where the supreme power resided, different answers would be given by different writers. I mentioned that Blackstone will tell you, that in Britain it is lodged in the British parliament; and I believe there is no writer on this subject on the other side of the Atlantic, but supposes it to be vested in that body. I stated further, that if the question was asked, some politician, who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, would answer, that it was vested in the State constitutions. This opinion approaches near the truth, but does not reach it; for the truth is, that the supreme, absolute and uncontrollable authority, remains with the people. I mentioned also, that the practical recognition of this truth was reserved for the honor of this country. I recollect no constitution founded on this principle: but we have witnessed the improvement, and enjoy the happiness, of seeing it carried into practice. The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth.
When I made the observation, that some politicians would say the supreme power was lodged in our State constitutions, I did not suspect that the honorable gentleman from Westmoreland (Mr. Findley) was included in that description; but I find myself disappointed; for I imagined his opposition would arise from another consideration. His position is, that the supreme power resides in the States, as governments; and mine is, that it resides in the PEOPLE, as the fountain of government; that the people have notthat the people mean notand that the people ought not, to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject.
I consider the people of the United States as forming one great community, and I consider the people of the different States as forming communities again on a lesser scale. From this great division of the people into distinct communities it will be found necessary that different proportions of legislative powers should be given to the governments, according to the nature, number and magnitude of their objects.
Unless the people are considered in these two views, we shall never be able to understand the principle on which this system was constructed. I view the States as made for the people as well as by them, and not the people as made for the States. The people, therefore, have a right, whilst enjoying the undeniable powers of society, to form either a general government, or state governments, in what manner they please; or to accommodate them to one another, and by this means preserve them all. This, I say, is the inherent and unalienable right of the people, and as an illustration of it, I beg to read a few words from the Declaration of Independence, made by the representatives of the United States, and recognized by the whole Union.
“We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just towers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the RIGHT of the people to alter or to abolish it, and institute a new government, laying its foundation on such principles, and organizing its powers in such forms, as to them shall seem most likely to effect their safety and happiness.”
This is the broad basis on which our independence was placed. On the same certain and solid foundation this system is erected.
State sovereignty, as it is called, is far from being able to support its weight. Nothing less than the authority of the people could either support it or give it efficacy. I cannot pass over this subject without noticing the different conduct pursued by the late federal convention, and that observed by the convention which framed the constitution of Pennsylvania. On that occasion you find an attempt made to deprive the people of this right, so lately and so expressly asserted in the Declaration of Independence. We are told in the preamble to the Declaration of Rights, and frame of government, that “we do, by virtue of the authority vested in us, ordain, declare, and establish, the following Declaration of Rights and frame of government to be the constitution of this commonwealth, and to remain in force therein UNALTERED, except in such articles as shall hereafter on experience be found to require improvement, and which shall, by the same authority of the people, fairly delegated as this frame of government directs“An honorable gentleman (Mr. Chambers) was well warranted in saying that all that could be done was done to cut off the people from the right of amending; for if it be amended by any other mode than that which it directs, then any number more than one-third may control any number less than two-thirds.
But I return to my general reasoning. My position is, Sir, that in this country the supreme, absolute, and uncontrollable power resides in the people at large; that they have vested certain proportions of this power in the State governments, but that the fee simple continues, resides and remains with the body of the people. Under the practical influence of this great truth we are now sitting and deliberating, and under its operation, we can sit as calmly, and deliberate as coolly in order to change a constitution, as a legislature can sit and deliberate tender the power of a constitution in order to alter or amend a law. It is true, the exercise of this power will not probably be so frequent, nor resorted to on so many occasions, in one case as in the other; but the recognition of the principle cannot fail to establish it more firmly. Because this recognition is made in the proposed constitution, an exception is taken to the whole of it, for we are told it is a violation of the present confederationa CONFEDERATION of SOVEREIGN STATES. I shall not enter into an investigation of the present confederation, but shall just remark, that its principle is not the principle of free governments. The PEOPLE of the United States are not as such represented in the present Congress; and considered even as the component parts of the several States, they are not represented in proportion to their numbers and importance.
In this place I cannot help remarking on the general inconsistency which appears between one part of the gentleman’s objections and another. Upon the principle we have now mentioned, the honorable gentleman contended, that the powers ought to flow from the States; and that all the late convention had to do, was to give additional powers to Congress. What is the present form of Congress? A single body, with some legislative, but little executive, and no effective judicial power. What are these additional powers that are to be given? In some cases legislative are wanting, in other judicial, and in others executive; these, it is said, ought to be allotted to the general government; but the impropriety of delegating such extensive trust to one body of men is evident; yet in the same day, and perhaps the same hour, we are told, by honorable gentlemen, that these three branches of government are not kept sufficiently distinct in this constitution; we are told also that the senate, possessing some executive power, as well as legislative, is such a monster that it will swallow up and absorb every other body in the general government, after having destroyed those of the particular States.
Is this reasoning with consistency? Is the senate under the proposed constitution so tremendous a body, when checked in their legislative capacity by the house of representatives, and in their executive authority by the president of the United States? Can this body be so tremendous as the present congress, a single body of men possessed of legislative, executive and judicial powers? To what purpose was Montesquieu read to show that this was a complete tyranny? The application would have been more properly made by the advocates of the proposed constitution, against the patrons of the present confederation.
It is mentioned that this federal government will annihilate and absorb all the State governments. I wish to save as much as possible the time of the house: I shall not, therefore, recapitulate what I had the honor of saying last week on this subject; I hope it was then shown, that instead of being abolished (as insinuated) from the very nature of things, and from the organization of the system itself, the State governments must exist, or the general government must fall amidst their ruins; indeed, so far as to the forms, it is admitted they may remain, but the gentlemen seem to think their power will be gone.
I shall have occasion to take notice of this power hereafter, and, I believe, if it was necessary, it could be shown that the State governments, as States, will enjoy as much power, and more dignity, happiness and security, than they have hitherto done. I admit, Sir, that some of the powers will be taken from them, by the system before you; but it is, I believe, allowed on all hands, at least it is not among us a disputed point, that the late convention was appointed with a particular view to give more power to the government of the union: it is also acknowledged, that the intention was to obtain the advantage of an efficient government over the United States; now, if power is to be given to that government, I apprehend it must be taken from some place. If the State governments are to retain all the powers they held before, then, of consequence, every new power that is given to Congress must be taken from the people at large. Is this the gentleman’s intention? I believe a strict examination of this subject will justify me in asserting that the States, as governments, have assumed too much power to themselves, while they left too little to the people. Let not this be called cajoling the peoplethe elegant expression used by the honorable gentleman from Westmoreland (Mr. Findley)it is hard to avoid censure on one side or the other. At some time it has been said, that I have not been at the pains to conceal my contempt of the people; but when it suits a purpose better, it is asserted that I cajole them. I do neither one nor the other. The voice of approbation, Sir, when I think that approbation well earned, I confess is grateful to my ears; but I would disdain it, if it is to be purchased by a sacrifice of my duty, or the dictates of my conscience. No, Sir, I go practically into this system; I have gone into it practically when the doors were shut, when it could not be alleged that I cajoled the people; and I now endeavor toshow that the true and only safe principle for a free people, is a practical recognition of their original and supreme authority.
I say, Sir, that it was the design of this system, to take some power from the State government, and to place it in the general government. It was also the design, that the people should be admitted to the exercise of some powers which they did not exercise under the present confederation. It was thought proper that the citizens, as well as the States, should be represented; how far the representation in the senate is a representation of States, we shall see by and by, when we come to consider that branch of the federal government.
This system, it is said, “unhinges and eradicates the State governments, and was systematically intended so to do;” to establish the intention, an argument is drawn from Art. 1st sect. 4th, on the subject of elections. I have already had occasion to remark upon this, and shall therefore pass on to the next objectionthat the last clause of the 8th sect. of the 1st article, gives the power of self-preservation to the general government, independent of the States. For in case of their abolition, it will be alleged in behalf of the general government, that self-preservation is the first law, and necessary to the exercise of all other powers.
Now let us see what this objection amounts to. Who are to have this self-preserving power? The Congress. Who are Congress? It is a body that will consist of a senate and a house of representatives. Who compose this senate? Those who are elected by the legislatures of the different States. Who are the electors of the house of representatives? Those who are qualified to vote for the most numerous branch of the legislature in the separate States. Suppose the State legislatures annihilated, where is the criterion to ascertain the qualification of electors? and unless this be ascertained, they cannot be admitted to vote; if a state legislature is not elected, there can be no senate, because the senators are to be chosen by the legislatures only.
This is a plain and simple deduction from the constitution, and yet the objection is stated as conclusive upon an argument expressly drawn from the last clause of this section.
It is repeated, with confidence, “that this is not a federal government, but a complete one, with legislative, executive and judicial powers: it is a consolidating government.” I have already mentioned the misuse of the term; I wish the gentleman would indulge us with his definition of the word. If, when he says it is a consolidation, he means so far as relates to the general objects of the unionso far it was intended to be a consolidation, and on such a consolidation, perhaps, our very existence, as a nation, depends. If, on the other hand (as something which has been said seems to indicate) he (Mr. Findley) means that it will absorb the governments of the individual States, so far is this position from being admitted, that it is unanswerably controverted. The existence of the State government, is one of the most prominent features of this system. With regard to those purposes which are allowed to be for the general welfare of the union, I think it no objection to this plan, that we are told it is a complete government. I think it no objection, that it is alleged the government will possess legislative, executive and judicial powers. Should it have only legislative authority? We have had examples enough of such a government, to deter us from continuing it. Shall Congress any longer continue to make requisitions from the several States, to be treated sometimes with silent, and sometimes with declared contempt? For what purpose give the power to make laws, unless they are to be executed? and if they are to be executed, the executive and judicial powers will necessarily be engaged in the business.
Do we wish a return of those insurrections and tumults to which a sister State was lately exposed? or a government of such insufficiency as the present is found to be ? Let me, Sir, mention one circumstance in the recollection of every honorable gentleman who hears me. To the determination of Congress are submitted all disputes between States, concerning boundary, jurisdiction, or right of soil. In consequence of this power, after much altercation, expense of time, and considerable expense of money, this State was successful enough to obtain a decree in her favor, in a difference then subsisting between her and Connecticut; but what was the consequence? the Congress had no power to carry the decree into execution. Hence the distraction and animosity, which have ever since prevailed, and still continue in that part of the country. Ought the government then to remain any longer incomplete ? I hope not; no person can be so insensible to the lessons of experience as to desire it.
It is brought as an objection “that there will be a rivalship between the State governments and the general government; on each side endeavors will be made to increase power.”
Let us examine a little into this subject. The gentlemen tell you, Sir, that they expect the States will not possess any power. But I think there is reason to draw a different conclusion. Under this system their respectability and power will increase with that of the general government. I believe their happiness and security will increase in a still greater proportion. Let us attend a moment to the situation of this country: it is a maxim of every government, and it ought to be a maxim with us, that the increase of numbers increases the dignity, the security, and the respectability of all governments; it is the first command given by the Deity to man, increase and multiply; this applies with peculiar force to this country, the smaller part of whose territory is yet inhabited. We are representatives, Sir, not merely of the present age, but of future times; nor merely of the territory along the sea coast, but of regions immensely extended westward. We should fill, as fast as possible, this extensive country, with men who shall live happy, free and secure. To accomplish this great end ought to be the leading view of all our patriots and statesmen. But how is it to be accomplished, but by establishing peace and harmony among ourselves, and dignity and respectability among foreign nations? By these means, we may draw numbers from the other side of the Atlantic, in addition to the natural sources of population. Can either of these objects be attained without a protecting head? When we examine history, we shall find an important fact, and almost the only fact, which will apply to all confederacies.
They have all fallen to pieces, and have not absorbed the subordinate governments.
In order to keep republics together they must have a strong binding force, which must be either external or internal. The situation of this country shows, that no foreign force can press us together; the bonds of our union ought therefore to be indissolubly strong.
The power of the States, I apprehend, will increase with the population, and the happiness of their inhabitants. Unless we can establish a character abroad, we shall be unhappy from foreign restraints, or internal violence. These reasons, I think, prove sufficiently the necessity of having a federal head. Under it the advantages enjoyed by the whole union would be participated by every State. I wish honorable gentlemen would think not only of themselves, not only of the present age, but of others, and of future times.
It has been said, “that the State governments will not be able to make head against the general government;” but it might be said with more propriety, that the general government will not be able to maintain the powers given it against the encroachments and combined attacks of the State governments. They possess some particular advantages, from which the general government is restrained. By this system, there is a provision made in the constitution, that no senator or representative shall be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during the time for which he was elected; and no person holding any office under the United States can be a member of either house; but there is no similar security against State influence, as a representative may enjoy places and even sinecures under the State governments. On which side is the door most open to corruption? If a person in the legislature is to be influenced by an office, the general government can give him none unless he vacate his seat. When the influence of office comes from the State government, he can retain his seat and salary too. But it is added, under this head, “that State governments will lose the attachment of the people, by losing the power of conferring advantages, and that the people will not be at the expense of keeping them up.” Perhaps the State governments have already become so expensive as to alarm the gentlemen on that head. I am told that the civil list of this State amounted to 40,000 in one year. Under the proposed government, I think it would be possible to obtain in Pennsylvania every advantage we now possess, with a civil list that shall not exceed one-third of that sum.
How differently the same thing is talked of, if it be a favorite or otherwise! When advantages to an officer are to be derived from the general government, we hear them mentioned by the name of bribery, but when we are told of the State governments losing the power of conferring advantages, by the disposal of offices, it is said they will lose the attachment of the people. What is in one instance corruption and bribery, is in another the power of conferring advantages.
We are informed that “the State elections will be ill attended, and that the State governments will become mere boards of electors.” Those who have a due regard for their country, will discharge their duty, and attend ; but those who are brought only from interest or persuasion had better stay away; the public will not suffer any disadvantage from their absence. But the honest citizen, who knows the value of the privilege, will undoubtedly attend, to secure the man of his choice. The power and business of the State legislatures relates to the great objects of life, liberty and property; the same are also objects of the general government.
Certainly the citizens of America will be as tenacious in the one instance as in the other. They will be interested, and I hope will exert themselves, to secure their rights not only from being injured by the State governments, but also from being injured by the general government.
“The power over election, and of judging of elections gives absolute sovereignty;” this power is given to every State legislature, yet I see no necessity that the power of absolute sovereignty should accompany it. My general position is, that the absolute sovereignty never goes from the people.
We are told, “that it will be in the power of the senate to prevent any addition of representatives to the lower house.”
I believe their power will be pretty well balanced, and though the senate should have a desire to do this, yet the attempt will answer no purpose; for the house of representatives will not let them have a farthing of public money, till they agree to it. And the latter influence will be as strong as the other.
“Annual assemblies are necessary” it is saidand I answer, in many instances they are very proper. In Rhode Island and Connecticut they are elected for six months. In larger States, that period would be found very inconvenient, but in a government as large as that of the United States, I presume that annual elections would be more disproportionate, than elections for six months would be in some of our largest States.
“The British Parliament took to themselves the prolongation of their sitting to seven years. But even in the British Parliament the appropriations are annual.”
But Sir, how is the argument to apply here ?how are the congress to assume such a power? They cannot assume it under the constitution, for that expressly provides “the members of the house of representatives shall be chosen every two years, by the people of the several States, and the senators for six years.” So if they take it at all, they must take it by usurpation and force.
“Appropriations may be made for two years,though in the British Parliament they are made but for one.” For some purposes, such appropriations may be made annually, but for every purpose they are not; even for a standing army, they may be made for seven, ten, or fourteen yearsthe civil list is established during the life of a prince. Another objection is “that the members of the senate may enrich themselvesthey may hold their office as long as they live, and there is no power to prevent them; the senate will swallow up everything.” I am not a blind admirer of this system. Some of the powers of the senators are not with me the favorite parts of it, but as they stand connected with other parts, there is still security against the efforts of that body: it was with great difficulty that security was obtained, and I may risk the conjecture, that if it is not now accepted, it never will be obtained again from the same States. Though the senate was not a favorite of mine, as to some of its powers, yet it was a favorite with a majority in the Union, and we must submit to that majority, or we must break up the Union. It is but fair to repeat those reasons, that weighed with the convention; perhaps I shall not be able to do them justice, but yet I will attempt to show, why additional powers were given to the senate, rather than to the house of representatives. These additional powers, I believe, are, that of trying impeachments, that of concurring with the President in making treaties, and that of concurring in the appointment of officers. These are the powers that are stated as improper. It is fortunate, that in the exercise of every one of them, the Senate stands controlled; if it is that monster which it said to be, it can only show its teeth, it is unable to bite or devour. With regard to impeachments, the senate can try none but such as will be brought before them by the house of representatives.
The senate can make no treaties; they can approve of none unless the President of the United States lay it before them. With regard to the appointment of officers, the President must nominate before they can vote. So that if the powers of either branch are perverted, it must be with the approbation of some one of the other branches of government: thus checked on each side, they can do no one act of themselves.
“The powers of Congress extend to taxation, to direct taxation, to internal taxation, to poll taxes, to excises, to other State and internal purposes.” Those who possess the power to tax, possess all other sovereign power. That their powers are thus extensive is admitted; and would any thing short of this have been sufficient? is it the wish of these gentlemen? If it is, let us hear their sentiments, that the general government should subsist on the bounty of the States. Shall it have the power to contract, and no power to fulfil the contract? Shall it have the power to borrow money, and no power to pay the principal or interest? Must we go on, in the track that we have hitherto pursued? and must we again compel those in Europe, who lent us money in our distress, to advance the money to pay themselves interest on the certificates of the debts due to them?
This was actually the case in Holland, the last year. Like those who have shot one arrow, and cannot regain it, they have been obliged to shoot another in the same direction, in order to recover the first. It was absolutely necessary, Sir, that this government should possess these rights, and why should it not as well as the State governments? Will this government be fonder of the exercise of this authority, than those of the States are? Will the States, who are equally represented in one branch of the legislature, be more opposed to the payment of what shall be required by the future, than what has been required by the present Congress? Will the people, who must indisputably pay the whole, have more objections to the payment of this tax, because it is laid by persons of their own immediate appointment, even if those taxes were to continue as oppressive as they now are?but under the general power of this system, that cannot be the case in Pennsylvania. Throughout the union, direct taxation will be lessened, at least in proportion to the increase of the other objects of revenue. In this constitution, a power is given to Congress to collect imposts, which is not given by the present articles of confederation. A very considerable part of the revenue of the United States will arise from that source; it is the easiest, most just, and most productive mode of raising revenue; and it is a safe one, because it is voluntary. No man is obliged to consume more than he pleases, and each buys in proportion only to his consumption. The price of the commodity is blended with the tax, and the person is often not sensible of the payment. But would it have been proper to have rested the matter there? Suppose the funds should not prove sufficient, ought the public debts to remain unpaid?or the exigencies of government be left unprovided for? Should our tranquility be exposed to the assaults of foreign enemies, or violence among ourselves, because the objects of commerce may not furnish a sufficient revenue to secure them all? Certainly Congress should possess the power of raising revenue from their constituents, for the purpose mentioned in the eighth section of the first article, that is “to pay the debts and provide for the common defence and general welfare of the United States.” It has been common with the gentlemen, on this subject, to present us with frightful pictures. We are told of the hosts of tax-gatherers that will swarm through the land; and whenever takes are mentioned, military force seems to be an attending idea. I think I may venture to predict, that the taxes of the general government (if any shall be laid) will be more equitable, and much less expensive, than those imposed by the State government.
I shall not go into an investigation of this subject; but it must be confessed, that scarcely any mode of laying and collecting taxes can be more burdensome than the present.
Another objection is, “that Congress may borrow money, keep up standing armies, and command the militia.” The present Congress possesses the power of borrowing money and of keeping up standing armies. Whether it will be proper at all times to keep up a body of troops, will be a question to be determined by Congress; but I hope the necessity will not subsist at all times; but if it should subsist, where is the gentleman that will say that they ought not to possess the necessary power of keeping them up?
It is urged, as a general objection to this system, that “the powers of Congress are unlimited and undefined, and that they will be the judges, in all cases, of what is necessary and proper for them to do.” To bring this subject to your view, I need do no more than point to the words in the constitution, beginning at the 8th sect. art. 1st. “The Congress (it says) shall have power, &c.&;quot; I need not read over the words, but I leave it to every gentleman to say whether the powers are not as accurately and minutely defined, as can be well done on the same subject, in the same language. The old constitution is as strongly marked on the subject; and even the concluding clause, with which so much fault has been found, gives no more, or other powers; nor does it in any degree go beyond the particular enumeration; for when it is said, that Congress shall have power to make all laws which shall be necessary and proper, those words are limited, and defined by the following, ” for carrying into execution the foregoing powers.” It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.
I shall not detain the house, at this time, with any further observations on the liberty of the press, until it is shown that Congress have any power whatsoever to interfere with it, by licensing it, or declaring what shall be a libel.
I proceed to another objection, which was not so fully stated as I believe it will be hereafter; I mean the objection against the judicial department. The gentleman from Westmoreland only mentioned it to illustrate his objection to the legislative department. He said “that the judicial powers were so co-extensive with the legislative powers, and extend even to capital cases.” I believe they ought to be co-extensive, otherwise laws would be framed, that could not be executed. Certainly, therefore, the executive and judicial departments ought to have power commensurate to the extent of the laws; for, as I have already asked, are we to give power to make laws, and no power to carry them into effect?
I am happy to mention the punishment annexed to one crime. You will find the current running strong in favor of humanity. For this is the first instance in which it has not been left to the legislature, to extend the crime and punishment of treason so far as they thought proper. This punishment, and the description of this crime, are the great sources of danger and persecution, on the part of government against the citizen. Crimes against the state! and against the officers of the state! History informs us, that more wrong may be done on this subject than on any other whatsoever. But under this constitution, there can be no treason against the United States, except such as is defined in this constitution. The manner of trial is clearly pointed out; the positive testimony of two witnesses to the same overt act, or a confession in open court, is required to convict any person of treason. And after all, the consequence of the crime shall extend no further than the life of the criminal; for no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.
I come now to consider the last set of objections that are offered against this constitution. It is urged, that this is not such a system as was within the powers of the convention; they assumed the power of proposing. I believe they might have made proposals without going beyond their powers. I never heard before, that to make a proposal was an exercise of power. But if it is an exercise of power, they certainly did assume it; yet they did not act as that body who framed the present constitution of Pennylvania acted; they did not by an ordinance attempt to rivet the constitution on the people, before they could vote for members of assembly under it. Yet such was the effect of the ordinance that attended the constitution of this commonwealth. I think the late convention have done nothing beyond their powers. The fact is, they have exercised no power at all. And in point of validity, this constitution proposed by them for the government of the United States, claims no more than a production of the same nature would claim, flowing from a private pen. It is laid before the citizens of the United States, unfettered by restraint; it is laid before them, to be judged by the natural, civil and political rights of men. By their FIAT, it will become of value and authority; without it, it will never receive the character of authenticity and power. The business, we are told, which was entrusted to the late convention, was merely to amend the present articles of confederation. This observation has been frequently made, and has often brought to my mind a story that is related of Mr. Pope, who it is well known, was not a little deformed. It was customary with him, to use this phrase, ” God mend me,” when any little incident happened. One evening a link boy was lighting him along, and coming to a gutter, the boy jumped nimbly over itMr. Pope called to him to turn, adding, “God mend me:” The arch rogue turned to light himlooked at him, and repeated, “God mend you! he would sooner make a half-a-dozen new ones.” This would apply to the present confederation; for it would be easier to make another than to mend this. The gentlemen urge, that this is such a government as was not expected by the people, the legislatures, nor by the honorable gentlemen who mentioned it. Perhaps it was not such as was expected, but it may be BETTER; and is that a reason why it should not be adopted? It is not worse, I trust, than the former. So that the argument of its being a system not expected, is an argument more strong in its favor than against it. The letter which accompanies this constitution, must strike every person with the utmost force. ” The friends of our country have long seen and desired the power of war, peace and treaties, that of levying money and regulating commerce, and the corresponding executive and judicial authorities, should be fully and effectually vested in the general government of the union; but the impropriety of delegating such extensive trust to one body of men, is evident. Hence results the necessity of a different organization.” I therefore do not think it can be urged as an objection against this system, that it was not expected by the people. We are told, to add greater force to these objections, that they are not on local, but on general principles, and that they are uniform throughout the United States. I confess I am not altogether of that opinion; I think some of the objections are inconsistent with others, arising from a different quarter, and I think some are inconsistent even with those derived from the same source. But, on this occasion, let us take the fact for granted, that they are all on general principles, and uniform throughout the United States. Then we can judge of their full amount; and what are they, BUT TRIFLES LIGHT AS AIR? We see the whole force of them; for according to the sentiments of opposition, they can no where be stronger, or more fully stated, than here. The conclusion, from all these objections, is reduced to a point, and the plan is declared to be inimical to our liberties. I have said nothing, and mean to say nothing, concerning the dispositions or characters of those that framed the work now before you. I agree that it ought to be judged by its own intrinsic qualities. If it has not merit, weight of character ought not to carry it into effect. On the other hand, if it has merit and is calculated to secure the blessings of liberty and to promote the general welfare, then such objections as have hitherto been made ought not to influence us to reject it.
I am now led to consider those qualities that this system of government possesses, which will entitle it to the attention of the United States. But as I have somewhat fatigued myself, as well as the patience of the honorable members of this house, I shall defer what I have to add on this subject until the afternoon.
Before I proceed to consider those qualities in the constitution before us, which I think will endure in our approbation, permit me to make some remarks, and they shall be very concise, upon the objections that were offered this forenoon, by the member from Fayette (Mr. Smilie). I do it at this time, because I think it will be better to give a satisfactory answer to the whole of the objections, before I proceed to the other part of my subject. I find that the doctrine of a single legislature is not to be contended for in this constitution. I shall therefore say nothing on that point. I shall consider that part of the system, when we come to view its excellencies. Neither shall I take particular notice of his observation on the qualified negative of the president; for he finds no fault with it; he mentions, however, that he thinks it a vain and useless power, because it can never be executed. The reason he assigns for this is, that the king of Great Britain, who has an absolute negative over the laws proposed by parliament, has never exercised it, at least not for many years. It is true, and the reason why he did not exercise it, was, that during all that time, the king possessed a negative before the bill had passed through the two houses; a much stronger power than a negative after debate. I believe, since the revolution, at the time of William the Third, it was never known that a bill disagreeable to the crown passed both houses. At one time in the reign of Queen Anne, when there appeared some danger of this being effected, it is well known that she created twelve peers, and by that means effectually defeated it. Again, there was some risk of late years in the present reign, with regard to Mr. Fox's East-India bill, as it is usually called, that passed through the house of commons, but the king had interest enough in the house of peers, to have it thrown out; thus it never came up for the royal assent. But that is no reason why this negative should not be exercised here, and exercised with great advantage. Similar powers are known in more than one of the States. The governors of Massachusetts and New York have a power similar to this; and it has been exercised frequently, to good effect.
I believe the governor of New York, under this power, has been known to send back five or six bills in a week; and I well recollect that at the time the funding system was adopted by our legislature, the people in that State considered the negative of the governor as a great security that their legislature would not be able to incumber them by a similar measure. Since that time an alteration has been supposed in the governor's conduct, but there has been no alteration in his power.
The honorable gentleman from Westmoreland (Mr. Findley) by his highly refined critical abilities, discovers an inconsistency in this part of the constitution and that which declares, in section first: ” All legislative powers, herein granted, shall be vested in the Congress of the United States, which shall consist of a senate and a house of representatives,” and yet here, says he, is a power of legislation given to the president of the United States, because every bill, before it becomes a law, shall be presented to him: thus he is said to possess legislative powers. Sir, the convention observed on this occasion strict propriety of language; “if he approve the bill when it is sent, he shall sign it, but if not, he shall return it; ” but no bill passes in consequence of having his assenttherefore he possesses no legislative authority.
The effect of his power, upon this subject, is merely this: if he disapproves a bill, two-thirds of the legislature become necessary to pass it into a law, instead of a bare majority. And when two-thirds are in favor of the bill, it becomes a law, not by his, but by authority of the two houses of the legislature. We are told, in the next place, by the honorable gentleman from Fayette (Mr. Smilie) that in the different orders of mankind, there is that of a natural aristocracy. On some occasions, there is a kind of magical expression, used to conjure up ideas, that may create uneasiness and apprehension. I hope the meaning of the words is understood by the gentleman who used them. I have asked repeatedly of gentlemen to explain, but have not been able to obtain the explanation of what they meant by a consolidated government. They keep round and round about the thing, but never define. I ask now what is meant by a natural aristocracy? I am not at a loss for the etymological definition of the term, for, when we trace it to the language from which it is derived, an aristocracy means nothing more or less than a government of the best men in the community, or those who are recommended by the words of the constitution of Pennsylvania, where it is directed, that the representatives should consist of those most noted for wisdom and virtue. Is there any danger in such representation? I shall never find fault, that such characters are employed. Happy for us, when such characters can be obtained. If this is meant by a natural aristocracy, and I know no other, can it be objectionable that men should be employed that are most noted for their virtue and talents? And are attempts made to mark out these as the most improper persons for the public confidence?
I had the honor of giving a definition, and I believe it was a just one, of what is called an aristocratic government. It is a government where the supreme power is not retained by the people, but resides in a select body of men, who either fill up the vacancies that happen by their own choice and election, or succeed on the principle of descent, or by virtue of territorial possessions, or some other qualifications that are not the result of personal properties. When I speak of personal properties, I mean the qualities of the head and the disposition of the heart.
We are told that the representatives will not be known to the people, nor the people to the representatives, because they will be taken from large districts where they cannot be particularly acquainted. There has been some experience in several of the States upon this subject, and I believe the experience of all who have had experience, demonstrates that the larger the district of election, the better the representation. It is only in remote corners of a government, that little demagogues arise. Nothing but real weight of character, can give a man real influence over a large district. This is remarkably shown in the commonwealth of Massachusetts. The members of the house of representatives are chosen in very small districts, and such has been the influence of party cabal and little intrigue in them, that a great majority seem inclined to show very little disapprobation of the conduct of the insurgents in that State.
The governor is chosen by the people at large, and that State is much larger than any district need be under the proposed constitution. In their choice of their governor, they have had warm disputes; but however warm the disputes, their choice only vibrated between the most eminent characters. Four of their candidates are well known; Mr. Hancock, Mr. Bowdoin, General Lincoln, and Mr. Gorham, the late president of Congress.
I apprehend it is of more consequence to be able to know the true interest of the people, than their faces; and of more consequence still, to have virtue enough to pursue the means of carrying that knowledge usefully into effect. And surely when it has been thought hitherto, that a representation in Congress of from five to two members, was sufficient to represent the interest of this State, is it not more than sufficient to have ten members in that body? and those in a greater comparative proportion than heretofore? The citizens of Pennsylvania will be represented by eight, and the State by two. This, certainly, though not gaining enough, is gaining a good deal; the members will be more distributed through the State, being the immediate choice of the people, who hitherto have not been represented in that body. It is said that the house of representatives will be subject to corruption, and the senate possess the means of corrupting, by the share they have in the appointment to office. This was not spoken in the soft language of attachment to government. It is perhaps impossible, with all the caution of legislators and statesmen, to exclude corruption and undue influence entirely from government. All that can be done, upon this subject, is done in the constitution before you. Yet it behoves us to call out, and add, every guard and preventative in our power. I think, Sir, something very important, on this subject, is done in the present system. For it has been provided, effectually, that the man that has been bribed by an office, shall have it no longer in his power to earn his wages. The moment he is engaged to serve the senate, in consequence of their gift, he no longer has it in his power to sit in the house of representatives. For “no representative shall, during the term for which he was elected, be appointed to any civil office, under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time.” And the following annihilates corruption of that kind: ” and no person holding any office under the United States, shall be a member of either house, during his continuance in office.” So that the mere acceptance of an office as a bribe, effectually destroys the end for which it was offered. Was this attended to when it was mentioned, that the members of the one house could be bribed by the other? “But the members of the senate may enrich themselves,” was an observation made as an objection to this system. As the mode of doing this has not been pointed out, I apprehend the objection is not much relied upon. The senate are incapable of receiving any money except what is paid them out of the public treasure. They cannot vote to themselves a single penny, unless the proposition originates from the other house. This objection therefore is visionary like the following one, “that pictured group, that numerous host and prodigious swarm of officers, which are to be appointed under the general government.” The gentlemen tell you that there must be judges of the supreme and judges of the inferior courts, with all their appendages. There will be tax-gatherers swarming throughout the land. Oh! say they, if we could ennumerate the offices and the numerous officers that must be employed every day in collecting and receiving and comptrolling the moneys of the United States, the number would be almost beyond imagination. I have been told, but I do not vouch for the fact, that there are not in some shape or another more than a thousand persons in this very state who get their living in assessing and collecting our revenues from the other citizens. Sir, when this business of revenue is conducted on a general plan, we may be able to do the business of the thirteen states with an equal, nay, with a less numberinstead of thirteen comptroller generals, one comptroller will be sufficient; I apprehend that the number of officers under this system will be greatly reduced from the number now employed. For as congress can now do nothing effectually, the states are obliged to do everything. And in this very point, I apprehend that we shall be great gainers.
Sir, I confess I wish the powers of the senate were not as they are. I think it would have been better if those powers had been distributed in other parts of the system. I mentioned some circumstances in the forenoon, that I had observed on this subject. I may mention now, we may think ourselves very well off, Sir, that things are as well as they are, and that that body is even so much restricted. But surely objections of this kind come with a bad grace from the advocates, or those who prefer the present confederation, and who wish only to increase the powers of the present Congress. A single body, not constituted with checks like the proposed one, who possess not only the power of making treaties, but executive powers, would be a perfect despotism: but, further, these powers are, in the present confederation, possessed without control.
As I mentioned before, so I will beg leave to repeat, that this senate can do nothing without the concurrence of some other branch of the government. With regard to their concern in the appointment to offices, the president must nominate before they can be chosen; the president must acquiesce in that appointment. With regard to their power in forming treaties, they can make none, they are only auxiliaries to the president. They must try all impeachments ; but they have no power to try any until presented by the house of representatives; and when I consider this subject, though I wish the regulations better, I think no danger to the liberties of this country can arise even from that part of the system. But these objections, I say, come with a bad grace from those who prefer the present confederation, who think it only necessary to add more powers to a body organized in that form. I confess, likewise, that by combining those powers, of trying impeachments, and making treaties, in the same body, it will not be so easy as I think it ought to be, to call the senators to an account for any improper conduct in that business.
Those who proposed this system, were not inattentive to do all they could. I admit the force of the observation, made by the gentleman from Fayette (Mr. Smilie) that when two-thirds of the senate concur in forming a bad treaty, it will be hard to procure a vote of two-thirds against them, if they should be impeached. I think such a thing is not to be expected; and so far they are without that immediate degree of responsibility, which I think requisite to make this part of the work perfect. But this will not be always the case. When a member of senate shall behave criminally, the criminality will not expire with his office. The senators may be called to account after they shall have been changed, and the body to which they belonged shall have been altered. There is a rotation; and every second year one-third of the whole number go out. Every fourth year two-thirds of them are changed. In six years the whole body is supplied by new one. Considering it in this view, responsibility is not entirely lost. There is another view in which it ought to be considered, which will show that we have a greater degree of security. Though they may not be convicted on impeachment before the senate, they may be tried by their country: and if their criminality is established, the law will punish. A grand jury may present, a petty jury may convict, and the judges will pronounce the punishment. This is all that can be done under the present confederation, for under it there is no power of impeachment; even here then we gain something. Those parts that are exceptionable in this constitution, are improvements on that concerning which so much pains are taken to persuade us, that it is preferable to the other.
The last observation respects the judges. It is said that if they dare to decide against the law, one house will impeach them, and the other will convict them. I hope gentlemen will show how this can happen, for bare supposition ought not to be admitted as proof. The judges are to be impeached, because they decide an act null and void, that was made in defiance of the constitution! What house of representatives would dare to impeach, or senate to commit judges for the performance of their duty? These observations are of a similar kind to those with regard to the liberty of the press.
I will now proceed to take some notice of those qualities in this constitution, that I think entitle it to our respect and favor. I have not yet done, Sir, with the great principle on which it stands; I mean the practical recognition of this doctrine, that in the United States the people retain the supreme power.
In giving a definition of the simple kinds of government known throughout the world, I have occasion to describe what I meant by a democracy; and I think I termed it, that government in which the people retain the supreme power, and exercise it either collectively or by representation. This constitution declares this principle in its terms and in its consequences, which is evident from the manner in which it is announced”WE, THE PEOPLE OF THE UNITED STATES. After all the examination which I am able to give the subject, I view this as the only sufficient and the most honorable basis, both for the people and government, on which our constitution can possibly rest. What are all the contrivances of states, of kingdoms and empires? What are they all intended for? They are all intended for man, and our natural character and natural rights are certainly to take place, in preference to all artificial refinements that human wisdom can devise.
I am astonished to hear the ill-founded doctrine, that States alone ought to be represented in the federal government; these must possess sovereign authority forsooth, and the people be forgot! No: let us reascend to first principles. That expression is not strong enough to do my ideas justice. Let us RETAIN first principles. The people of the United States are now in the possession and exercise of their original rights, and while this doctrine is known and operates, we shall have a cure for every disease.
I shall mention another good quality belonging to this system. In it the legislative, executive and judicial powers are kept nearly independent and distinct. I express myself in this guarded manner because I am aware of some powers that are blended in the senate. They are but few, and they are not dangerous. It is an exception, yet that exception consists of but few instances and none of them dangerous. I believe in no constitution for any country on earth is this great principle so strictly adhered to or marked with so much precision and accuracy as in this. It is much more accurate than that which the honorable gentleman so highly extols, I mean the constitution of England. There, Sir, one branch of the legislature can appoint the members of another. The king has the power of introducing members into the House of Lords. I have already mentioned that in order to obtain a vote, twelve peers were poured into that house at one time; the operation is the same as might be under this constitution if the president had a right to appoint the members of the senate. This power of the king’s extends into the others branch, where, though he cannot immediately introduce a member, yet he can do it remotely by virtue of his prerogative as he may create boroughs with power to send members to the House of Commons. The House of Lords form a much stronger exception to this principle than the senate in this system; for the House of Lords possess judicial powers, not only that of trying impeachments, but that of trying their own members, and civil causes when brought before them from the courts of chancery and the other courts in England.
If we therefore consider this constitution with regard to this special object, though it is not so perfect as I would wish, yet it is more perfect than any other government that I know.
I proceed to another property which I think will recommend it to those who consider the effects of beneficence and wisdom. I mean the division of this legislative authority into two branches. I had an opportunity of dilating somewhat on this subject before, and as it is not likely to afford a subject of debate, I shall take no further notice of it, than barely to mention it. The next good quality that I remark is that the executive authority is one; by this means we obtain very important advantages. We may discover from history, from reasoning, and from experience, the security which this furnishes. The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our president; he cannot act improperly and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality. No appointment can take place without his nomination; and he is responsible for every nomination he makes. We secure vigor. We well know what numerous executives are; we know there is neither vigor, decision nor responsibility in them. Add to all this: That officer is placed high, and is possessed of power far from being contemptible, yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.
Sir, it has often been a matter of surprise, and frequently complained of even in Pennsylvania, that the independence of the judges is not properly secured. The servile dependence of the judges, in some of the States, that have neglected to make proper provision on this subject, endangers the liberty and property of the citizen; and I apprehend that whenever it has happened that the appointment has been for a less period than during good behaviour, this object has not been sufficiently secured; for if every five or seven years the judges are obliged to make court for a re-appointment to office, they cannot be styled independent. This is not the case with regard to those appointed under the general government, for the judges here shall hold their offices during good behaviour. I hope no further objections will be taken against this part of the constitution, the consequence of which will be that private property (so far as it comes before their courts) and personal liberty, so far as it is not forfeited by crimes, will be guarded with firmness and watchfulness.
It may appear too professional to descend into observations of this kind, but I believe that public happiness, personal liberty and private property, depend essentially upon the able and upright determinations of independent judges.
Permit me to make one more remark on the subject of the judicial department. Its objects are extended beyond the bounds of power of every particular State, and therefore must be proper objects of the general government. I do not recollect any instance where a case can come before the judiciary of the United States that could possibly be determined by a particular State, except one, which is, where citizens of the same state claim lands under the grant of different States, and in that instance the power of the two States necessarily comes in competition; wherefore there would be great impropriety in having it determined by either.
Sir, I think there is another subject with regard to which this constitution deserves approbation. I mean the accuracy with which the line is drawn between the powers of the general government, and that of the particular State governments. We have heard some general observations on this subject, from the gentlemen who conduct the opposition. They have asserted that these powers are unlimited and undefined. These words are as easily pronounced as limited and defined. They have already been answered by my honorable colleague (Mr. M’Kean) therefore, I shall not enter into an explanation; but it is not pretended, that the line is drawn with mathematical precision; the inaccuracy of language must, to a certain degree, prevent the accomplishment of such a desire. Whoever views the matter in a true light, will see that the powers are as minutely enumerated and defined as was possible, and will also discover that the general clause, against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted.
But let us suppose (and the supposition is very easy in the minds of the gentlemen on the other side) that there is some difficulty in ascertaining where the true line lies. Are we therefore thrown into despair? Are disputes between the general government and the State governments to be necessarily the consequence of inaccuracy? I hope, Sir, they will not be the enemies of each other, or resemble comets in conflicting orbits mutually operating destruction: but that their motion will be better represented by that of the planetary system, where each part moves harmoniously within its proper sphere, and no injury arises by interference or opposition. Every part, I trust, will be considered as a part of the United States. Can any cause of distrust arise here? Is there any increase of risk? or rather are not the enumerated powers as well defined here as in the present articles of confederation ?
Permit me to proceed to what I deem another excellency of this systemall authority of every kind is derived by REPRESENTATION from the PEOPLE and the DEMOCRATIC principle is carried into every Bart of the government. I had an opportunity when I spoke first of going fully into an elucidation of this subject. I mean not now to repeat what I then said.
I proceed to another quality that I think estimable in this system, it secures in the strongest manner the right of suffrage. Montesquieu, book 2d, ch. 2d, speaking of laws relative to democracy, says:
“When the body of the people is possessed of the SUPREME POWER, this is called a democracy. When the SUPREME POWER is lodged in the hands of a part of the people, it is then an aristocracy.
” In a democracy the people are in some respects the sovereign, and in others the subject.
“There can be no exercise of sovereignty but by their suffrages, which are their own will. Now, the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage are fundamental to this government. And indeed it is as important to regulate in a republic in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is in a monarchy, to know who is the prince, and after what manner he ought to govern.”
In this system it is declared that the electors in each state shall have the qualification requisite for electors of the most numerous branch of the state legislature. This being made the criterion of the right of suffrage, it is consequently secured, because the same constitution guarantees to every state in the union a republican form of government. The right of suffrage is fundamental to republics.
Sir, there is another principle that I beg leave to mention. Representation and direct taxation under this constitution are to be according to numbers. As this is a subject which I believe has not been gone into in this house, it will be worth while to show the sentiments of some respectable writers thereon. Montesquieu, in considering the requisites in a confederate republic, book 9th, ch. 3d, speaking of Holland observes, “It is difficult for the United States to be all of equal power and extent. The Lycian 34 republic was an association of twenty-three towns; the large ones had three votes in the common council, the middling ones two, and the small towns one. The Dutch republic consists of seven provinces of different extent of territory which have each one voice.
The cities of Lycia 35 contributed to the expenses of the stale according to the proportion of suffrages. The provinces of the United Netherlands cannot follow this proportion ; they must be directed by that of their power.
In Lycia 36 the judges and town magistrates were elected by the common council, and according to the proportion already mentioned. In the republic of Holland, they are not chosen by the common council, but each town names its magistrates. Were I to give a model of an excellent confederate republic, I should pitch upon that of Lycia.
I have endeavored, in all the books that I could have access to, to acquire some information relative to the Lycian republic, but its history is not to be found ; the few facts that relate to it are mentioned only by Strabo ; and however excellent the model it might present, we were reduced to the necessity of working without it. Give me leave to quote the sentiments of another author, whose peculiar situation and extensive worth throws a lustre on all he saysI mean Mr. Neckarwhose ideas are very exalted both in theory and practical knowledge on this subject. He approaches the nearest to the truth in his calculations from experience, and it is very remarkable that he makes use of that expression. His words are: 37 “Population can therefore be only looked on as an exact measure of comparison, when the provinces have resources nearly equal; but even this imperfect rule of proportion ought not to be neglected. And of all the objects which may be subjected to a determined and positive calculation, that of the taxes to the population approaches nearest to the truth.”
Another good quality in this constitution is, that the members of the legislature cannot hold offices under the authority of this government. The operation of this, I apprehend, would be found to be very extensive and very salutary in this country, to prevent those intrigues, those factions, that corruption, that would otherwise rise here, and have risen so plentiful in every other country. The reason why it is necessary in England to continue such influence, is that the crown, in order to secure its own influence against two other branches of the legislature, must continue to bestow places, but those places produce the opposition which frequently runs so strong in the British Parliament.
Members who do not enjoy offices combine against those who do enjoy them. It is not from principle that they thwart the ministry in all its operations. No; their language is: Let us turn them out and succeed to their places. The great source of corruption in that country, is that persons may hold offices under the crown, and seats in the legislature at the same time.
I shall conclude at present, and I have endeavored to be as concise as possible, with mentioning that, in my humble opinion, the powers of the general government are necessary and well defined; that the restraints imposed on it, and those imposed on the State governments, are rational and salutary, and that it is entitled to the approbation of those for whom it was intended.
I recollect, on a former day, the honorable gentleman from Westmoreland (Mr. Findley), and the honorable gentleman from Cumberland (Mr. Whitehill), took exceptions against the first clause of the 9th sect., art. Z, arguing very unfairly, that because Congress might impose a tax or duty of ten dollars on the importation of slaves within any of the United States, Congress might therefore permit slaves to be imported within this State, contrary to its laws. I confess I little thought that this part of the system would be excepted to.
I am sorry that it could be extended no further; but so far as it operates, it presents us with the pleasing prospect that the rights of mankind will be acknowledged and established throughout the Union.
If there was no other lovely feature in the constitution but this one, it would diffuse a beauty over its whole countenance. Yet the lapse of a few years, and Congress will have power to exterminate slavery from within our borders.
How would such a delightful prospect expand the breast of a benevolent and philanthropic European! Would he cavil at an expression, catch at a phrase? No, Sir; that is only reserved for the gentleman on the other side of your chair to do. What would be the exultation of that great man, whose name I have just mentioned, we may learn from the following sentiments on this subject. They cannot be expressed so well as in his own words. 38
“The colonies of France contain, as we have seen, near five hundred thousand slaves, and it is from the number of these wretches that the inhabitants set a value on their plantations. What a fatal prospect! and how profound a subject for reflection! Alas! how inconsequent we are, both in our morality and our principles. We preach up humanity, and yet go every year to bind in chains twenty thousand natives of Africa! We call the Moors barbarians and ruffians because they attack the liberty of Europeans at the risk of their own; yet these Europeans go without danger and as mere speculators to purchase slaves, by gratifying the cupidity of their masters, and excite all those bloody scenes which are the usual preliminaries of this traffic! In short, we pride ourselves on the superiority of man, and it is with reason that we discover this superiority in the wonderful and mysterious unfolding of the intellectual faculties; and yet a trifling difference in the hair of the head or in the color of the epidermis, is sufficient to change our respect into contempt, and to engage us to place beings like ourselves, in the rank of those animals devoid of reason, whom we subject to the yoke, that we may make use of their strength and of their instinct at command.
“I am sensible, and I grieve at it, that these reflections which others have made much better than me, are unfortunately of very little use! The necessity of supporting sovereign power has its peculiar laws, and the wealth of nations is one of the foundations of this power: thus the sovereign who should be the most thoroughly convinced of what is due to humanity, would not singly renounce the service of slaves in his colonies; time alone could furnish a population of free people to replace them, and the great difference that would exist in the price of labor would give so great an advantage to the nation that should adhere to the old custom that the others would soon be discouraged in wishing to be more virtuous. And yet, would it be a chimerical project to propose a general compact by which all the European nations should unanimously agree to abandon the traffic of African slaves! They would in that case find themselves exactly in the same proportion relative to each other as at present; for it is only on comparative riches that the calculations of power are founded.
“We cannot as yet indulge such hopes; statesmen in general think that every common idea must be a low one, and since the morals of private people stand in need of being curbed and maintained by the laws, we ought not to wonder if those of sovereigns conform to their independence.
“The time may nevertheless arrive when, fatigued of that ambition which agitates them and of the continual rotation of the same anxieties and the same plans, they may turn their views to the great principles of humanity; and if the present generation is to be witness of this happy revolution, they may at least be allowed to be unanimous in offering up their vows for the perfection of the social virtues and for the progress of public beneficial institutions.”
These are the enlarged sentiments of that great man.
Permit me to make a single observation in this place on the restraints placed on the State governments. If only the following lines were inserted in this constitution, I think it would be worth our adoption: “No State shall hereafter emit bills of credit;make anything but gold and silver coin a tender in payment of debts; pass any bills of attainder, ex post facto law, or law impairing the obligation of contracts.” Fatal experience has taught us, dearly taught us, the value of these restraints. What is the consequence even at this moment? It is true we have no tender law in Pennsylvania; but the moment you are conveyed across the Delaware you find it haunt your journey and follow close upon your heels. The paper passes commonly at twenty-five or thirty per cent. discount. How insecure is property!
These are a few of those properties in this system that I think recommend it to our serious attention, and will entitle it to receive the adoption of the United States. Others might be enumerated, and others still will probably be disclosed by experience.[Of the debates on the 5th and 6th of December no report exists. Neither Lloyd nor the newspapers have preserved for us even a summary. As the convention was in session on each of these days, the lack of any report can only be explained by supposing that no shorthand writer was present. From the manuscript notes of James Wilson, however, it is possible to get some idea of what was said.]
Wednesday, December 5th. 39
On the morning of the 5th, Mr. Findley seems to have made a long speech on the need of a Bill of Rights ; the amount of sovereignty it was safe for the States to give up ; how much the constitution would take from them, and ended with an appeal for a federal in preference to a consolidated government. To say that if the constitution were rejected evil would follow, was, in his opinion, improper. It was acting the tyrant’s part and saying, “Take this or nothing.”
In the afternoon, Mr. Findley spoke on the partial negative of the President, on the system of representation, on the need of annual elections, on the independence of the judges; declared the internal powers of the proposed new government inadmissible; said there was no guard against Congress making paper money, and insisted that if the amendments wanted were not obtained now, they never would be. Mr. Chambers then moved to pass to the consideration of Article 2d.
Thursday, December 6th. 40
Mr. Smilie objected to the powers of Congress over the militia, thought that the representatives were too few; that the President should make all appointments with the advice of a council, and dwelt at great length on the evil of giving Congress command of the militia. In these views he was supported by Mr. Findley.
Friday, December 7th. 41
According to the notes of Mr. Wilson, Mr. Whitehill opened with an attack on the Vice-President. He thought that officer dangerous, as he had a casting vote, and on that vote might often depend his salary. The power of Congress to fix the time of choosing electors was improper; the power of the Senate to make treaties was dangerous.
Mr. Findley did not want the Senate to try impeachments, and objected to blending legislative and executive powers.
Messrs. Whitehill, Smiley and Findley, in turn, then discussed the provision touching the Supreme Court. Mr. Wilson, in his notes, makes no mention of a speech by himself, but Lloyd reports him to have spoken as follows: 42
Mr. Wilson. This is the first time that the article respecting the judicial department has come directly before us. I shall therefore take the liberty of making such observations as will enable honorable gentlemen to see the extent of the views of the convention in forming this article, and the extent of its probable operation.
This will enable gentlemen to bring before this House their objections more pointedly than, without any explanation, could be done. Upon a distinct examination of the different powers, I presume it will be found that not one of them is unnecessary. I will go furtherthere is not one of them but will be discovered to be of such nature, as to be attended with very important advantages. I shall beg leave to premise one remark, that the convention, when they formed this system, did not expect they were to deliver themselves, their relations and their posterity, into the hands of such men as are described by the honorable gentlemen in opposition. They did not suppose that the legislature, under this constitution, would be an association of demons. They thought that a proper attention would be given by the citizens of the United States, at the general election, for members to the House of Representatives; they also believed, that the particular States would nominate as good men as they have heretofore done, to represent them in the Senate. If they should now do otherwise, the fault will not be in Congress, but in the people, or States themselves. I have mentioned oftener than once, that for a people wanting to themselves, there is no remedy.
The convention thought further (for on this very subject, there will appear caution, instead of imprudence in their transactions) they considered, that if suspicions are to be entertained they are to be entertained with regard to the objects in which government have separate interests and separate views from the interests and views of the people. To say that officers of government will oppress, when nothing can be got by oppression, is making an inferrence, bad as human nature is, that cannot be allowed. When persons can derive no advantage from it, it can never be expected they will sacrifice either their duty or their popularity.
Whenever the general government can be a party against a citizen, the trial is guarded and secured in the constitution itself, and therefore it is not in its power to oppress the citizen. In the case of treason, for example, though the prosecution is on the part of the United States, yet the Congress can neither define nor try the crime. If we have recourse to the history of the different governments that have hitherto subsisted, we shall find that a very great part of their tyranny over the people has arisen from the extension of the definition of treason. Some very remarkable instances have occurred, even in so free a country as England. If I recollect right, there is one instance that puts this matter in a very strong point of view. A person possessed a favorite buck, and on finding it killed, wished the horns in the belly of the person who killed it; this happened to be the king; the injured complainant was tried and convicted of treason, for wishing the king’s death.
I speak only of free governments, for in despotic ones, treason depends entirely upon the will of the prince. Let this subject be attended to, and it will be discovered where the dangerous power of the government operates to the oppression of the people. Sensible of this, the convention has guarded the people against it, by a particular and accurate definition of treason.
It is very true, that trial by jury is not mentioned in civil cases; but I take it, that it is very improper to infer from hence, that it was not meant to exist under this government. Where the people are representedwhere the interest of government cannot be separate from that of the people, (and this is the case in trial between citizen and citizen) the power of making regulations with respect to the mode of trial, may certainly be placed in the legislature; for I apprehend that the legislature will not do wrong in an instance from which they can derive no advantage. These were not all the reasons that influenced the convention to leave it to the future Congress to make regulations on this head.
By the constitution of the different States, it will be found that no particular mode of trial by jury could be discovered that would suit them all. The manner of summoning jurors, their qualifications, of whom they should consist, and the course of their proceedings, are all different, in the different States; and I presume it will be allowed a good general principle, that in carrying into effect the laws of the general government by the judicial department, it will be proper to make the regulations as agreeable to the habits and wishes of the particular States as possible; and it is easily discovered that it would have been impracticable, by any general regulation, to have given satisfaction to all. We must have thwarted the custom of eleven or twelve to have accommodated any one. Why do this, when there was no danger to be apprehended from the omission? We could not go into a particular detail of the manner that would have suited each State.
Time, reflection and experience, will be necessary to suggest and mature the proper regulations on this subject; time and experience were not possessed by the convention, they left it therefore to be particularly organized by the legislaturethe representatives of the United States, from time to time, as should be most eligible and proper. Could they have done better?
I know in every part, where opposition has risen, what a handle has been made of this objection; but I trust upon examination it will be seen that more could not have been done with propriety. Gentlemen talk of bills of rights ! What is the meaning of this continual clamor, after what has been urged, though it may be proper in a single State, whose legislature calls itself the sovereign and supreme power? yet it would be absurd in the body of the people, when they are delegating from among themselves persons to transact certain business, to add an enumeration of those things, which they are not to do. “But trial by jury is secured in the bill of rights of Pennsylvania; the parties have a right to trials by jury, which OUGHT to be held sacred,” and what is the consequence? There have been more violations of this right in Pennsylvania, since the revolution, than are to be found in England, in the course of a century.
I hear no objection made to the tenure by which the judges hold their officesit is declared that the judges shall hold them during good behavior; nor to the security which they will have for their salariesthey shall at stated times receive for their services, a compensation which shall not be diminished during their continuance in office.
The article respecting the judicial department, is objected to as going too far, and is supposed to carry a very indefinite meaning. Let us examine thisthe judicial power shall extend to all cases in law and equity, arising under this constitution and the laws of the United States. Controversies may certainly arise under this constitution and the laws of the United States, and is it not proper that there should be judges to decide them? The honorable gentleman from Cumberland (Mr. Whitehill) says, that laws may be made inconsistent with the constitution, and that therefore the powers given to the judges are dangerous; for my part, Mr. President, I think the contrary inference true. If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void. For the power of the constitution predominates. Any thing therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.
The judicial power extends to all cases arising under treaties made, or which shall be made, by the United States. I shall not repeat at this time, what has been said with regard to the power of the States to make treaties; it cannot be controverted, that when made, they ought to be observed. But it is highly proper that this regulation should be made; for the truth is, and I am sorry to say it, that in order to prevent the payment of British debts, and from other causes, our treaties have been violated, and violated too by the express laws of several States in the Union. Pennsylvania, to her honor be it spoken, has hitherto done no act of this kind; but it is acknowledged on all sides, that many States in the Union have infringed the treaty; and it is well known, that when the minister of the United States made a demand of Lord Carmarthen, of a surrender of the western posts, he told the minister, with truth and justice, “The treaty, under which you claim those possessions, has not been performed on your part; until that is done, those possessions will not be delivered up.” This clause, sir, will show the world that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry them into effect, let the legislatures of the different States do what they may.
The power of the judges extends to all cases affecting ambassadors, other public ministers, and consuls. I presume very little objection will be offered to this clause; on the contrary, it will be allowed proper and unexceptionable.
This will also be allowed with regard to the following clause, “all cases of admiralty and maritime jurisdiction.”
The next is, “to controversies to which the United States shall be a party.” Now I apprehend it is something very incongruous, that, because the United States are a party, it should be urged as an objection, that their judges ought not to decide, when the universal practice of all nations have and unavoidably must admit of this power. But, say the gentlemen, the sovereignty of the States is destroyed, if they should be engaged in a controversy with the United States, because a suitor in a court must acknowledge the jurisdiction of that court, and it is not the custom of sovereigns to suffer their names to be made use of in this manner. The answer is plain and easy: The government of each State ought to be subordinate to the government of the United States.
” To controversies between two or more States.” This power is vested in the present congress, but they are unable, as I have already shown, to enforce their decisions. The additional power of carrying their decrees into execution, we find is therefore necessary, and I presume no exception will be taken to it.
” Between a state, and citizens of another State.” When this power is attended to, it will be found to be a necessary one. Impartiality is the leading feature in this Constitution; it pervades the whole. When a citizen has a controversy with another State, there ought to be a tribunal where both parties may stand on a just and equal footing.
” Between citizens of different States, and between a State, or the citizens thereof, and Foreign States, citizens or subjects.” This part of the jurisdiction, I presume, will occasion more doubt than any other part, and at first view it may seem exposed to objections well-founded and of great weight; but I apprehend this can be the case only at first view. Permit me to observe here, with regard to this power, or any other of the foregoing powers given to the Federal court, that they are not exclusively given. In all instances the parties may commence suits in the courts of the several States. Even the United States may submit to such decision if they think proper. Though the citizens of a State, and the citizens or subjects of foreign States, may sue in the federal court, it does not follow that they must sue. These are the instances in which the jurisdiction of the United States may be exercised; and we have all the reason in the world to believe, that it will be exercised impartially; for it would be improper to infer that the judges would abandon their duty, the rather for being independent. Such a sentiment is contrary to experience, and ought not to be hazarded. If the people of the United States are fairly represented, and the president and Senate are wise enough to choose men of abilities and integrity for judges, there can be no apprehension; because, as I mentioned before, the government can have no interest in injuring the citizens.
But when we consider the matter a little further, is it not necessary, if we mean to restore either public or private credit, that foreigners, as well as ourselves, have a just and impartial tribunal to which they may resort? I would ask, how a merchant must feel to have his property lie at the mercy of the laws of Rhode Island? I ask further, how will a creditor feel, who has his debts at the mercy of tender laws in other States? It is true, that under this Constitution, these particular iniquities may be restrained in future; but, Sir, there are other ways of avoiding payment of debts. There have been instalment acts, and other acts of a similar effect. Such things, Sir, destroy the very sources of credit.
Is it not an important object to extend our manufactures and our commerce? This cannot be done, unless a proper security is provided for the regular discharge of contracts. This security cannot be obtained, unless we give the power of deciding upon those contracts to the general governments.
I will mention further, an object that I take to be of particular magnitude, and I conceive these regulations will produce its accomplishment. The object, Mr. President, that I allude to, is the improvement of our domestic navigation, the instrument of trade between the several States. That decay of private credit which arose from the destruction of public credit, by a too inefficient general government, will be restored, and this valuable intercourse among ourselves, must give an encrease to those useful improvements, that will astonish the world. At present, how are we circumstanced? Merchants of eminence will tell you, that they can trust their correspondents without law; but they cannot trust the laws of the State in which their correspondents live. Their friend may die, and may be succeeded by a representative of a very different character. If there is any particular objection that did not occur to me on this part of the Constitution, gentlemen will mention it; and I hope when this article is examined, it will be found to contain nothing but what is proper to be annexed to the general government. The next clause, so far as it gives original jurisdiction in cases affecting ambassadors, I apprehend is perfectly unexceptionable.
It was thought proper to give the citizens of foreign States full opportunity of obtaining justice in the general courts, and this they have by its appellate jurisdiction; therefore, in order to restore credit with those foreign States, that part of the article is necessary. I believe the alteration that will take place in their minds, when they learn the operation of this clause, will be a great and important advantage to our country, nor is it anything but justice; they ought to have the same security against the State laws that may be made, that the citizens have; because regulations ought to be equally just in the one case as in the other. Further, it is necessary in order to preserve peace with foreign nations. Let us suppose the case, that a wicked law is made in some one of the States, enabling a debtor to pay his creditor with the fourth, fifth, or sixth part of the real value of the debt, and this creditor, a foreignor, complains to his prince or sovereign, of the injustice that has been done him: What can that prince or sovereign do? Bound by inclination as well as duty to redress the wrong his subject sustains from the hand of perfidy, he cannot apply to the particular guilty State, because he knows that by the articles of confederation, it is declared that no State shall enter into treaties. He must therefore apply to the United States: The United States must be accountable: “My subject has received a flagrant injury; do me justice, or I will do myself justice.” If the United States are answerable for the injury, ought they not to possess the means of compelling the faulty State to repair it ? They ought, and this is what is done here. For now, if complaint is made in consequence of such injustice, Congress can answer, “Why did not your subject apply to the general court, where the unequal and partial laws of a particular State would have had no force?”
In two cases the Supreme Court has original jurisdiction; that affecting ambassadors, and when a State shall be a party. It is true, it has appellate jurisdiction in more, but it will have it under such restrictions as the Congress shall ordain. I believe then any gentleman, possessed of experience or knowledge on this subject, will agree that it was impossible to go further with any safety or propriety, and that it was best left in the manner in which it now stands.
“In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact.” The jurisdiction as to fact, may be thought improper; but those possessed of information on this head, see that it is necessary. We find it essentially necessary from the ample experience we have had in the courts of admiralty with regard to captures. Those gentlemen, who during the late war, had their vessels retaken, know well what a poor chance they would have had, when those vessels were taken into other States and tried by juries, and in what a situation they would have been, if the court of appeals had not been possessed of authority to reconsider and set aside the verdict of those juries. Attempts were made by some of the States to destroy this power, but it has been confirmed in every instance.
There are other cases in which it will be necessary; and will not Congress better regulate them as they rise from time to time, than could have been done by the convention? Besides, if the regulations shall be attended with inconvenience, the Congress can alter them as soon as discovered. But any thing done in convention must remain unalterable, but by the power of the citizens of the United States at large.
I think these reasons will show, that the powers given to the Supreme Court, are not only safe, but constitute a wise and valuable part of this system.
Saturday, December 8th.
The whole of this day was taken up with a debate on the failure of the Constitution to provide for trial by jury in civil cases. Twice in the course of it the members came to personalities, and once almost to blows.
The first occurred in the course of an argument to prove the dissolution of the trial by jury, if the proposed system was adopted, and the consequent sacrifice of the liberties of the people, Mr. Findley observed, that when the trial by jury which was known in Sweden so late as the middle of the last century, fell into disuse, the commons of that nation lost their freedom, and a tyrannical aristocracy prevailed. Mr. Wilson and Mr. M’ Kean interrupted Mr. Findley, and called warmly for his authority to prove that the trial by jury existed in Sweden, Mr. Wilson declaring that he had never met with such an idea in the course of his reading; and Mr. M’ Kean asserting, that the trial by jury was never known in any other country than England, and the governments descended from that kingdom. Mr. Findley answered, that he did not at that moment recollect his authority, but having formerly read histories of Sweden, he had received and retained the opinion which he now advanced, and would on a future occasion perhaps, refer immediately to the book. Accordingly, on Monday afternoon, he produced the Modern Universal History, and the 3d volume of Blackstone’s Commentaries, which incontrovertibly established his position. Having read his authorities, he concluded in the following manner: “I am not accustomed, Mr. President, to have my word disputed in public bodies, upon the statement of a fact; but in this convention it has already occurred more than once. It is now evident however, that I was contradicted on this subject improperly and unjustly, by the learned Chief Justice and Counsellor from the city. That the account given in the Universal History should escape the recollection or observation of the best informed man, is not extraordinary, but this I will observe, that if my son had been at the study of the law for six months, and was not acquainted with the passage in Blackstone, I should be justified in whipping him. But the contradiction coming from the quarter known to this Convention, I am at a loss whether to ascribe it to the want of veracity, or the ignorance of the learned members.” On Tuesday morning Mr. Wilson again adverted to the subject in the following manner. “I will, Mr. President, take some notice of a circumstance, which for want of something more important, has made considerable noise. I mean what respects the assertion of the member from Westmoreland, that trials by jury were known in Sweden. I confess, Sir, when I heard that assertion, it struck me – as new, and contrary to my idea of the fact, and therefore, in as decent terms as I could, I asked for the honorable member’s authority: the book in which it is found convinces me I must before have read it, but I do not pretend to remember everything I read. This remark is made more for the sake of my colleague, who supported my opinion, than for my own. But I will add, Sir, that those whose stock of knowledge is limited to a few items, may easily remember and refer to them; but many things may be overlooked and forgotten in a magazine of literature. It may therefore with propriety be said by my honorable colleague, as it was formerly said by Sir John Maynard to a petulant student, who reproached him with an ignorance of a trifling point, “Young man, I have forgotten more law than ever you learned.” 43
Hardly had this incident passed away when the Anti-federal party, put into high spirits by the arguments of Findley, Smilie and Whitehill, on the question of trial by jury, began to call loudly for answers from the friends of the constitution. What followed is thus reported in the Packet.
On Saturday last a very warm altercation passed in the convention, of which we submit to our readers the following impartial statement.
Mr. M’Kean, rising in consequence of the repeated call of the opposition for an answer to their arguments, observed that the observations and objections were so often reiterated, that most of them had already been replied to, and in his opinion, all the objections which had been made to the proposed plan, might have been delivered in the space of two hours; so he concluded, that the excess of time had been consumed in trifling and unnecessary debate. In reply to these observations, Mr. Smilie remarked, that the honorable gentleman had treated the opposition with contempt; and with a magisterial air had condemned their arguments. He was about to proceed in his animadversion upon the conduct of the majority, who presumed thus, he added, upon their numbers, when several members started up, but at length Mr.Chambers claimed the attention of the president: He began a speech of some length with terming Mr. Smilie’s language indecent, because he said it alluded to Mr. M’Kean as a judge. He then proceeded with great heat to reprobate the behavior of the three gentlemen, who managed the arguments against the proposed system, and declared that they had abused the indulgence which the other side of the House had granted to them, in consenting to hear all their reasons. He next animadverted upon the characters of those who composed the opposition, and loudly asked, where had they been found in the day of danger? Thence drawing a contrast between them and the representatives of Pennsylvania in the late Federal Convention, who were, he remarked, men of as great talents and patriotism, as good generals and statesmen, as any that had appeared in the businesss of the revolution. From this ground he took an opportunity of saying something about those Englishmen who had arrived in this country since the peace, and who had presumed to judge for themselves respecting the politics of Pennsylvania. He referred to Mr. Findley’s having no more than two votes as a delegate to the Federal Convention, in order to show the insignificance of his character, and the wisdom of Pennsylvania, which would not admit of his being elected on that occasion. He then adverted to the character of Mr. M’Kean, which he asserted was superior to all attacks, and concluded with declaring that everything which had been offered by the opposition was, in his judgment,, trifling and unnecessary. When Mr. Chambers had finished, Mr. Smilie appealed to the candor of the convention, whether he had used a single word which could be deemed indecent, and which was not fairly justified by the conduct to which he had alluded. He feelingly exclaimed that he was pleading for the interests of his country, and that no character should influence, and no violence overawe his proceedings. For, he not only claimed the free exercise of speech as a right, but he would exercise it as a duty. Mr. Findley followed, promising that he should take very little notice of the speech delivered by Mr. Chambers, as indeed he had never found occasion to take much notice of anything that dropped from that quarter. He would observe, however, that the characteristic of the conduct of the honorable member in public bodies was to discourse without reason, and to talk without argument. Here a considerable cry of order arose, and Mr. Findley said he would only add, that he always wished to avoid an investigation of characters, but at least he would take care never to engage on that subject but with a competent judge. During some disturbance in the House, Mr. Chambers retorted, that he had a perfect contempt both for Mr. Findley’s arguments and person, and Mr. Findley closed the altercation with declaring, that he saw no reason for dispute, since he and Mr. Chambers were in that respect so perfectly agreed. Mr. Macpherson stated to the chair the impropriety of such proceedings, and observed, that the member from Fayette had not satisfactorily shown in what manner the member from the city (Mr. M’Kean) had spoken indecent language, to justify the retort that had been made. Mr. Findley then remarked, that when a member undertook personally to dictate to the convention, he was an object of personal animadversion; for it was only by motion and resolve of the whole body, that their proceedings were to be governed.
Mr. Smilie said, he had in his opinion satisfactorily shown the ground upon which he had spoken, for he had referred to the recollection of the convention that Mr. M’Kean treated the arguments of the opposition as trifling and contemptible, and this with a magisterial air, which was all the retort he had made. To this Mr. Findley subjoined, that he did not rise to argue upon the question, but to claim what was just and right; he therefore referred it to the President to determine, whether he or his coadjutors had transgressed any of the established rules of the convention? Upon this the President said, it was true that no positive rule had been transgressed, but he could not avoid considering Mr. Smilie’s language highly improper. On this there was an unanimous cry of adjourn, which at last put a stop to the altercation. 44
Monday, December l0th.
As soon as Mr. Findley had cited his authorities in support of his statement regarding trial by jury in Sweden, a number of memorials were on Monday last presented to the convention from the inhabitants of the county of Philadelphia, stating the advantages that county enjoys, and requesting it might be offered as the seat of Federal Government, in which the exclusive jurisdiction of Congress may be exercised. This done, Mr. M’Kean took the floor and replied at length to the objectors to the Constitution, having previously given notice that he should on Wednesday recur to his motion for the adoption of the proposed plan, and remarked that the State of Delaware had already entered into that resolution, to which Mr. Smilie replied, that the State of Delaware had indeed reaped the honor of having first surrendered the liberties of the people to the new system of government. 45
The speech of Mr. M’Kean is summed up in the Packetas follows:
On Monday (10th) afternoon, Mr. M’Kean entered into an elaborate investigation of the leading objections made to the proposed constitution, and having ably defended it in all its parts, he concluded emphatically, that having served a routine in government, in the legislative, executive and judicial departments, he saw nothing in the system under consideration which his judgment could determine to be the object of terror or apprehension; but he anticipated from its adoption what had been his constant wishpermanency in the government, and stability in the laws.
As soon as Mr. M’Kean had closed his speech, a loud and general tribute of applause was expressed by the citizens in the gallery; which gave occasion to the following philippic from Mr. Smilie. “Mr. President, I confess that hitherto I have persuaded myself that the opposition had the best of the argument on the present important question; but I have found myself mistaken, for the gentlemen on the other side have indeed an argument which surpasses and supersedes all others,a party in the gallery prepared to clap and huzza in affirmance of their speeches. But, Sir, let it be remembered that this is not the voice of the people of Pennsylvania; for, were I convinced of that, I should consider it as a conclusive approbation of the proposed system, and give a ready acquiescence. No, Sir, this is not the voice of the people of Pennsylvania; and were this convention assembled at another place, the sound would be of a different nature, for the sentiments of the citizens are different indeed. Even there however it would pain me, were I to see the majority of this body treated with such gross insult and disrespect by my friends, as the minority now experience from theirs. In short, Mr. President, this is not the mode which will prevail on the citizens of Pennsylvania to adopt the proposed plan, let the decision here be what it may; and I will add, that such conduct, nay were the gallery filled with bayonets, such appearance of violence would not intimidate me, or those who act with me, in the conscientious discharge of a public duty.” When Mr. Smilie had finished, Mr. M’Kean remarked that the worthy gentleman seemed mighty angry, merely because somebody was pleased.
Mr. M’Kean said, in the course of his speech on Monday, that the apprehensions of the opposition respecting the new plan, amounted to this, that if the sky falls, we shall catch larks; if the rivers run dry, we shall catch eels: and he compared their arguments to a sound, but then it was a mere sound, like the working of small beer.[A better report has been preserved by Lloyd, who in his published debates, declared it was delivered on December 11th. The newspapers, however, and Mr. Wilson's notes where the whole speech is carefully summarized, prove it was delivered on December loth.]
Mr. M’Kean. 46 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 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 ensure responsibility to their constituents.
Second. That one representative for thirty thousand persons is too few.
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.
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 officer 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.
That 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 one 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 may be increased, and the judge may hold other offices of a lucrative nature, and his judgment 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 ensure 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 are 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 are 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 despotismand, like an individual, they are subject to caprice, and act as party spirit or spleen dictates; hence that instability to our laws, which is the bane of republican governments. The framers of this constitution wisely divided the legislative department between 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, 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 behooves 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 the 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 anything, 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.
There will be, sir, sixty-five in the House of Representatives and twenty-six in the Senate, in all ninety-one, who, together with the President, are to make laws in the several particular matters entrusted 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 last 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 mend 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 recess; the commissions to expire at the end of the next sessions.
As to 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 bias 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 is 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 ensure 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 entrust these particulars to the representatives of the United States, with as much safety as to those of the 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 would 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 defenseless amidst conflicting nations? Wars are inevitable, but war cannot be declared without the consent of the immediate representatives of the people; there 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 that 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 everything 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 cases 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 officer 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 them 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 con-sequence 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 an 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 judges 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 purchase 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 Court 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 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 would form no one that would have suited each of the United States. It has been a subject of amazement to me 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 writ 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 conventa, 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.47
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 immaterialthe thing unites the several States, and makes them like one in particular instances and for particular purposes, which 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, tranquillity 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 them.
Many parts of this constitution have been wrested and tortured, in order to make way for shadowy 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 generatio alteriusthe refutation of an argument begets 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 conviction from comparing the arguments on both sides, that the not doing it is liable to more inconvenience and danger than the doing it.
I. 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.
II. You will settle, establish and firmly perpetuate our independence, by destroying the vain hopes of all its enemies, both at home and abroad.
III. 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.
IV. It will have a tendency to break our parties and divisions, and by that means, lay a firm and solid foundation for the future tranquility and happiness of the United States in general, and of this State in particular.
V. It will invigorate your commerce, and encourage ship-building.
VI. 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 office, 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.
Tuesday, December 11th.[Mr. Wilson occupied the entire day with his reply to the objections made to the constitution. Says the Packet.]
On Tuesday morning, Mr. Wilson entered into a general answer of all the objections urged by the opposition, but, being fatigued, the conclusion of his speech was postponed till the afternoon. The substance of this, and of the several speeches of the members on both sides, will be given in the regular course of the debates. 48[Lloyd's report of the speech is this:] 49
Tuesday, December 11th.
Mr. Wilson. Three weeks have now elapsed since this convention met. Some of the delegates attended on Tuesday, the loth of November, a great majority within a day or two afterwards, and all but one on the fourth 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 toward a conclusion. Perhaps our debates have already continued as long, nay longer than is sufficient for any 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 those objections oncewe 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 labors 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 debateof 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. Sniffle) 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 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 by 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 themwell may we exclaimIll 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 you 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 the 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 listen, with 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 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; their State sovereignties wish to be represented! But far other were the ideas of this 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, and 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 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; amendments hence 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 an one as was not expected by the legistatures 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 sufficent 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 tyrann ? 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 was 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 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 governments to the extent of our country. But I am sure that our interests as citizens, as States and as a nation, depend essentially upon an 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 is 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 recommend; they 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 defense 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 the Alleghany Mountain? 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 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, mere likely to be productive of that good, which ought to be our constant aim.
The power 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 gentlemen in opposition (as indeed we have been from the beginning of the debates in this convention, to the conclusion of 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 definitions, 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 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 consolidating 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 consolidating 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 State 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 government; it will insure peace and stability to them; their strength will increase with its strength, their growth will extend with its growth.
Indeed, narrow minds, and some such there are in every governmentnarrow minds, and intriguing spiritswill be active in sowing dissentions and promoting discord between them. But those whose understandings 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 in 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 appoint 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 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 a 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 diplomatique 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 the powers at the distance of three thousand miles. A long series of negotiations 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 influence 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 treaties the States are immediately represented, and the people mediately represented; two of the constituent parts of the 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 thing, the 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 agreeble 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.” These objections come with an uncommon degree of impropriety, from those who would refer us back to the articles of confederation. For under those 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 Congress, a 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 the States ought to be represented according to their importance; but in this system there is 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 or evil.
It is repeated again and again, by the honorable gentlemen, “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 my 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 this, 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 some 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 argument 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 independent 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 to 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 elections, 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 afterward was he to become inelegible?
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 thatcabal, intrigue, corruptionevery 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 and intrigue; and when the government shall be organized, proper care will undoubtedly be taken to counteract influence even of that naturethe 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 milita 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 expressions of contempt.
There is another power of no small magnitude, entrusted to this officer: ” He shall take care that the laws be faithfully executed.”
I apprehend, that in the administration of this government, 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 exercisedwe 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 presencethe 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 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 of 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 not 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 such 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 further, 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 proofs 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 I 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 excellence is 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 court of appeals; but what would be the consequences 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 natural, 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, these 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 excellencies that entitle it to a superiority over any other mode, in cases to which it is applicable.
When 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 shewn 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 causes, 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 State 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 arose. Now it is easy to see, that in many instances, this would be very improper and very partial; for beside 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 dependents. Would a trial by jury in such a case ensure 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 done, to 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 Congress50 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&39;s courts of record, is by writ of error to some superior “court of appeal”51. 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 the 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 burthensome 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 enquiry 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, was the army kept up without the concurrence of the representatives of the people. Sir, we are not in the millennium. Wars may happenand 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 purpose for which it is raised. On a particular occasion 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 fanned by the correspondents of some 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 restrained 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 forbearing 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 inform you, that men without an 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 musquet, 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 Prance upon Massachusetts Bay, but was given up on reading the militia law of that 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 the best 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. Sinilie): “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 those powers, is one of the improvements with which the 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 reason 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 nien 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 many, elected 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 everything 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 in the executive department. By appointing a senate, the members of which are elected for six years, yet by a rotation already taken notice of they are 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 governments, a chain of connection with the people.
Such, Sir, is the nature of this system of government; but the important question at length presents itself to our view, Shall 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 consequences? 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 warves 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 peace: an mra which they might have expected would have furnished 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 furtheris 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 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 an expectation would be illusory. If a better could be obtained at a future time, is there anything essentially wrong in this? I go further: is there anything 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 anything to procure us dignity, or to preserve peace and tranquility? 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 treatybecause 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 lay 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 an hostile army on our unprotected shores? Who will guarantee 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 will be considered as such by every nation in the world. We will regain the confidence of our own 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 noneour 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 now know. The French, indeed, have made laudable attempts toward establishing an universal language; but beyond the boundaries of Prance, 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 tranquility to the governments of the different States. They will not be exposed to the danger of competition on questions of territory, or any other that have heretofore disturbed them. A tribunal is here founded to decide, justly and quietly, any interfering claim; and now is accomplished, what the great mind of Henry the IV. of France had in contemplation, a 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 tinder 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 countrythe 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 advantage from foreign nations. This, in our sitution, 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. Neckar 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 great 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 felicity: 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 shewing that when lost 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 brave and enlightened of other nations. The advantages resulting from this system will not be confined to the United States; it will draw from Europe, many worthy characters, who pant for the enjoyment of freedom. It will induce princes, in order to preserve their subject, to restore to them a portion of that liberty of which they have for so many ages been deprived. It will be subservient to the great designs of providence, with regard to this globe; the multiplication of mankind, their improvement in knowledge, and their advancement in happiness.
Wednesday, December 12, 1787.[With the speeches of Wilson and M'Kean the report of Lloyd ceases. Of the proceedings on the 12th he makes no mention. The newspapers then are the only source of information, and of these the Packet is the fullest.]
On Wednesday Mr. Findley in the course of an eloquent and argumentative speech, suddenly introduced the following observation: “Mr. President, I have observed a person who has introduced himself among the members of this convention, laughing for some time at everything I have said. This conduct does not, Sir, proceed from a superiority of understanding, but from the want of a sense of decency and order. If he were a member, I should certainly call him to order; but as it is, I shall be satisfied with despising him.
“What,” said Mr. Findley, “would we have thought of Congress, if at the time that body made the requisition for an impost of five per cent., the powers and jurisdiction contained in the proposed plan had been required? It would have been thought at once imprudent and ridiculous. How great then is the revolution of our sentiments in so short a space of time!”
In the course of the desultory debate which took place immediately before the vote of adoption and ratification, Mr. M’Kean pronounced an animated eulogium on the character, information and abilities of Mr. George Mason, but concluded that the exclusion of juries in civil causes was not among the objections which had governed his conduct. On this assertion Mr. Whitehill quoted the following passage from Mr. Mason’s objections: “There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil causes, nor against the danger of standing armies in time of peace.”
On Wednesday morning Mr. Findley closed his arguments in opposition to the proposed Federal system, and in the afternoon Mr. Smilie, taking a general view of the subject, stated briefly the leading principles which influenced his vote. The important question was now called for, when Doctor Rush requested the patience of the Convention for a few minutes. He then entered into a metaphysical argument, to prove that the morals of the people had been corrupted by the imperfections of the government; and while he ascribed all our vices and distresses to the existing system, he predicted a millennium of virtue and happiness as the necessary consequence of the proposed Constitution. To illustrate the depraved state of society, he remarked, among other things, the disregard which was notorious in matters of religion, so that between the congregation and the minister scarcely any communication or respect remained; nay, the Doctor evinced that they were not bound by the ties of common honesty, on the evidence of two facts, from which it appears that several clergymen had been lately cheated by their respective flocks of the wages due for their pastoral care and instruction. Doctor Rush then proceeded to consider the origin of the proposed system, and fairly deduced it from heaven, asserting that he as much believed the hand of God was employed in this work, as that God had divided the Red Sea to give a passage to the children of Israel, or had fulminated the ten commandments from Mount Sinai ! Dilating sometime upon this new species of divine right, thus transmitted to the future governors of the Union, he made a pathetic appeal to the opposition, in which he deprecated the consequences of any further contention, and pictured the honorable and endearing effects of an unanimous vote, after the full and fair investigation which the great question had undergone. ” It is not, Sir, a majority, (continued the Doctor) however numerous and respectable, that can gratify my wishesnothing short of an unanimous vote can indeed complete my satisfaction. And, permit me to add, were that event to take place, I could not preserve the strict bounds of decorum, but, flying to the other side of this room, cordially embrace every member, who has hitherto been in opposition, as a brother and a patriot. Let us then, Sir, this night bury the hatchet, and smoke the calumet of peace! ” When Dr. Rush had concluded, Mr. Chambers remarked upon the Doctor’s wish of conciliation and unanimity, that it was an event which he neither expected nor wished for. Mr. Whitehill now rose, and having animadverted upon Dr. Rush’s metaphysical arguments, and regretted that so imperfect a work should have been ascribed to God, he presented several petitions from 750 inhabitants of Cumberland county, praying, for the reasons therein specified, that the proposed Constitution should not be adopted without amendments, and particularly, without a bill of rights. The petitions being read from the chair, Mr. M’ Kean said he was sorry at this stage of the business so improper an attempt should be made. He repeated that the duty of the Convention was circumscribed to the adoption or rejection of the proposed plan, and such had certainly been the sense of the members, when it was agreed that only one question could be taken on the important subject before us. He hoped, therefore, that the petitions would not be attended to. Mr. Whitehill then read, and offered as the ground of a motion for adjourning to some remote day the consideration of the following articles, which, he said, might either be taken collectively, as a bill of rights, or, separately, as amendments to the general form of government proposed.
- The rights of conscience shall be held inviolable, and neither the legislative, executive nor judicial powers of the United States shall have authority to alter, abrogate or infringe any part of the constitutions of the several States, which provide for the preservation of liberty in matters of religion.
- That in controversies respecting property and in suits between man and man, trial by jury shall remain as heretofore, as well in the federal courts, as in those of the several States.
- That in all capital and criminal prosecutions, a man has a right to demand the cause and nature of his accusation, as well in the federal courts, as in those of the several States; to be heard by himself or his counsel; to be confronted with the accusers and witnesses; to call for evidence in his favor, and a speedy trial, by an impartial jury of the vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
- That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.
- That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others.
- That the people have a right to the freedom of speech, of writing and of publishing their sentiments; therefore, the freedom of the press shall not be restrained by any law of the United States.
- That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.
- The inhabitants of the several States shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.
- That no law shall be passed to restrain the legislatures of the several States from enacting laws for imposing taxes, except imposts and duties on goods exported and imported, and that no taxes, except imposts and duties upon goods imported and exported and postage on letters, shall be levied by the authority of Congress.
- That elections shall remain free, that the house of representatives be properly increased in number, and that the several States shall have power to regulate the elections for senators and representatives, without being controlled either directly or indirectly by any interference on the part of Congress, and that elections of representatives be annual.
- That the power of organizing, arming and disciplining the militia, (the manner of disciplining the militia to be prescribed by Congress) remain with the individual States, and that Congress shall not have authority to call or march any of the militia out of their own State, without the consent of such State, and for such length of time only as such State shall agree.
- That the legislative, executive, and judicial powers be kept separate, and to this end, that a constitutional council be appointed to advise and assist the President, who shall be responsible for the advice they give (hereby, the senators would be relieved from almost constant attendance); and also that the judges be made completely independent.
- That no treaties which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed or made con-formable to such treaty, neither shall any treaties be valid which are contradictory to the constitution of the United States, or the constitutions of the individual States.
- That the judiciary power of the United States shall be confined to cases affecting ambassadors, other public ministers and consuls, to cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party, to controversies between two or more Statesbetween a State and citizens of different Statesbetween citizens claiming lands under grants of different States, and between a State or the citizens thereof and foreign States, and in criminal cases, to such only as are expressly enumerated in the constitution, and that the United States in Congress assembled, shall not have power to enact laws, which shall alter the laws of descents and distributions of the effects of deceased persons, the title of lands or goods, or the regulation of contracts in the individual States.
- That the sovereignty, freedom and independency of the several States shall be retained, and every power, jurisdiction and right which is not by this constitution expressly delegated to the United States in Congress assembled.
Some confusion arose on these articles being presented to the chair, objections were made by the majority to their being officially read, and, at last, Mr. Wilson desired that the intended motion might be reduced to writing, in order to ascertain its nature and extent. Accordingly, Mr. Whitehill drew it up, and it was read from the chair in the following manner: “That this Convention do adjourn to the day of next, then to meet in the city of Philadelphia, in order that the propositions for amending the proposed constitution may be considered by the people of this State; that we may have an opportunity of knowing what amendments or alterations may be proposed by other States, and that these propositions, together with such other amendments as may be proposed by other States, may be offered to Congress, and taken into consideration by the United States, before the proposed constitution shall be finally ratified.”
As soon as the motion was read, Mr. Wilson said he rejoiced that it was by this means ascertained upon what principles the opposition proceeded, for, he added, the evident operation of such a motion would be to exclude the people from the government and to prevent the adoption of this or any other plan of confederation. For this reason he was happy to find the motion reduced to certainty, that it would appear upon the journals, as an evidence of the motives that prevailed with those who framed and supported it, and that its merited rejection would permanently announce the sentiments of the majority respecting so odious an attempt. Mr. Smilie followed Mr. Wilson, declaring that he too rejoiced that the notion was reduced to a certainty, from which it might appear to their constituents that the sole object of the opposition was to consult with and obtain the opinions of the people upon a subject, which they had not yet been allowed to consider. “If,” exclaimed Mr. Smilie, “those gentlemen who have affected to refer all authority to the people, and to act only for the common interest, if they are sincere, let them embrace this last opportunity to evince that sincerity. They all know the precipitancy with which the measure has hitherto been pressed upon the State, and they must be convinced that a short delay cannot be injurious to the proposed government, if it is the wish of the people to adopt it; if it is not their wish, a short delay, which enables us to collect their real sentiments, may be the means of preventing future contention and animosity in a community, which is, or ought to be, equally dear to us.” The question being taken on the motion, there appeared for it 23, against it 46. The great and conclusive question was then taken, that “this convention do assent to and ratify the plan of federal government, agreed to and recommended by the late federal convention?” when the same division took place, and the yeas and nays being called by Mr. Smilie and Mr. Chambers, were as given in our paper of Thursday last. Yeas 46. Nays 23.
This important decision being recorded, Mr. M’ Kean moved that the convention do tomorrow proceed in a body to the Court House, there to proclaim the ratification, and that the supreme executive council be requested to make the necessary arrangements for the procession on that occasion, which motion was agreed to, and the convention adjourned till the next morning at half-past nine o’clock.
From the minutes of the convention it appears that the vote of each member was,
George Latimer, John Hubley, Benjamin Rush, Jasper Yeates, Hilary Baker, Henry Slagle, James Wilson, Thomas Campbell, Thomas M’Kean, Thomas Hartley, William Macpherson, David Grier, John Hunn, John Black, George Gray, Benjamin Pedan, Samuel Ashmead, John Arndt, Enoch Edwards, Stephen Balliet, Henry Wynkoop, Joseph Horsfield, John Barclay, David Deshler, Thomas Yardley, William Wilson, Abraham Stout, John Boyd, Thomas Bull, Thomas Scott, Anthony Wayne, John Neville, William Gibbons, John Allison, Richard Downing, Jonathan Roberts, Thomas Cheyney, John Richards, John Hannum, F.A. Muhlenberg, Stephen Chambers, James Morris, Robert Coleman, Timothy Pickering, Sebastian Graff, Benjamin Elliot. 46.
John Whitehill, William Findley, John Harris, John Bard, John Reynolds, William Todd, Robert Whitehill, James Marshall, Jonathan Hoge, James Edgar, Nicholas Lutz, Nathaniel Breading, John Ludwig, John Smilie, Abraham Lincoln, Richard Baird, John Bishop, William Brown, Joseph Hiester, Adam Orth, James Martain, Joseph Powell, John Andre Hannah. 23.
Thursday, December 13, 1787.
On Thursday, the convention being assembled, Mr. Whitehill remarked that the bill of rights, or articles of amendment, which he had the day before presented to the chair, were not inserted upon the journals, together with the resolution which referred to them. This he declared an improper omission, and desired they might be inserted. This was opposed by the majority, but as there was no motion before the convention, the president did not see how a determination could take place, though he wished to know the sense of the members upon this occasion. Mr. Smilie, in consequence of this intimation, moved for the insertion of Mr. Whitehill’s articles. Mr. Wilson continued his opposition, and called upon Mr. Smilie to reduce his motion to writing. “Indeed, sir,” observed Mr. Smilie, “I know so well that if the honorable member from the city says the articles shall not, they will not be admitted, that I am not disposed to take the useless trouble of reducing my motion to writing, and therefore I withdraw it.” Mr. Chambers exclaimed that the member from Fayette and his friends might be accustomed to the arrangement which he alluded to, but neither Mr. Wilson, nor those who agreed in sentiments with him, were to be led by a mere fiat. The form being presented by Mr. M’ Kean, who with Mr. Wilson and Mr. Yeates were appointed as a coinmittee to prepare it, it was agreed that the convention should proceed to proclaim the ratification before it was signed, which was accordingly done.52
Joined by the President and Vice-President of the State, members of Congress, the faculty of the University, the magistrates and militia officers of the city, the convention then proceeded to the Court House, where the ratification was read to a great gathering of people.
In the procession went
Constables with their Staves.
Sub-Sheriffs with their Wands.
High Sheriff and Coroner with their Wands.
Judges of the Supreme Court, and Judges of the
High Court of Errors and Appeals.
Attorney-General and Prothonotary of the
Marshal of the Admiralty.
Judge and Register of the Admiralty.
Wardens of the Port of Philadelphia.
Naval Officers, Collectors of the Customs, and
Treasurer and Comptroller-General.
Secretary of the Land Office.
Receiver-General and Surveyor-General.
Justices of the Peace.
Prothonotary of the Court of Common Pleas, and
Clerk of the Court of Quarter Sessions.
Clerk of the City Court.
Master of the Rolls and Register of Wills.
Assistant Secretary of the Council.
Secretary of the Council.
His Excellency the PRESIDENT, and Honorable
the VICE PRESIDENT.
Members of the Council, two and two.
Doorkeeper of the Council.
Sergeant-at-Arms, with the Mace.
Secretary of the Convention.
Honorable the President of the Convention.
Members of the Convention, two and two.
Doorkeeper of the Convention.
Provost and Faculty of the University.
Officers of the Militia.
In the Name of the PEOPLE of PENNSYLVANIA:
BE it known unto all menThat we, the delegates of the Commonwealth of Pennsylvania, in general convention assembled, have assented to and ratified, and by these presents do, in the name and the authority of the same people, and for ourselves, assent to and ratify the foregoing constitution for the United States of America.
Done in convention the 12th day of December, in the
year 1787 and of the Independence of the United States of America the twelfth.
In witness whereof, &c.
Thirteen cannon were then fired, and the bells were rung on this joyful occasion; after this the convention returned to the State House and subscribed the two copies of the ratification.
On the return of the members to the convention, Mr. Hartley hoped that the opposition might yet be induced to sign the ratification, as a fair and honorable acquiescence in the principle that the majority should govern. To which Mr. Smilie replied, that speaking for himself, he never would allow his hand, in so gross a manner, to give the lie to his heart and tongue. Two copies of the proposed constitution were then formally ratified by the members who voted in favor of it; Mr. Harris observing, that though he had voted against it, and would still abide by that vote so far as to decline putting his signature to the ratification, yet he did now, and always should, consider himself to be bound by the sense of the majority of any public body of which he had the honor to be appointed a member. The convention then adjourned till Friday morning at half past nine o’clock.
At three o’clock they met and dined with the members of the supreme executive council, several members of Congress and a number of citizens, at Mr. Epple’s tavern; where the remainder of the day was spent in mutual congratulations upon the happy prospect of enjoying, once more, order, justice and good government in the United States. The following is the list of the toasts given on the occasion:
- The People of the United States.
- The President and Members of the late Convention of the United States.
- The President of the State of Pennsylvania.
- May the citizens of America display as much wisdom in adopting the proposed Constitution to preserve their liberties, as they have shown fortitude in defending them.
- May order and justice be the pillars of the American Temple of Liberty.
- May the agriculture, manufactures and commerce of the United States speedily flourish under the new Constitution.
- The Congress.
- The virtuous minority of Rhode Island.
- The powers of Europe in alliance with the United States.
- May the flame, kindled on the Altar of Liberty in America, lead the nations of the world to a knowledge of their rights and to the means of recovering them.
- The memory of the heroes who have sacrificed their lives in defence of the liberties of America.
- May America diffuse over Europe a greater portion of political light than she has borrowed from her.
- Peace and free governments to all the nations in the world.
Friday, December 14, 1787.
Friday the Convention appointed a committee to consider and report upon the overtures which have been made by the county of Philadelphia, and likewise by part of the county of Philadelphia, Montgomery and Bucks united, respecting the cession of 10 miles square to the future Congress of the United States. This the opposition to the federal system deemed a matter upon which the Convention could not, and ought not to act; for, they represented it as a violation of the constitution of the State, which still existed, and which while in existence, it was the duty of every citizen to support. Upon this principle they refused either to vote for or against the appointment of a committee, which produced a temporary embarrassment, as the majority were not at first agreed in the number, but ultimately concurred in making it nine. The Convention likewise appointed a committee to receive and state an account of their expenses, &c., and then adjourned till Saturday at half past nine o’clock.
Saturday December 15, 1787.
The Convention met pursuant to adjournment.
The committee appointed to consider the motion of Mr. Wilson relative to a cession, to the United States, of a district for the seat of the federal government, report the following resolution:
“That when the Constitution proposed by the late general Convention shall have been organized, this commonwealth will cede to the Congress of the United States the jurisdiction over any place in Pennsylvania, not exceeding ten miles square, which with the consent of the inhabitants, the Congress may choose for the seat of the government of the United States, excepting only the city of Philadelphia, the district of Southwark, and that part of the Northern-Liberties included within a line running parallel with Vine street, at the distance of one mile northward thereof, from the river Schuylkill to the southern side of the main branch of Cohocksink creek, thence down the said creek to its junction with the river Delaware. But the marsh land and so much of the adjoining bank, on the same side of the said creek, as shall be necessary for the erecting any dams and works to command the water thereof, are excluded from this exception.
“Resolved, That it is the opinion of this Convention, that until the Congress shall have made their election of a district, for the place of their permanent residence, and provided buildings for their accommodation, they have the use of such of the public buildings within the city of Philadelphia, or any other part of this State, as they shall find necessary.
“Unanimously Resolved, That the thanks of this Convention be presented to the President, for his able and faithful discharge of the duties of the Chair.”
To which the President answered:
“I feel with the utmost gratitude the honor you have just now done me, and I shall always esteem your approbation as my highest reward for performing my duty to you, or rendering any services to my fellow citizens.”
The Convention then adjourned sine die.
1.From the Pennsylvania Packet, Nov. 27.Return to text
2.The minutes of the convention give but a meagre account of its proceedings, nor is there any complete report of the debates, that took place, known to exist. At first the Philadelphia papers furnished short accounts of the proceedings, but before long they reprinted from the Pennsylvania Herald what appears to have been a tolerably full report. Unfortunately this report was suspended after bringing the debates down to November 3oth, and if the statement of “Centinel,” is accepted it was suppressed through the efforts of the Federalists. There is but little doubt that it was prepared by Alexander James Dallas, then a young man engaged by William Spotswood, proprietor of the Pennsylvania Herald and Columbian Magazine, to edit those publications.
Thomas Lloyd, a short-hand writer of some note, proposed to take down the debates and print them as soon as the convention should adjourn. But one volume of his work however appeared, and that contains little else than the speeches of Wilson and a few of those of M’ Kean. The language of some of these differs from the reports made by Dallas, and has evidently been subjected to revision. Nevertheless this volume was used by Elliot, and contains all he publishes as the Debates in the Pennsylvania Convention. To give as full an account as is now possible of what was said in the Convention, the Reports of Dallas, and what else appeared in the papers of the day, have been carefully arranged, and the omissions from Lloyd’s volume in part supplied, indicating in each case the authority drawn from.Return to text
3. From the Pennsylvania Herald, Nov. 27. Same in Independent Gazetteer, Nov. 27.Return to text
4. From the Pennsylvania Herald, Nov. 24. Same in the Independent Gazetteer, Nov 27.Return to text
5. From the Pennsylvania Packet, Nov. 27, 1787.Return to text
6. From the Pennsylvania Herald, Nov. 24. Same in Independent Gazetteer, Nov. 27.Return to text
7. From the Pennsylvania Packet, Nov. 27.Return to text
8. From the Pennsylvania Herald, Nov. 24, 1787. Same in Independent Gazetteer, Nov. 27.Return to text
9. This version of Wilson’s speech on M’Kean’s motion is taken from a pamphlet entitled “The Substance of a Speech delivered by James Wilson, Esq. Explanatory of the General Principles of the Proposed Federal Constitution Upon Motion made by the Honorable Thomas M’Kean, in the Convention of the State of Pennsylvania. On Saturday, the 24th of November, 1787. Philadelphia. Printed by Thomas Bradford, in Front Street, four doors below the Coffee House. MDCCLXXXVII.”
It appears to have been prepared by Dallas, as the language attributed to M’Kean is almost exactly the same as that given in his report in the Pennsylvania Herald. The publication of the speech excited the jealousy of Lloyd, who appended to his proposals to print the Debates the following :
Several of the editor’s friends having supposed a pamphlet printed by Thomas Bradford, entitled, “The Substance of a Speech delivered by James Wilson, Esq., &c.” was written by him, he conceives himself under the necessity of counteracting any impression such an opinion may have made upon the public, by assuring them he was not the writer, but pledges himself to give that address in the forementioned volume, without mutilation or misrepresentation.
December 3, 1787.
In Lloyd’s Debates the speech is erroneously given under date of Nov. 26th, and is so copied by Elliot. The language differs, but the argument is the same. Notwithstanding Lloyd’s card, we believe the pamphlet version to be the nearer correct. The language used in it and the style are more those of a speech, and as it was in the hands of the people long before Lloyd’s volumes, and at a critical time, it is given in preference. In Dallas’ Report, printed in the Herald of Nov. 28th, there is only an abstract of Wilson’s speech. Return to text
10. From the Pennsylvania Herald, Nov. 28, 1787.Return to text
11. From the Pennsylvania Herals, Nov. 28, 1787. Same in Independent Gazetteer, Nov. 29. Return to text
12. From Independent Gazetteer, Nov 29, 1787.Return to text
13. The following account is from the Pennsylvania Packet, Nov. 27, 1787Return to text
14. From the Pennsylvania Herald, Dec. 1st, 1787.Return to text
15. From the Pennsylvania Herald, Dec. 5th, 1787Return to text
16. From the Pennsylvania Herald, Dec. 8th, 1787. Return to text
17. From the Pennsylvania Herald, Dec. 12th, 1787.Return to text
18. Mr. Wilson.Return to text
19. From the Pennsylvania Herald, Dec. 15th, 1787.Return to text
20. From the Pennsylvania Herald, Dec. 19th 1787.Return to text
21. From the Pennsylvania Herald, Dec. 26, 1787.Return to text
22. From the Pennsylvania Packet, December 3d, 1787.Return to text
23. From the Pennsylvania Herald, December 29, 1787.Return to text
24. From Lloyd’s Debates.Return to text
25. From the Pennsylvania Herald, January 2, 1788.Return to text
26. From the Pennsylvania Herald, January 5, 1788.Return to text
27. From the Pennsylvania Packet, Dec. 3, 1787.Return to text
28. From the Pennsylvania Packet, Dec. 5th, 1787.Return to text
29. From the Pennsylvania Packet, Dec. 6th.Return to text
30. From Lloyd’s Debates.Return to text
31. From the Pennsylvania Packet, Dec. 6th.Return to text
32. From Lloyd’s Debates.Return to text
33. From Lloyd Debates.Return to text
34. Strabo, lib. 14.Return to text
35. Strabo, lib. 14.Return to text
36. Ibid.Return to text
37. Neckar on Finance, vol. I, p. 308.Return to text
38. Vol. i., p. 329.Return to text
39 , 40, 41.Manuscript notes of James Wilson.Return to text
42. Lloyd’s Debates.Return to text
43. Pennsylvania Packet, Dec. 13, 1787.Return to text
44. Pennsylvania Packet, Dec. 13, 1787.Return to text
45. Pennsylvania Packet, Dec. 13, 1787.Return to text
46. Lloyd’s Debates.Return to text
47. Locke on Civil Government, vol. 2, b. 2m chap. ii, sect. 141, and in the xiiith chap. sect. 152.Return to text
48. Pennsylvania Packet, Dec. 13, 1787.Return to text
49. Lloyd’s Debates.Return to text
50. Journals of Congress, March 6, 1779.Return to text
51. III. Blackstone, 406.Return to text
52. Pennsylvania Packet, December 14th.Return to text