The Address and Reasons of Dissent of the Minority
of the Convention of the State of Pennsylvania to their Constituents.
It was not until after the termination of the late glorious contest, which made the
people of the United States an independent nation, that any defect was discovered in
the present confederation.
It was formed by some of the ablest patriots in America.
It carried us successfully through the war; and the virtue and patriotism of the people,
with their disposition to promote the common cause, supplied the want of power in Congress.
The requisition of Congress for the five percent impost was made before the peace, so early
as the first of February 1781, but was prevented taking effect by the refusal of one state;
yet it is probable every state in the union would have agreed to this measure at that
period had it not been for the extravagant terms in which it was demanded.
The requisition was new molded in the year 1783, and accompanied with an additional demand
of certain supplementary funds for 25 years.
Peace had now taken place, and the United States found themselves laboring under a considerable
foreign and domestic debt, incurred during the war.
The requisition of 1783 was commensurate with the interest of the debt, as it was then calculated;
but it has been more accurately ascertained since that time.
The domestic debt has been found to fall several millions of dollars short of the calculation,
and it has lately been considerably diminished by large sales of the western lands.
The states have been called on by Congress annually for supplies until the general system
of finance proposed in 1783 should take place.
It was at this time that the want of an efficient federal government was first complained of,
and that the powers vested in Congress were found to be inadequate to the procuring of
the benefits that should result from the union.
The impost was granted by most of the states, but many refused the supplementary funds;
the annual requisitions were set at naught by some of the states, while others complied
with them by legislative acts, but were tardy in their payments, and Congress found themselves
incapable of complying with their engagements, and supporting the federal government.
It was found that our national character was sinking in the opinion of foreign nations.
The Congress could make treaties of commerce, but could not enforce the observance of them.
We were suffering from the restrictions of foreign nations, who had shackled our commerce,
while we were unable to retaliate; and all now agreed that it would be advantageous to
the union to enlarge the powers of Congress; that they should be enabled in the amplest
manner to regulate commerce, and to lay and collect duties on the imports throughout the
United States.
With this view a convention was first proposed by Virginia, and finally recommended by Congress
for the different states to appoint deputies to meet in convention, "for the purposes
of revising and amending the present articles of confederation, so as to make them adequate
to the exigencies of the union."
This recommendation the legislatures of twelve states complied with so hastily as not to
consult their constituents on the subject; and though the different legislatures had
no authority from their constituents for the purpose, they probably apprehended the necessity
would justify the measure; and none of them extended their ideas at that time further
than "revising and amending the present articles of confederation."
Pennsylvania by the act appointing deputies expressly confined their powers to this object;
and though it is probable that some of the members of the assembly of this state had
at that time in contemplation to annihilate the present confederation, as well as the
constitution of Pennsylvania, yet the plan was not sufficiently matured to communicate
it to the public.
The majority of the legislature of this commonwealth were at that time under the influence of the
members from the city of Philadelphia.
They agreed that the deputies sent by them to convention should have no compensation
for their services, which determination was calculated to prevent the election of any
member who resided at a distance from the city.
It was in vain for the minority to attempt electing delegates to the convention, who
understood the circumstances, and the feelings of the people, and had a common interest with
them.
They found a disposition in the leaders of the majority of the house to choose themselves
and some of their dependents.
The minority attempted to prevent this by agreeing to vote for some of the leading members,
who they knew had influence enough to be appointed at any rate, in hopes of carrying with them
some respectable citizens of Philadelphia, in whose principles and integrity they could
have more confidence; but even in this they were disappointed, except in one member [ Jared
Ingersoll] : the eighth member [Benjamin Franklin] was added at a subsequent session of the assembly.
The Continental convention met in the city of Philadelphia at the time appointed.
It was composed of some men of excellent characters; of others who were more remarkable for their
ambition and cunning, than their patriotism; and of some who had been opponents to the
independence of the United States.
The delegates from Pennsylvania were, six of them, uniform and decided opponents to
the constitution of this commonwealth.
The convention sat upwards of four months.
The doors were kept shut, and the members brought under the most solemn engagements
of secrecy.
Some of those who opposed their going so far beyond their powers retired, hopeless, from
the convention, others had the firmness to refuse signing the plan altogether; and many
who did sign it, did it not as a system they wholly approved, but as the best that could
be then obtained, and notwithstanding the time spent on this subject, it is agreed on
all hands to be a work of haste and accommodation.
Whilst the gilded chains were forging in the secret conclave, the meaner instruments of
despotism without were busily employed in alarming the fears of the people with dangers
which did not exist, and exciting their hopes of greater advantages from the expected plan
than even the best government on earth could produce.
The proposed plan had not many hours issued forth from the womb of suspicious secrecy,
until such as were prepared for the purpose were carrying about petitions for people to
sign, signifying their approbation of the system, and requesting the legislature to
call a convention.
While every measure was taken to intimidate the people against opposing it, the public
papers teemed with the most violent threats against those who should dare to think for
themselves, and tar and feathers were liberally promised to all those who would not immediately
join in supporting the proposed government be it what it would.
Under such circumstances petitions in favor of calling a convention were signed by great
numbers in and about the city, before they had leisure to read and examine the system,
many of whom, now they are better acquainted with it, and have had time to investigate
its principles, are heartily opposed to it.
The petitions were speedily handed into the legislature.
Affairs were in this situation when on the 28th of September last, a resolution was proposed
to the assembly by a member [George Clymer] of the house who had been also a member of
the federal convention, for calling a state convention, to be elected within ten days
for the purpose of examining and adopting the proposed constitution of the United States,
though at this time the house had not received it from Congress.
This attempt was opposed by a minority, who after offering every argument in their power
to prevent the precipitate measure, without effect, absented themselves from the house
as the only alternative left them, to prevent the measure taking place previous to their
constituents being acquainted with the business.
That violence and outrage which had been so often threatened was now practiced; some of
the members were seized the next day by a mob collected for the purpose, and forcibly
dragged to the house, and there detained by force whilst the quorum of the legislature,
so formed, completed their resolution.
We shall dwell no longer on this subject, the people of Pennsylvania have been already
acquainted therewith.
We would only further observe that every member of the legislature, previously to taking his
seat, by solemn oath or affirmation, declares, "that he will not do or consent to any act
or thing whatever that shall have a tendency to lessen or abridge their rights and privileges,
as declared in the constitution of this state."
And that constitution which they are so solemnly sworn to support cannot legally be altered
but by a recommendation of the council of censors, who alone are authorized to propose
alterations and amendments, and even these must be published at least six months, for
the consideration of the people.
The proposed system of government for the United States, if adopted, will alter and
may annihilate the constitution of Pennsylvania; and therefore the legislature had no authority
whatever to recommend the calling a convention for that purpose.
This proceeding could not be considered as binding on the people of this commonwealth.
The house was formed by violence, some of the members composing it were de-tained there
by force, which alone would have vitiated any proceedings, to which they were otherwise
competent; but had the legislature been legally formed, this business was absolutely without
their power.
In this situation of affairs were the subscribers elected members of the convention of Pennsylvania.
A convention called by a legislature in direct violation of their duty, and composed in part
of members, who were compelled to attend for that purpose, to consider of a constitution
proposed by a convention of the United States, who were not appointed for the purpose of
framing a new form of government, but whose powers were expressly confined to altering
and amending the present articles of confederation.
Therefore the members of the continental convention in proposing the plan acted as individuals,
and not as deputies from Pennsylvania.
The assembly who called the state convention acted as individuals, and not as the legislature
of Pennsylvania; nor could they or the convention chosen on their recommendation have authority
to do any act or thing, that can alter or annihilate the constitution of Pennsylvania
(both of which will be done by the new constitution) nor are their proceedings in our opinion,
at all binding on the people.
The election for members of the convention was held at so early a period and the want
of information was so great, that some of us did not know of it until after it was over,
and we have reason to believe that great numbers of the people of Pennsylvania have not yet
had an opportunity of sufficiently examining the proposed constitution.
We apprehend that no change can take place that will affect the internal government or
constitution of this commonwealth, unless a majority of the people should evidence a
wish for such a change; but on examining the number of votes given for members of the present
state convention, we find that of upwards of seventy thousand free-men who are entitled
to vote in Pennsylvania, the whole convention has been elected by about thirteen thousand
voters, and though two-thirds of the members of the convention have thought proper to ratify
the proposed constitution, yet those two-thirds were elected by the votes of only six thousand
and eight hundred freemen.
In the city of Philadelphia and some of the eastern counties, the junto that took the
lead in the business agreed to vote for none but such as would solemnly promise to adopt
the system in toto, without exercising their judgment.
In many of the counties the people did not attend the elections as they had not an opportunity
of judging of the plan.
Others did not consider themselves bound by the call of a set of men who assembled at
the state house in Philadelphia, and assumed the name of the legislature of Pennsylvania;
and some were prevented from voting by the violence of the party who were determined
at all events to force down the measure.
To such lengths did the tools of despotism carry their outrage, that in the night of
the election for members of convention, in the city of Philadelphia, several of the subscribers
(being then in the city to transact your business) were grossly abused, ill-treated and insulted
while they were quiet in their lodgings, though they did not interfere, nor had anything to
do with the said election, but, as they apprehend, because they were supposed to be adverse to
the proposed constitution, and would not tamely surrender those sacred rights, which you had
committed to their charge.
The convention met, and the same disposition was soon manifested in considering the proposed
constitution, that had been exhibited in every other stage of the business.
We were prohibited by an express vote of the convention, from taking any question on the
separate articles of the plan, and reduced to the necessity of adopting or rejecting
in toto.
Tis true the majority permitted us to debate on each article, but restrained us from proposing
amendments.
They also determined not to permit us to enter on the minutes our reasons, of dissent against
any of the articles, nor even on the final question our reasons of dissent against the
whole.
Thus situated we entered on the examination of the proposed system of government, and
found it to be such as we could not adopt, without, as we conceived, surrendering up
your dearest rights.
We offered our objections to the convention, and opposed those parts of the plan, which,
in our opinion, would be injurious to you, in the best manner we were able; and closed
our arguments by offering the following propositions to the convention.
1.
The right 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 constitution of the several states, which provide for the preservation
of liberty in matters of religion.
2.
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.
3.
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 and 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 his vicinage,
without whose unanimous consent, he cannot be found guilty, nor can he be compelled to
give evidence against himself; and that no man be deprived of his liberty, except by
the law of the land or the judgment of his peers.
4.
That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor
unusual punishments inflicted.
5.
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.
6.
That the people have a right to the freedom of speech, of writing and publishing their
sentiments, therefore, the freedom of the press shall not be restrained by any law of
the United States.
7.
That the people have a right to bear arms for the defense 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 powers.
8.
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 enclosed,
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.
9.
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 imported or exported, 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.
10.
That the house of representatives be properly increased in number; that elections shall
remain free; that the several states shall have power to regulate the elections for senators
and representatives, without being controlled either directly or indirectly by an interference
on the part of the Congress; and that elections of representatives be annual.
11.
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 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.
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.
13.
That no treaty 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 conformable
to such treaty; neither shall any treaties be valid which are in contradiction to the
constitution of the United States, or the constitutions of the several states.
14.
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 states—between a state and citizens of different states—between 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 distribution of the effects of
deceased persons, the titles of lands or goods, or the regulation of contracts in the individual
states.
After reading these propositions, we declared our willingness to agree to the plan, provided
it was so amended as to meet those propositions, or something similar to them; and finally
moved the convention to adjourn, to give the people of Pennsylvania time to consider the
subject, and determine for themselves; but these were all rejected, and the final vote
was taken, when our duty to you induced us to vote against the proposed plan, and to
decline signing the ratification of the same.
During the discussion we met with many insults, and some personal abuse; we were not even
treated with decency, during the sitting of the convention, by the persons in the gallery
of the house; however, we flatter ourselves that in contending for the preservation of
those invaluable rights you have thought proper to commit to our charge, we acted with a spirit
becoming freemen, and being desirous that you might know the principles which actuated
our conduct, and being prohibited from inserting our reasons of dissent on the minutes of the
convention, we have subjoined them for your consideration, as to you alone we are accountable.
It remains with you whether you will think those inestimable privileges, which you have
so ably contended for, should be sacrificed at the shrine of despotism, or whether you
mean to contend for them with the same spirit that has so often baffled the attempts of
an aristocratic faction, to rivet the shackles of slavery on you and your unborn posterity.
Our objections are comprised under three general heads of dissent, viz.:
We dissent, first, because it is the opinion of the most celebrated writers on government,
and confirmed by uniform experience, that a very extensive territory cannot be governed
on the principles of freedom, otherwise than by a confederation of republics, possessing
all the powers of internal government; but united in the management of their general,
and foreign concerns.
If any doubt could have been entertained of the truth of the foregoing principle, it has
been fully removed by the concession of Mr. [James] Wilson, one of majority on this question;
and who was one of the deputies in the late general convention.
In justice to him, we will give his own words; they are as follows, viz.: "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 middling 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 rose.
For, we know that, altho our constituents would cheerfully submit to the legislative
restraints of a free government, they would spurn at every attempt to shackle them with
despotic power."
And again in another part of his speech he continues.
"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 to keeping that empire
together, which in extent was far inferior to the dominion of America."
We dissent, secondly, because the powers vested in Congress by this constitution must necessarily
annihilate and absorb the legislative, executive, and judicial powers of the several states,
and produce from their ruins one consolidated government, which from the nature of things
will be an iron-handed despotism, as nothing short of the supremacy of despotic sway could
connect and govern these United States under one government.
As the truth of this position is of such decisive importance, it ought to be fully investigated,
and if it is founded to be clearly ascertained; for, should it be demonstrated, that the powers
vested by this constitution in Congress will have such an effect as necessarily to produce
one consolidated government, the question then will be reduced to this short issue,
viz.: whether satiated with the blessings of liberty; whether repenting of the folly
of so recently asserting their unalienable rights, against foreign despots at the expense
of so much blood and treasure, and such painful and arduous struggles, the people of America
are now willing to resign every privilege of freemen, and submit to the dominion of
an absolute government, that will embrace all America in one chain of despotism; or
whether they will with virtuous indignation spurn at the shackles prepared for them, and
confirm their liberties by a conduct becoming freemen.
That the new government will not be a confederacy of states, as it ought, but one consolidated
government founded upon the destruction of the several governments of the states, we
shall now show.
The powers of Congress under the new constitution are complete and unlimited over the purse
and the sword, and are perfectly independent of, and supreme over, the state governments;
whose intervention in these great points is entirely destroyed.
By virtue of their power of taxation, Congress may command the whole, or any part of the
property of the people.
They may impose what imposts upon commerce; they may impose what land taxes, poll taxes,
excises, duties on all written instruments, and duties on every other article that they
may judge proper; in short, every species of taxation, whether of an external or internal
nature is comprised in section the 8th, of Article the 1st, viz.: "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."
As there is no one article of taxation reserved to the state governments, the Congress may
monopolize every source of revenue, and thus indirectly demolish the state governments,
for without funds they could not exist.
The taxes, duties, and excises imposed by Congress may be so high as to render it impracticable
to levy further sums on the same articles; but whether this should be the case or not,
if the state governments should presume to impose taxes, duties, or excises, on the same
articles with Congress, the latter may abrogate and repeal the laws whereby they are imposed,
upon the allegation that they interfere with the due collection of their taxes, duties,
or excises, by virtue of the following clause, part of section 8th, Article 1st, viz.: "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."
The Congress might gloss over this conduct by construing every purpose for which the
state legislatures now lay taxes, to be for the "general welfare,"; and therefore
as of their jurisdiction.
And the supremacy of the laws of the United States is established by Article 6th, viz.:
"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; any thing in the constitution or laws of any state to the contrary notwithstanding.";
It has been alleged that the words "pursuant to the constitution" are a restriction upon
the authority of Congress; but when it is considered that by other sections they are
invested with every efficient power of government, and which may be exercised to the absolute
destruction of the state governments, without any violation of even the forms of the constitution,
this seeming restriction, as well as every other restriction in it, appears to us to
be nugatory and delusive; and only introduced as a blind upon the real nature of the government.
In our opinion, "pursuant to the constitution" will be coextensive with the will and pleasure
of Congress, which, indeed, will be the only limitation of their powers.
We apprehend that two coordinate sovereignties would be a solecism in politics.
That therefore as there is no line of distinction drawn between the general and state governments;
as the sphere of their jurisdiction is undefined, it would be contrary to the nature of things,
that both should exist together, one or the other would necessarily triumph in the fullness
of dominion.
However the contest could not be of long continuance, as the state governments are divested of every
means of defense, and will be obliged by "the supreme law of the land" to yield at discretion.
It has been objected to this total destruction of the state governments, that the existence
of their legislatures is made essential to the organization of Congress; that they must
assemble for the appointment of the senators and president general of the United States.
True, the state legislatures may be continued for some years, as boards of appointment,
merely, after they are divested of every other function, but the framers of the constitution
foreseeing that the people will soon be disgusted with this solemn mockery of a government without
power and usefulness have made a provision for relieving them from the imposition, in
section 4th, of Article 1st, viz.: "The times, places, and manner of holding elections
for senators and representatives shall be prescribed in each state by the legislature
thereof; but the Congress may at any time, by law make or alter such regulations; except
as to the place of chusing senators."
As Congress have the control over the time of the appointment of the president general,
of the senators and of the representatives of the United States, they may prolong their
existence in office, for life, by postponing the time of their election and appointment,
from period to period, under various pretenses, such as an apprehension of invasion, the factious
disposition of the people, or any other plausible pretense that the occasion may suggest; and
having thus obtained life estates in the government, they may fill up the vacancies themselves,
by their control over the mode of appointment; with this exception in regard to the senators,
that as the place of appointment for them must, by the constitution, be in the particular
state, they may depute somebody in the respective states, to fill up the vacancies in the senate
occasioned by death, until they can venture to assume it themselves.
In this manner may the only restriction in this clause be evaded.
By virtue of the foregoing section, when the spirit of the people shall be gradually broken;
when the general government shall be firmly established, and when a numerous standing
army shall render opposition vain, the Congress may complete the system of despotism, in renouncing
all dependence on the people, by continuing themselves, and [their] children in the government.
The celebrated Montesquieu, in his Spirit of Laws, vol. 1, page 12th, says, "That
in a democracy there can be no exercise of sovereignty, but by the suffrages of the people,
which are their will; now the sovereign's will is the sovereign himself; the laws therefore,
which establish the right of suffrage, are fundamental to this government.
In fact, it is as important to regulate in a republic in what manner, by 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."
The time, mode, and place of the election of representatives, senators and president
general of the United States ought not to be under the control of Congress, but fundamentally
ascertained and established.
The new constitution, consistently with the plan of consolidation, contains no reservation
of the rights and privileges of the state governments, which was made in the confederation
of the year 1778, by Article the 2d, viz.: "That each state retains its sovereignty,
freedom and independence, and every power, jurisdiction and right, which is not by this
confederation expressly delegated to the United States in Congress assembled."
The legislative power vested in Congress by the foregoing recited sections is so unlimited
in its nature; may be so comprehensive, and boundless its exercise, that this alone would
be amply sufficient to annihilate the state governments, and swallow them up in the grand
vortex of general empire.
The judicial powers vested in Congress are also so various and extensive, that by legal
ingenuity they may be extended to every case, and thus absorb the state judiciaries, and
when we consider the decisive influence that a general judiciary would have over the civil
polity of the several states, we do not hesitate to pronounce that this power, unaided by the
legislative, would effect a consolidation of the states under one government.
The powers of a court of equity, vested by this constitution in the tribunals of Congress;
powers which do not exist in Pennsylvania unless so far as they can be incorporated
with jury trial, would, in this state, greatly contribute to this event.
The rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities,
and delays, which a court of chancery, with the appellate powers of the supreme court
in fact as well as law would furnish him with, and thus the poor man being plunged in the
bottomless pit of legal discussion would drop his demand in despair.
In short, consolidation pervades the whole constitution.
It begins with an annunciation that such was the intention.
The main pillars of the fabric correspond with it, and the concluding paragraph is a
confirmation of it.
The preamble begins with the words, "We the people of the United States," which
is the style of a compact between individuals entering into a state of society, and not
that of a confederation of states.
The other features of consolidation, we have before noticed.
Thus we have fully established the position, that the powers vested by this constitution
in Congress will effect a consolidation of the states under one government, which even
the advocates of this constitution admit could not be done without the sacrifice of all liberty.
3.
We dissent, thirdly, because if it were practicable to govern so extensive a territory as these
United States includes, on the plan of a consolidated government, consistent with the principles
of liberty and the happiness of the people, yet the construction of this constitution
is not calculated to attain the object, for independent of the nature of the case, it
would of itself, necessarily produce a despotism, and that not by the usual gradations, but
with the celerity that has hitherto only attended revolutions effected by the sword.
To establish the truth of this position, a cursory investigation of the principles and
form of this constitution will suffice.
The first consideration that this review suggests is the emission of a BILL OF RIGHTS ascertaining
and fundamentally establishing those unalienable and personal rights of men, without the full,
free, and secure enjoyment of which there can be no liberty, and over which it is not
necessary for a good government to have the control.
The principal of which are the rights of conscience, personal liberty by the clear and unequivocal
establishment of the writ of habeas corpus, jury trial in criminal and civil cases, by
an impartial jury of the vicinage or county; with the common law proceedings, for the safety
of the accused in criminal prosecutions; and the liberty of the press, that scourge of
tyrants, and the grand bulwark of every other liberty and privilege; the stipulation heretofore
made in favor of them in the state constitutions are entirely superseded by this constitution.
The legislature of a free country should be so formed as to have a competent knowledge
of its constituents, and enjoy their confidence.
To produce these essential requisites, the representation ought to be fair, equal, and
sufficiently numerous, to possess the same interests, feelings, opinions, and views,
which the people themselves would possess were they all assembled; and so numerous as
to prevent bribery and undue influence, and so responsible to the people, by frequent
and fair elections, as to prevent their neglecting or sacrificing the views and interests of
their constituents, to their own pursuits.
We will now bring the legislature under this constitution to the test of the foregoing
principles, which will demonstrate, that it is deficient in every essential quality of
a just and safe representation.
The house of representatives is to consist of 65 members; that is one for about every
50,000 inhabitants, to be chosen every two years.
Thirty-three members will form a quorum for doing business, and 17 of these, being the
majority, determine the sense of the house.
The senate, the other constituent branch of the legislature, consists of 26 members, being
two from each state, appointed by their legislatures every six years—fourteen senators make a
quorum; the majority of whom, eight, determines the sense of that body; except in judging
on impeachments, or in making treaties, or in expelling a member, when two-thirds of
the senators present must concur.
The president is to have the control over the enacting of laws, so far as to make the
concurrence of two-thirds of the representatives and senators present necessary, if he should
object to the laws.
Thus it appears that the liberties, happiness, interests, and great concerns of the whole
United States may be dependent upon the integrity, virtue, wisdom, and knowledge of 25 or 26
men.
How inadequate and unsafe a representation!
Inadequate, because the sense and views of 3 or 4 millions of people diffused over so
extensive a territory comprising such various climates, products, habits, interests, and
opinions cannot be collected in so small a body; and besides, it is not a fair and equal
representation of the people even in proportion to its number, for the smallest state has
as much weight in the senate as the largest, and from the smallness of the number to be
chosen for both branches of the legislature; and from the mode of election and appointment,
which is under the control of Congress; and from the nature of the thing, men of the most
elevated rank in life will alone be chosen.
The other orders in the society, such as farmers, traders, and mechanics, who all ought to have
a competent number of their best-informed men in the legislature, will be totally unrepresented.
The representation is unsafe because in the exercise of such great powers and trusts,
it is so exposed to corruption and undue influence, by the gift of the numerous places of honor
and emolument, at the disposal of the executive; by the arts and address of the great and designing;
and by direct bribery.
The representation is moreover inadequate and unsafe, because of the long terms for
which it is appointed, and the mode of its appointment, by which Congress may not only
control the choice of the people, but may so manage as to divest the people of this
fundamental right, and become self-elected.
The number of members in the house of representatives may be increased to one for every 30,000 inhabitants.
But when we consider, that this cannot be done without the consent of the senate, who
from their, share in the legislative, in the executive, and judicial departments, and permanency
of appointment, will be the great efficient body in this government, and whose weight
and predominancy would be abridged by an increase of the representatives, we are persuaded that
this is a circumstance that cannot be expected.
On the contrary, the number of representatives will probably be continued at 65, although
the population of the country may swell to treble what it now is; unless a revolution
should effect a change.
We have before noticed the judicial power as it would effect a consolidation of the
states into one government; we will now examine it, as it would affect the liberties and welfare
of the people, supposing such a government were practicable and proper.
The judicial power, under the proposed constitution, is founded on the well-known principles of
the civil law, by which the judge de-termines both on law and fact, and appeals are allowed
from the inferior tribunals to the superior, upon the whole question; so that facts as
well as law, would be reexamined, and even new facts brought forward in the court of
appeals; and to use the words of a very eminent civilian, "The cause is many times another
thing before the court of appeals, than what it was at the time of the first sentence."
That this mode of proceeding is the one which must be adopted under this constitution is
evident from the following circumstances: 1st.
That the trial by jury, which is the grand characteristic of the common law, is secured
by the constitution, only in criminal cases.
2d.
That the appeal from both law and fact is expressly established, which is utterly inconsistent
with the principles of the common law, and trials by jury.
The only mode in which an appeal from law and fact can be established is by adopting
the principles and practice of the civil law; unless the United States should be drawn into
the absurdity of calling and swearing juries, merely for the purpose of contradicting their
verdicts, which would render juries contemptible and worse than useless.
3d.
That the courts to be established would decide on all cases of law and equity, which is a
well-known characteristic of the civil law, and these courts would have conusance [cognizance]
not only of the laws of the United States and of treaties, and of cases affecting ambassadors,
but of all cases of admiralty and maritime jurisdiction, which last are matters belonging
exclusively to the civil law, in every nation in Christendom.
Not to enlarge upon the loss of the invaluable right of trial by an unbiased jury, so dear
to every friend of liberty, the monstrous expense and inconveniences of the mode of
proceeding to be adopted are such as will prove intolerable to the people of this country.
The lengthy proceedings of the civil law courts in the chancery of England, and in the courts
of Scotland and France, are such that few men of moderate fortune can endure the expense
of; the poor man must therefore submit to the wealthy.
Length of purse will too often prevail against right and justice.
For instance, we are told by the learned Judge Blackstone, that a question only on the property
of an ox, of the value of three guineas, originating under the civil law proceedings in Scotland,
after many interlocutory orders and sentences below, was carried at length from the court
of sessions, the highest court in that part of Great Britain, by way of appeal to the
House of Lords, where the question of law and fact was finally determined.
He adds, that no pique of spirit could in the court of king's bench or common pleas
at Westminster have given continuance to such a cause for a tenth-part of the time, nor
have cost a twentieth-part of the expense.
Yet the costs in the courts of king's bench and common pleas in England are infinitely
greater than those which the people of this country have ever experienced.
We abhor the idea of losing the transcendent privilege of trial by jury, with the loss
of which, it is remarked by the same learned author, that in Sweden, the liberties of the
commons were extinguished by an aristocratic senate; and trial by jury and the liberty
of the people went out together.
At the same time we regret the intolerable delay, the enormous expenses and infinite
vexation to which the people of this country will be exposed from the voluminous proceedings
of the courts of civil law, and especially from the appellate jurisdiction, by means
of which a man may be drawn from the utmost boundaries of this extensive country to the
seat of the supreme court of the nation to contend, perhaps with a wealthy and powerful
adversary.
The consequence of this establishment will be an absolute confirmation of the power of
aristocratical influence in the courts of justice; for the common people will not be
able to contend or struggle against it.
Trial by jury in criminal cases may also be excluded by declaring that the libeler, for
instance, shall be liable to an action of debt for a specified sum, thus evading the
common law prosecution by indictment and trial by jury.
And the common course of proceeding against a ship for breach of revenue laws by information
(which will be classed among civil causes) will at the civil law be within the resort
of a court, where no jury intervenes.
Besides, the benefit of jury trial, in cases of a criminal nature, which cannot be evaded,
will be rendered of little value, by calling the accused to answer far from home; there
being no provision that the trial be by a jury of the neighborhood or country.
Thus an inhabitant of Pittsburgh, on a charge of crime committed on the banks of the Ohio,
may be obliged to defend himself at the side of the Delaware, and so vice versa.
To conclude this head, we observe that the judges of the courts of Congress would not
be independent, as they are not debarred from holding other offices during the pleasure
of the president and senate, and as they may derive their support in part from fees alterable
by the legislature.
The next consideration that the constitution presents is the undue and dangerous mixture
of the powers of government: the same body possessing legislative, executive, and judicial
powers.
The senate is a constituent branch of the legislature, it has judicial power in judging
on impeachments, and in this case unites in some measure the characters of judge and party,
as all of the principal officers are appointed by the president general, with the concurrence
of the senate and therefore they derive their offices in part from the senate.
This may bias the judgments of the senators, and tend to screen great delinquents from
punishment.
And the senate has, moreover, various and great executive powers, viz.; in concurrence
with the president general, they form treaties with foreign nations, that may control and
abrogate the constitutions and laws of the several states.
Indeed, there is no power, privilege, or liberty of the state governments, or of the people,
but what may be affected by virtue of this power.
For all treaties, made by them, are to be the "supreme law of the land; any thing
in the constitution or laws of any state, to the contrary notwithstanding."
And this great power may be exercised by the president and 10 senators (being two-thirds
of 14 which is a quorum of that body).
What an inducement would this offer to the ministers of foreign powers to compass by
bribery such concessions as could not otherwise be obtained.
It is the unvaried usage of all free states, whenever treaties interfere with the positive
laws of the land, to make the intervention of the legislature necessary to give them
operation.
This became necessary, and was afforded by the parliament of Great Britain in consequence
of the late commercial treaty between that kingdom and France.
As the senate judges on impeachments, who is to try the members of the senate for the
abuse of this power!
And none of the great appointments of office can be made without the consent of the senate.
Such various, extensive, and important powers combined in one body of men are inconsistent
with all freedom; the celebrated Montesquieu tells us, that "when the legislative and
executive powers are united in the same person, or in the same body of magistrates, there
can be no liberty, because apprehensions may arise, lest the same monarch or senate should
enact tyrannical laws, to execute them in a tyrannical manner."
"Again, there is no liberty, if the power of judging be not separated from the legislative
and executive powers.
Were it joined with the legislative, the life and liberty of the subject would be exposed
to arbitrary control: for the judge would then be legislator.
Were it joined to the executive power, the judge might behave with all the violence of
an oppressor.
There would be an end of everything, were the same man, or the same body of the nobles,
or of the people, to exercise those three powers; that of enacting laws; that of executing
the public resolutions; and that of judging the crimes or differences of individuals."
The president general is dangerously connected with the senate; his coincidence with the
views of the ruling junto in that body is made essential to his weight and importance
in the government, which will destroy all independency and purity in the executive department,
and having the power of pardoning without the concurrence of a council, he may screen
from punishment the most treasonable attempts that may be made on the liberties of the people,
when instigated by his coadjutors in the senate.
Instead of this dangerous and improper mixture of the executive with the legislative and
judicial, the supreme executive powers ought to have been placed in the president, with
a small independent council made personally responsible for every appointment to office
or other act, by having their opinions recorded; and that without the concurrence of the majority
of the quorum of this council, the president should not be capable of taking any step.
We have before considered internal taxation, as it would effect the destruction of the
state governments, and produce one consolidated government.
We will now consider that subject as it affects the personal concerns of the people.
The power of direct taxation applies to every individual, as Congress, under this government,
is expressly vested with the authority of laying a capitation or poll tax upon every
person to any amount.
This is a tax that, however oppressive in its nature, and unequal in its operation,
is certain as to its produce and simple in its collection; it cannot be evaded like the
objects of imposts or excise, and will be paid, because all that a man hath will he
give for his head.
This tax is so congenial to the nature of despotism, that it has ever been a favorite
under such governments.
Some of those who were in the late general convention from this state have long labored
to introduce a poll tax among us.
The power of direct taxation will further apply to every individual, as Congress may
tax land, cattle, trades, occupations, etc. to any amount, and every object of internal
taxation is of that nature, that however oppressive, the people will have but this alternative,
either to pay the tax, or let their property be taken, for all resistance will be vain.
The standing army and select militia would enforce the collection.
For the moderate exercise of this power, there is no control left in the state governments,
whose intervention is destroyed.
No relief, or redress of grievances can be extended, as heretofore, by them.
There is not even a declaration of RIGHTS to which the people may appeal for the vindication
of their wrongs in the court of justice.
They must therefore, implicitly, obey the most arbitrary laws, as the worst of them
will be pursuant to the principles and form of the constitution, and that strongest of
all checks upon the conduct of administration, responsibility to the people, will not exist
in this government.
The permanency of the appointments of senators and representatives, and the control the Congress
have over their election, will place them independent of the sentiments and resentment
of the people, and the administration having a greater interest in the government than
in the community, there will be no consideration to restrain them from oppression and tyranny.
In the government of this state, under the old confederation, the members of the legislature
are taken from among the people, and their interests and welfare are so inseparably connected
with those of their constituents, that they can derive no advantage from oppressive laws
and taxes, for they would suffer in common with their fellow citizens; would participate
in the burthens they impose on the community, as they must return to the common level, after
a short period; and notwithstanding every exertion of influence, every means of corruption,
a necessary rotation excludes them from permanency in the legislature.
This large state is to have but ten members in that Congress which is to have the liberty,
property, and dearest concerns of every individual in this vast country at absolute command,
and even these ten persons, who are to be our only guardians, who are to supersede the
legislature of Pennsylvania, will not be of the choice of the people, nor amenable to
them.
From the mode of their election and appointment they will consist of the lordly and high-minded;
of men who will have no congenial feelings with the people, but a perfect indifference
for, and contempt of them; they will consist of those harpies of power, that prey upon
the very vitals; that riot on the miseries of the community.
But we will suppose, although in all probability it may never be realized in fact, that our
deputies in Congress have the welfare of their constituents at heart, and will exert themselves
in their behalf.
What security could even this afford; what relief could they extend to their oppressed
constituents?
To attain this, the majority of the deputies of the twelve other states in Congress must
be alike well disposed; must alike forego the sweets of power, and relinquish the pursuits
of ambition, which from the nature of things is not to be expected.
If the people part with a responsible representation in the legislature, founded upon fair, certain,
and frequent elections, they have nothing left they can call their own.
Miserable is the lot of that people whose every concern depends on the WILL and PLEASURE
of their rulers.
Our soldiers will become Janissaries, and our officers of government bashaws; in short,
the system of despotism will soon be completed.
From the foregoing investigation, it appears that the Congress under this constitution
will not possess the confidence of the people, which is an essential requisite in a good
government; for unless the laws command the confidence and respect of the great body of
the people, so as to induce them to support them, when called on by the civil magistrate,
they must be executed by the aid of a numerous standing army, which would be inconsistent
with every idea of liberty; for the same force that may be employed to compel obedience to
good laws, might and probably would be used to wrest from the people their constitutional
liberties.
The framers of this constitution appear to have been aware of this great deficiency;
to have been sensible that no dependence could be placed on the people for their support;
but on the contrary, that the government must be executed by force.
They have therefore made a provision for this purpose in a permanent STANDING ARMY, and
a MILITIA that may be subjected to as strict discipline and government.
A standing army in the hands of a government placed so independent of the people may be
made a fatal instrument to overturn the public liberties; it may be employed to enforce the
collection of the most oppressive taxes, and to carry into execution the most arbitrary
measures.
An ambitious man who may have the army at his devotion may step up into the throne,
and seize upon absolute power.
The absolute unqualified command that Congress have over the militia may be made instrumental
to the destruction of all liberty, both public and private; whether of a personal, civil,
or religious nature.
First, the personal liberty of every man probably from sixteen to sixty years of age may be
destroyed by the power Congress have in organizing and governing of the militia.
As militia they may be subjected to fines to any amount, levied in a military manner;
they may be subjected to corporal punishments of the most disgraceful and humiliating kind,
and to death itself, by the sentence of a court martial.
To this our young men will be more immediately subjected, as a select militia, composed of
them, will best answer the purposes of government.
Secondly, the rights of conscience may be violated, as there is no exemption of those
persons who are conscientiously scrupulous of bearing arms.
These compose a respectable proportion of the community in the state.
This is the more remarkable, because even when the distresses of the late war, and the
evident disaffection of many citizens of that description, inflamed our passions, and when
every person, who was obliged to risk his own life, must have been exasperated against
such as on any account kept back from the common danger, yet even then, when outrage
and violence might have been expected, the rights of conscience were held sacred.
At this momentous crisis, the framers of our state constitution made the most express and
decided declaration and stipulations in favor of the rights of conscience; but now when
no necessity exists, those dearest rights of men are left insecure.
Thirdly, the absolute command of Congress over the militia may be destructive of public
liberty; for under the guidance of an arbitrary government, they may be made the unwilling
instruments of tyranny.
The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection
occasioned by the most galling oppression, and aided by the standing army, they will
no doubt be successful in subduing their liberty and independency; but in so doing, although
the magnanimity of their minds will be extinguished, yet the meaner passions of resentment and
revenge will be increased, and these in turn will be the ready and obedient instruments
of despotism to enslave the others; and that with an irritated vengeance.
Thus may the militia be made the instruments of crushing the last efforts of expiring liberty,
of riveting the chains of despotism on their fellow citizens, and on one another.
This power can be exercised not only without violating the constitution, but in strict
conformity with it; it is calculated for this express purpose, and will doubtless be executed
accordingly.
As this government will not enjoy the confidence of the people, but be executed by force, it
will be a very expensive and burthensome government.
The standing army must be numerous, and as a further support, it will be the policy of
this government to multiply officers in every department: judges, collectors, tax gatherers,
excisemen, and the whole host of revenue officers will swarm over the land, devouring the hard
earnings of the industrious, like the locusts of old, impoverishing and desolating all before
them.
We have not noticed the smaller, nor many of the considerable blemishes, but have confined
our objections to the great and essential defects; the main pillars of the constitution,
which we have shown to be inconsistent with the liberty and happiness of the people, as
its establishment will annihilate the state governments, and produce one consolidated
government, that will eventually and speedily issue in the supremacy of despotism.
In this investigation, we have not confined our views to the interests or welfare of this
state, in preference to the others.
We have over-looked all local circumstances; we have considered this subject on the broad
scale of the general good; we have asserted the cause of the present and future ages,
the cause of liberty and mankind.
Nathaniel Breading John Smilie
Richard Baird Adam Orth
John A. Hanna John Whitehill
John Harris Robert Whitehill
John Reynolds Jonathan Hoge
Nicholas Lutz
John Ludwig Abraham Lincoln
John Bishop Joseph Heister
Joseph Powel James Martin
William Findley John Baird
James Edgar William Todd
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