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James Wilson, Collected Works of James Wilson, vol. 1 [2007]

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James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1. http://oll.libertyfund.org/titles/2072

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About this Title:

This two-volume set brings together a collection of writings and speeches of James Wilson, one of only six signers of both the Declaration of Independence and the United States Constitution, and one of the most influential members of the federal Constitutional Convention in 1787. Wilson’s writings and speeches had a significant impact on the deliberations that produced the cornerstone documents of our democracy. Wilson’s signal contribution to the founding of our national government was his advocacy for both a strong national government and an open and democratic political system, a position that set him apart from both Alexander Hamilton and Thomas Jefferson.

Wilson’s writings form one of the most significant bodies of thought about the relationship between a distinctively American form of democracy and a distinctly American constitutional system. Wilson wrote extensively on the concepts of separation of powers, the authority of the judiciary to review acts of the other branches, and the development of principles of representative government. This collection of Wilson’s writings includes his famous law lectures, a number of noteworthy essays and speeches, some of which are presented together for the first time, and his opinions in several Supreme Court cases. Together, the writings in this volume illustrate that Wilson’s words more nearly foreshadowed the nation’s future than those of his better remembered contemporaries such as Alexander Hamilton, James Madison, and Thomas Jefferson. In addition to providing the reader with a historical view of the nature of American democracy, the power of courts and judges, the independence of the executive branch, and the power of law to structure social relations, this book speaks directly to the ongoing debate about the scope and nature of judicial review and the place of law and judicial structures in the conduct of society.

Copyright information:

The Introduction, Collector’s Foreword, Collector’s Acknowledgments, Annotations, Bibliographical Essay are the copyright of Liberty Fund 2007. The Bibliographical Glossary in volume 2 is reprinted by permission of the copyright holders the President and Fellows of Harvard College 1967.

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This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

Edition: current; Page: [i]
COLLECTED WORKS OF James Wilson
Edition: current; Page: [ii]
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james wilson

Edition: current; Page: [iii]
COLLECTED WORKS OF James Wilson
James Wilson
Edited by Kermit L. Hall and Mark David Hall with an Introduction by Kermit L. Hall and a Bibliographical Essay by Mark David Hall Collected by Maynard Garrison
VOLUME 1
Liberty Fund
indianapolis
Edition: current; Page: [iv]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

lf4140_figure_002.jpg

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

Introduction, Collector’s Foreword, Collector’s Acknowledgments, Annotations, Bibliographical Essay © 2007 Liberty Fund, Inc. Cover art: James Wilson, etching by Max Rosenthal, 1890. From Library of Congress, Prints and Photographs Division, James Wilson Biographical File, lc-usz62-6065.

Frontispiece portrait of James Wilson by James Barton Longacre, after an original by J. P. H. Elouis, c. 1825, by permission of the National Portrait Gallery, Smithsonian Institution.

All rights reserved

Printed in the United States of America

11 10 09 08 07 c 5 4 3 2 1

11 10 09 08 07 p 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data Wilson, James, 1742–1798.

[Works]

Collected works of James Wilson/edited and with an introduction by Kermit L. Hall with a Bibliographical Essay by Mark David Hall; collected by Maynard Garrison.

p. cm.

Includes bibliographical references and index.

isbn-13: 978-0-86597-682-5 (hardcover—set: alk. paper)

isbn-13: 978-0-86597-684-9 (hardcover—vol 1: alk. paper)

isbn-13: 978-0-86597-685-6 (hardcover—vol 2: alk. paper)

isbn-13: 978-0-86597-683-2 (pbk.—set: alk. paper)

[etc.]

1. Law—United States. I. Hall, Kermit. II. Title.

kf213.w5h35 2007

349.73—dc22 2006102965

Liberty Fund, Inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Edition: current; Page: [v]

CONTENTS

  • Volume 1
  • Collector’s Acknowledgments ix
  • Collector’s Foreword xi
  • Introduction xiii
  • part 1 Political Papers, Speeches, and Judicial Opinions of James Wilson
    • Considerations on the Nature and Extent of the Legislative Authority of the British Parliament (1774) 3
    • Speech Delivered in the Convention for the Province of Pennsylvania, Held at Philadelphia, in January 1775 32
    • An Address to the Inhabitants of the Colonies (1776) 46
    • Considerations on the Bank of North America (1785) 60
    • Remarks of James Wilson in the Federal Convention of 1787 80
    • James Wilson’s State House Yard Speech (October 6, 1787) 171
    • Remarks of James Wilson in the Pennsylvania Convention to Ratify the Constitution of the United States (1787) 178
    • Oration Delivered on the 4th of July, 1788, at the Procession Formed at Philadelphia to Celebrate the Adoption of the Constitution of the United States 285
    • Speech on Choosing the Members of the Senate by Electors; Delivered, on the 31st December, 1789, in the Convention of Pennsylvania, Assembled for the Purpose of Reviewing, Altering, and Amending the Constitution of the State 294 Edition: current; Page: [vi]
    • Speech Delivered, on 19th January, 1790, in the Convention of Pennsylvania, Assembled for the Purpose of Reviewing, Altering, and Amending the Constitution of the State 309
    • A Charge Delivered to the Grand Jury in the Circuit Court of the United States for the District of Virginia, in May, 1791 320
    • Hayburn’s Case (1792) 346
    • Chisholm v. Georgia (1793) 351
    • Henfield’s Case (1793) 367
    • Ware v. Hylton (1796) 370
    • On the Improvement and Settlement of Lands in the United States 372
    • On the History of Property 387
  • part 2 Lectures on Law
    • Mark David Hall, Bibliographical Essay: “History of James Wilson’s Law Lectures” 401
    • Preface by Bird Wilson 417
    • Lectures on Law, Part 1 427
      • Chapter I. Introductory Lecture. Of the Study of the Law in the United States 431
      • Chapter II. Of the General Principles of Law and Obligation 464
      • Chapter III. Of the Law of Nature 500
      • Chapter IV. Of the Law of Nations 526
      • Chapter V. Of Municipal Law 549
      • Chapter VI. Of Man, as an Individual 585
      • Chapter VII. Of Man, as a Member of Society 621
      • Chapter VIII. Of Man, as a Member of a Confederation 645
      • Chapter IX. Of Man, as a Member of the Great Commonwealth of Nations 673
      • Chapter X. Of Government 689
      • Chapter XI. Comparison of the Constitution of the United States, with That of Great Britain 718 Edition: current; Page: [vii]
    • Volume 2 Lectures on Law, Part 1 (continued) 747
      • Chapter XII. Of the Common Law 749
      • Chapter XIII. Of the Nature and Philosophy of Evidence 792
    • Part 2
      • Chapter I. Of the Constitutions of the United States and of Pennsylvania – Of the Legislative Department 829
      • Chapter II. Of the Executive Department 873
      • Chapter III. Of the Judicial Department 885
      • Chapter IV. Of the Nature of Courts 943
      • Chapter V. Of the Constituent Parts of Courts. – Of the Judges 950
      • Chapter VI. The Subject Continued. – Of Juries 954
      • Chapter VII. The Subject Continued. – Of Sheriffs and Coroners 1012
      • Chapter VIII. The Subject Continued. – Of Counsellors and Attornies 1019
      • Chapter IX. The Subject Continued. – Of Constables 1033
      • Chapter X. Of Corporations 1035
      • Chapter XI. Of Citizens and Aliens 1038
      • Chapter XII. Of the Natural Rights of Individuals 1053
    • Part 3
      • Chapter I. Of the Nature of Crimes; and the Necessity and Proportion of Punishment 1087
      • Chapter II. Of Crimes Against the Right of Individuals to Their Property 1118
      • Chapter III. Of Crimes Against the Rights of Individuals to Liberty, and to Reputation 1130
      • Chapter IV. Of Crimes Against the Right of Individuals to Personal Safety 1137
      • Chapter V. Of Crimes Immediately Against the Community 1149
      • Chapter VI. Of Crimes Affecting Several of the Natural Rights of Individuals 1157
      • Chapter VII. Of Crimes Against the Rights of Individuals Acquired Under Civil Government 1160 Edition: current; Page: [viii]
      • Chapter VIII. Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred in the Commission of the Same Crime 1166
      • Chapter IX. Of the Direct Means Used by the Law to Prevent Offences 1170
      • Chapter X. Of the Different Steps Prescribed by the Law, for Apprehending, Detaining, Trying, and Punishing Offenders 1175
  • Bibliographical Glossary 1205
  • Afterword 1215
  • Index 1217
Edition: current; Page: [ix]

COLLECTOR’S ACKNOWLEDGMENTS

The genesis of the Collected Works of James Wilson was the chance discovery in 1995 of Andrew Bennett’s pamphlet “James Wilson of St. Andrews, an American Statesman” (1928) in a bookstall at the Sunday Antiques Faire at St. Andrews Town Hall. The journey from that initial discovery to this publication was made possible through the help of many scholars, all of whom eagerly shared their knowledge with me. These include: the staff of the University of St. Andrews Library, Jack Rakove (Stanford University), Dennis L. Bark (Hoover Institution), James Billington (Library of Congress), George Carey (Georgetown University), David Kennedy (Earhart Foundation), Hans Eichoz (Liberty Fund), Thomas Vail (Cleveland, The Plain Dealer), and Mark David Hall (George Fox University). I am indebted to each of them.

Maynard Garrison
San Francisco, CA
Edition: current; Page: [x] Edition: current; Page: [xi]

COLLECTOR’S FOREWORD

In 1907 Professor L. H. Alexander of Harvard University observed that “two great figures . . . loom from the Revolutionary era, the one, [James] Wilson’s, whose brain conceived and created the nation; the other, [George] Washington’s, who wielded the physical forces that made it.”1 Alexander concluded that because of Wilson’s intellectual and theoretical contributions to the nation’s founding, it was certain that future scholars would shower great attention on him. Compared with others of the founding generation, however, that has not happened. There is not a little irony in this development. For example, in 1997 Lady Margaret Thatcher stated before the annual convention of the American Bar Association that the modern political era began with the signing of the Declaration of Independence and the subsequent adoption of the American Constitution in 1787, both documents Wilson helped to shape and to which he affixed his signature. Government created by consideration and choice, rather than force or accident, had become the universally admired model, Thatcher observed, and Wilson was one of the architects of that model. It was Wilson who wove the intellectual threads of his generation into a theory of popularly based government wedded to the rule of law. In theory and action Wilson, as Alexander argued, created a nation.

The path of Wilson’s life, career, and political thought are detailed in Kermit Hall’s introduction. As Hall makes clear, Wilson was at the front rank of the founders. He was also in touch with the future. “By adopting this system,” Wilson explained in 1787, “we shall probably lay a foundation for erecting temples of liberty, in every part of the earth.” He went on to insist that “[t]he advantages resulting from this system will not be confined to the United States; it will draw from Europe many worthy Edition: current; Page: [xii] characters, who pant for the enjoyment of freedom.”2 Thus the universal admiration for the American system recognized by Lady Thatcher in 1997 was foretold by James Wilson more than two centuries earlier. It is for this reason that we return with respect to his works.

Maynard Garrison
San Francisco
Edition: current; Page: [xiii]

INTRODUCTION
The Reputation of James Wilson

James Wilson was a dominant figure in the founding of the American nation, not just in politics and law, but in personal ambition. He had a formidable appetite for fame and wealth matched by a powerful intellect. Wilson was one of only six persons to sign both the Declaration of Independence and the Constitution; only Gouverneur Morris spoke more frequently in the Philadelphia Convention of 1787; and scholars rank Wilson as the second most influential member of that convention, behind only James Madison. Wilson was, in the end, a tragic figure, a founder who understood the future too clearly and pointed to it too directly, both for his own immediate reputation and, as significantly, for his standing among generations to come. These volumes are intended to stimulate new research and analysis of Wilson’s contributions in the ongoing effort to determine accurately his rightful place in the founding era.

Wilson’s writings have always competed for attention against the better known works of the founding generation, notably The Federalist Papers authored by John Jay, James Madison, and Alexander Hamilton.i Moreover, scholars have turned repeatedly to the individual writings of Madison, Thomas Jefferson, and John Adams to discern the nature of free institutions. The materials in this volume suggest that Wilson, as the historian Gordon Wood has noted, was one of the most, if not the most, ardent advocates for the people as the sovereign base of the new American constitutional system.ii

Wilson deserves attention as well because he sketched a genuinely systematic view of the law. His Lectures on Law, while never published in a Edition: current; Page: [xiv] single volume during his life, were nonetheless intended to make him the American equivalent of Sir Edward Blackstone, the great English legal commentator. The Lectures reflect Wilson’s scholarly approach to matters of public affairs, a quality that set him apart from Thomas Jefferson, Oliver Ellsworth, Edmund Randolph, Tapping Reeve, and George Wythe. Wilson attempted to blend the ideas of liberty and the rule of law with the new idea of popular sovereignty. Moreover, the Lectures stand in marked contrast to Wilson’s contributions as a justice of the Supreme Court. He crafted few opinions while on the high court; in eight years, Wilson produced about twenty total pages of written opinions, a legacy that reflected neither his talent as a lawyer nor his impact on American law. His most important opinion, in Chisholm v. Georgia (1793), was quickly overturned by the ratification of the Eleventh Amendment.iii In this light his ambitious project to synthesize principles of natural law and popular will in the Lectures stands as his most definitive statement about the character of American law.

The Lectures, there is no doubt, were a serious contribution to the literature of the law that no student of its early national origins can ignore. Wilson deserves high marks for his efforts to reduce and synthesize American law, a particularly difficult task in light of the jumble of colonial legal practices and the traditions of the English common law. What set him apart from his better-known contemporaries was his gift for addressing the law in broad, often bold strokes that encompassed philosophy, psychology, and political theory.

Despite the obvious importance of his contributions, Wilson continues to struggle for attention in comparison with the other founders at least in part because of his personal life. Wilson’s adult life was marked by land-development schemes, a corresponding inability to reconcile his quest for individual wealth with a scrupulous attention to the public interest, and ultimately the distinction of being the only justice of the Supreme Court ever imprisoned for debt. That made Wilson something of a paradox. He was trained in the Scottish Moral Enlightenment tradition of Thomas Reid and Francis Hutcheson, which stressed, among other things, the close relationship among public virtue, moral commitment to the public interest, Edition: current; Page: [xv] and respect for the will of the people based on their intrinsic good. This philosophical perspective, however, collided with Wilson’s fabled scramble for wealth, power, and social station. Wilson’s articulated philosophy was based on a relatively optimistic view of human nature; his personal conduct betrayed to his critics a more pessimistic assessment. Madison, who was also schooled in the Scottish Moral Enlightenment, diverged from Wilson by rejecting the latter’s strongly populist impulses and substituting in their place the belief that if men were angels there would be no need for a constitution in the first place. Wilson has been considered a conservative because of his opposition to the Pennsylvania Constitution of 1776, but at the Constitutional Convention of 1787 he was the only founder to argue for “the direct election of the executive, the direct and proportional election of senators, and the principle of ‘one person, one vote.’”iv

However, like Chief Justice John Marshall, he also supported the constitutional separation of powers and checks and balances—even suggesting in his Lectures that the Supreme Court could strike down an act of Congress if it violated the Constitution or natural law.v Although he lost many battles at the Constitutional Convention, America’s constitutional system has come to closely resemble that advocated by Wilson. Accordingly, the materials in this volume can help us better understand the political and legal ideas underlying the American experiment in constitutional government.

Beginnings

James Wilson was born in 1742 at Carskerdo, Scotland. His father was a farmer who resided in the vicinity of St. Andrews.vi Despite his Edition: current; Page: [xvi] modest beginnings, Wilson received a splendid classical education at Culpar grammar school, which enabled him to win a scholarship to the University of St. Andrews in 1757. This education served him well throughout his life, training him in scholarly analysis and simultaneously providing a lifelong intellectual compass. The Scottish Moral Enlightenment and the Common Sense school of philosophy associated with it pervaded these institutions and deeply influenced Wilson.

After completing his studies, Wilson moved to America in the midst of the Stamp Act agitations in 1765. Early the next year, he accepted a position as a Latin tutor and then a lecturer in English Literature at the College of Philadelphia (later part of the University of Pennsylvania), only to abandon it to study law under John Dickinson. On borrowed capital, he also began a lifelong passion—speculating in land. The College awarded him an honorary Master of Arts degree in 1766. In 1768, the year after his admission to the Philadelphia bar, Wilson set up practice at Reading, Pennsylvania. Two years later he moved westward to the Scotch-Irish settlement of Carlisle and built up a broad clientele. The following year he married Rachel Bird, the daughter of a wealthy Berks County landowner, Edition: current; Page: [xvii] a union that joined her family’s considerable wealth with the young lawyer’s voracious appetite for speculation in land. The marriage produced six children and lasted until 1786, when Rachel Wilson died. Seven years later Wilson married again, to Hannah Gray, half his age and a resident of Boston, who outlived him.

Of Wilson’s children, the best known was his third, Bird, born in 1777. Bird became his father’s favorite, and he alone among the children was permitted to enter his study to read while his father worked. Wilson also took the young boy with him as he went about Philadelphia doing business and conferring on matters of politics and law. In 1792 the fifteen-year-old Bird graduated from the University of Pennsylvania and went on to become one of the chief managers of his father’s gradually collapsing financial empire. Following the elder Wilson’s death, it fell to Bird to arrange for the publication of his father’s Works in 1804, including the Lectures on Law.

While Wilson began his family he also entered the swirl of Revolutionary era politics. In Carlisle in 1774 he assumed the chairmanship of the city’s committee of correspondence, attended the first provincial assembly, and completed preparation of Considerations on the Nature and Extent of the Legislative Authority of the British Parliament. This tract was an early statement challenging British authority; it was also Wilson’s first direct published attack on what became one of his favorite targets, Parliamentary sovereignty. His authorship of the pamphlet established him as a Whig leader, and it is one of the most important documents in this collection.

The next year, voters sent Wilson to the provincial assembly, which in turn sent him to the Continental Congress, where he sat mainly on military and Indian affairs committees. In 1776, bound by the Pennsylvania legislature not to vote for independence, he joined the moderates in Congress, voting for a three-week delay in considering Richard Henry Lee’s resolution of June 7 for independence, what ultimately became in the hands of Thomas Jefferson the Declaration of Independence. Wilson, however, after Pennsylvania freed the state delegates to vote their consciences, switched his vote, and on the July 1 and 2 ballots he voted in favor of and ultimately signed the Declaration of Independence.

At the same time, Wilson strenuously opposed the republican Pennsylvania constitution of 1776. That position proved politically costly, and in Edition: current; Page: [xviii] 1777 he lost his seat in Congress when his aggressive frontier constituents viewed him as out of step with the fast-moving revolution. Wilson relocated to Annapolis during the winter of 1777–78, subsequently taking up residence in Philadelphia, where he resided for the remainder of his life.

Wilson’s quest for wealth became increasingly apparent. In Philadelphia he emerged as a spokesperson for and leader of conservative republican groups determined to break with the British without fundamentally losing economic control. Despite the dislocations created by the war, Wilson’s economic fortunes blossomed. He became a successful businessman, and the uncertain state created by the conflict served his speculative interest in land well. In June 1779 the French government appointed Wilson its advocate general in the new United States, a post he held until 1781. In this office, Wilson skillfully addressed commercial and maritime matters involving France while defending the Loyalists who opposed the American Revolution. Wilson resigned the post in 1783, however, because the French had failed to honor their agreement to compensate him. Two years later, however, the King of France rewarded him with a lump-sum payment of ten thousand livres.

Wilson’s success in the face of the hardship of others made him a target. Motivated by soaring inflation and food shortages brought on by the war, a mob attacked Wilson’s home in the fall of 1779. He and thirty-five other prominent businessmen were barricaded inside his home at Third and Walnut Streets, a residence that came to be known as Fort Wilson. The fracas proved a turning point for both Wilson’s political fortunes and the conservatives in the city, who gained political traction in the face of casualties. Congress in 1781 selected him to be one of the directors of the Bank of North America, led by Robert Morris. Morris had been not just a client but a fellow investor with Wilson in several speculative land deals. A year later, he was selected to serve again in the Continental Congress, a post that he held until 1787.

The mob violence in Philadelphia also prompted Wilson to adopt an even stronger nationalist position, one that coincided with his self-interest in the success of the Bank of North America. In 1785 the radical elements of the Pennsylvania legislature proposed revoking the bank’s charter. In return for a fee of four hundred dollars, Wilson agreed to write a pamphlet in support of the bank. The bank had established a modicum Edition: current; Page: [xix] of fiscal stability during the revolutionary crisis, but as significantly, Wilson was indebted to it for more than thirty thousand dollars in loans. His widely circulated pamphlet, Considerations on the Bank of North America, offered a vision of the powers of the national government that foreshadowed the new Constitution drafted two years later. Wilson insisted that repeal of the Bank’s charter by the Pennsylvania Assembly would be economically foolish.

His position at once aligned him with the conservative elements in Pennsylvania politics and affirmed his strong nationalism. It also was unsuccessful. The Assembly repealed the charter in Pennsylvania; Wilson’s opponents painted him as more interested in his own economic advantage than in the well-being of his fellow citizens. Yet even his sharpest critics stood in awe of the erudition of Considerations and of Wilson’s general intelligence.

The Philadelphia Convention of 1787 and the Ratification of the Constitution

Wilson’s greatest moment in public life came in the Philadelphia Convention of 1787.vii Wilson was a staunch advocate for separation of powers that included an independent and powerful judiciary, a popularly elected president, and a bicameral legislative branch. He prevailed in his arguments in support of the judiciary, although one of his pet ideas, a Council of Revision, lost not once but three times before the delegates. Wilson’s hope of having a popularly elected president with a three-year term also failed, with the delegates instead adopting an electoral college, which Wilson came to support, and a four-year term. Article I did include a bicameral scheme, as Wilson proposed, but with the Senate selected by state legislators rather than the people.

Wilson also advocated for federalism and the related concept of dual sovereignty. Since the people were the foundation of all government, they could construct as many levels of authority as they wished. Thus, the Edition: current; Page: [xx] people could not only establish a national government of enumerated powers but simultaneously lend their support to state governments vested with the traditional police powers of health, safety, morals, and welfare. Ironically, both John C. Calhoun and Abraham Lincoln in the years leading up to the Civil War found in Wilson’s ideas arguments to support either the limited or the perpetual nature of the Union.

Wilson’s colleagues selected him to be one of the six delegates who reported the final document for acceptance, a genuine honor to a person uniformly recognized as one of its chief architects. And Wilson also played a decisive role in the ratification of the Constitution in his important home state. He was the only member of the Pennsylvania state convention of 1787 to ratify the Constitution who had served in the Philadelphia Convention. Following the ratification of the federal constitution in Pennsylvania, Wilson participated in a second state convention to align the state constitution with the new federal document.

The Writings in This Volume: Legal Philosopher and Associate Justice

In 1789 President George Washington appointed Wilson an associate justice of the Supreme Court. At the same time Wilson agreed to give a series of law lectures at the College of Philadelphia. The documents in this collection speak to his role in both.

Wilson used his university position to deliver his Lectures on Law. The Lectures comprise almost seven hundred pages of text; the first was publicly delivered on December 15, 1790. They were long on theory and short on the kinds of blackletter law issues that might be of practical value to students. The Lectures were lectures. They were not finely hewn essays meant to be read rather than spoken.viii Only about half of them were delivered over the course of two winter terms at the law school, hardly enough time for Wilson to sketch his ambitious vision of American law. At the same time, Wilson was also busy becoming a justice of the Supreme Court and managing his increasingly chaotic business affairs.

Edition: current; Page: [xxi]

The Lectures shed light on Wilson’s philosophy of law, on the relationship of politics to law, on the role of God in the development of law, and thus on the landscape of early America in general. The Lectures are also one of the most notable examples in American thought of the purported link between popular will and moral sense philosophy. While Wilson owed a great deal to the Scottish Moral Enlightenment, he also infused his lectures with ideas drawn from John Locke, insisting that government depended on a voluntary compact that included the right and duty of every citizen to act in ways that conformed to the laws of God and nature. Wilson also agreed with Locke that the consent of the people was essential to create and maintain the state.

Wilson’s Lectures underscore that he objected to the Pennsylvania Constitution of 1776 not because it was too democratic but because it granted too much popular authority to the legislative branch at the expense of the two other branches, the executive and the judicial, which he considered to have a popular base as well. Wilson, in other sections of the Lectures, objected that an all-powerful, single-house legislature threatened to produce “sudden and violent fits of despotism, injustice, and cruelty.”ix Wilson wanted the broadest possible popular base for the executive and legislative branches at the same time that he insisted that all three branches, including the appointed judiciary, enjoyed coequal status as agents of the people.

That theoretical proposition collided with practical reality in Chisholm v. Georgia (1793), the most important Supreme Court case in which he participated.x Wilson insisted that the people could at once support both the federal government and each of the separate states. The plaintiff, a citizen of South Carolina and the executor of a merchant in that state, sued the state of Georgia for the value of clothing supplied by the merchant during the Revolutionary War. Georgia ignored a summons to appear in federal court and asserted that it was a sovereign and independent state immune from any federal lawsuit. Article III section 2 of the Constitution extended the federal judicial power to controversies between “a State and Citizens of another State.” The Court entered a default judgment against Georgia, Edition: current; Page: [xxii] with four votes cast seriatim by Wilson, John Jay, William Cushing, and John Blair, Jr., and a strong dissent by James Iredell.

Wilson wrote that sovereignty resided in the people of the United States “for the purposes of the Union” and that as to those purposes Georgia was “not a sovereign state.”xi Georgia stood no higher than any individual; it had to be held to account for the contracts it made, and the place to do so was in the federal courts. The backlash against the decision in general and against the words of Wilson (and Jay) in particular was especially vehement among Anti-Federalists. The result was the speedy ratification in 1795 of the Eleventh Amendment. The new amendment stripped the federal courts of jurisdiction in suits commenced against a state by citizens of another state or another nation. This rebuke of Wilson was particularly poignant since in the constitutional convention he had urged the principle of dual sovereignty. Put to the test on the bench, however, Wilson discovered that his views on the sovereignty of the people had less support than he supposed, at least when that sovereignty trumped state authority.

Wilson’s strident nationalism also led him to oppose the addition of the Bill of Rights to the Constitution. Based on his new concept of the perpetually sovereign people, Wilson confidently proclaimed that the proposed Bill of Rights was neither essential nor necessary. Wilson even argued that the addition of a bill of rights would be dangerous because any enumeration of rights would imply that others were not included.

The Lectures also remind us that Wilson was something of a legal sociologist. For example, he insisted that the will of the people tended to mirror their needs through the law, and he used the jury system to prove this proposition. The jury, according to Wilson, was the most important embodiment of the will of the people in the legal system and an essential safeguard of liberty. Few early Americans, as the Lectures make clear, wrote with greater authority and passion about the jury. Wilson insisted that trial by jury was essential to “just government” and freedom. He, however, was an equally strong critic of jury nullification, the practice by which juries interposed their interpretation of the law in place of that of a judge.

Wilson also covered the subject of equity. He believed that the entire purpose of the legal system was to produce justice; accordingly, the concept Edition: current; Page: [xxiii] of equity was central to the success of the American experiment. Wilson argued that judges should be more than mere voices of precedent; they had also to make certain that what he called “the spirit of the law” was realized.xii He also warned that judges should not make law. According to Wilson, a judge should take account of “the immediate sentiments of justice” and should implement “principles and rules of genuine policy and natural justice” for the purpose of promoting a true “science of law.”xiiiHe urged common law judges to apply equitable principles in the interest of “continual progression,” because “equity may well be deemed the conductor of law towards a state of refinement and perfection.”xiv

Wilson emerged as a proponent of law as a tool for the commercial growth of the new nation. If the Republic were to prosper, it would do so based on principles of uniformity and predictability. Once again, he drew on his Scottish experience. America’s economy, like that of Scotland, would prosper to the extent that it embraced principles of international commercial law or, as it was called then, the law of nations.

The connection that Wilson made among common law, natural law, and the law of nations also informed his thinking about judicial review. For his authority, Wilson drew on Lord Coke’s decision in Dr. Bonham’s Case (1610).xv He also took exception to Blackstone’s view that judges could not defeat the intention of a legislative body, since in the new American scheme the people rather than Parliament were sovereign. Because judges were also agents of the people, those same judges could strike down an unconstitutional law. The people would expect nothing less of them. His version of judicial review was in part text based. Judges, he believed, were required to take the text of the Constitution and lay it alongside the law that was in question. Judges could not simply do what they felt was best. In the Lectures, he went even further. He insisted that any act of a legislature could be subject to the control “arising from natural and revealed law.”xvi

Wilson argued strongly in the Lectures for the importance of federal judicial review. He had insisted in Hayburn’s Case (1792) that the justices Edition: current; Page: [xxiv] should not hear claims made by Revolutionary War pensioners, even though an act of Congress directed that they do so. He and other members of the Court objected because the law required them to perform non-judicial duties, thus violating the principle of separation of powers. The decision also prefigured arguments to come that the Court could declare an act of Congress to be unconstitutional, although it did not do so in this particular instance. He expected the people in whom he so trusted to respond with support, but in practice Wilson consistently underestimated how broad the base of opposition was not only to an active federal judiciary but also to the courts’ exercise of the equity power.

Wilson’s own behavior on and off the bench reminds us of how unworkable his attempt was to establish natural law as a cornerstone of American politics and jurisprudence and to frame a common law of federal crimes. For example, in Henfield’s Case (1793) he attempted to establish the principle of a common law of federal crimes. The jury hearing the case, however, rejected his direct charge that, even though there was no specific statute that Gideon Henfield had violated, the captain of a privateer had nevertheless acted illegally by bringing a captured British ship to Philadelphia.xvii

Disgrace and Death

Wilson’s ambition for high station in life collided with his equally strong quest for material gain. Wilson wanted to be Chief Justice, a position that he believed he had earned for his resolute support of the new national government. Wilson was also vain enough to believe that of the members of the Court, he was the one best versed in the law. Such an ambition was entirely in keeping with his goal of becoming the American Blackstone.

When the Supreme Court came into session in February 1796, President George Washington had to replace Chief Justice John Jay. Wilson seemed a likely possibility, but because of his preoccupation with land and Edition: current; Page: [xxv] business ventures, Washington ultimately turned to Oliver Ellsworth, a Connecticut Federalist, a member of the Philadelphia Convention, and the principal framer of the Judiciary Act of 1789. Wilson was devastated by being passed over, so much so that he wrote privately of his intentions of resigning.

He simply could not afford to do so. His steadily plummeting financial fortunes made his meager Supreme Court salary all the more important, especially since he was borrowing money to cover failed land speculation at rates as high as thirty percent. Wilson confronted financial ruin and, even more tragically for a judge, arrest and imprisonment. After spending a brief period in a New Jersey jail in July 1797, Wilson fled to Edenton, North Carolina. He was unable to return to the February 1798 term of the Court because his creditors would have had him imprisoned. Among the creditors to whom he owed money was Pierce Butler of South Carolina, who, on learning of Wilson’s presence across the border, demanded payment of the $197,000 owed him, a huge sum for the time. Wilson could not pay; he was again jailed. Ultimately, Butler agreed to the release of the Supreme Court justice, who took up residence in the Horniblow Tavern. In July he was stricken with malaria; on August 21, 1798, he died, financially ruined.

Legacy

Litigation over Wilson’s extensive estate went on for years. Its disposition included hundreds of thousands of dollars in real property in Pennsylvania and the Gibraltar Iron Works in Bucks County. His estate also included an extensive selection of books on farming, a lifelong passion of Wilson and an echo of his childhood in Scotland. Ultimately, his son, Bird, was able to pay the great bulk of his debts in full.

In the end, the real wealth and fame that Wilson sought eluded him. Literally no one had a good word to say about him. “His death,” wrote Page Smith, “had been a pathetic one without the nobler dimensions of tragedy.”xviii Perhaps even more important, Wilson left this life with a Edition: current; Page: [xxvi] string of claims of serious ethical lapses as a legacy. His land-acquisition programs and personal conduct are subjects well worthy of the attention of modern scholars of the Court and the era.

Wilson did leave a legacy in the law and in his contributions to the creation of the American republic. As Arthur Wilmarth reminds us, he was committed to the idea of public virtue, an unwavering belief in the power of popular sovereignty, and an oddly unrealistic view of human nature. What Wilson wanted was, in the end, not within his or even the nation’s reach: a more perfect society that not only secured the rights of individuals but actually enlarged them through an appointed federal judiciary. Judges were supposed to be agents of human perfection. In some ways Wilson was the first sociologist of American law; his legacy lingers in his admonition to view law as a system of social adaptation.

The Text

This edition is the most comprehensive collection of materials ever assembled by and about James Wilson. It also has the virtue of gathering all of Wilson’s important works in one place.

Although comprehensive, it is not complete. For example, Wilson made a number of charges to grand juries in the course of his circuit court duties while sitting on the Supreme Court between 1789 and 1798, but not all of them were recorded, and of those that were only two merit serious consideration, one from Pennsylvania in 1793 and the other from Virginia in 1797. Scholars uniformly treat these as important contributions by Wilson to the development of American law.xix Only two of Wilson’s Supreme Court opinions are included, again because of their importance. The first is from the famous case of Chisholm (1793); the other, and much briefer, from Ware v. Hylton (1796).xx Wilson possessed one of the finest legal minds of his era, but it seldom found expression in Supreme Court opinions. Wilson was on the Court in only two other significant cases: Hylton v. Edition: current; Page: [xxvii] United States (1796) and Calder v. Bull (1798).xxi In the case of Calder, Wilson did not participate because of his flight from creditors and an illness that ultimately killed him. All commentators agree, however, that Chisholm was Wilson’s most important Supreme Court opinion and that his opinion in Ware, while brief, underscored his basic constitutional values.

In 1967 Robert G. McCloskey produced the last edited volumes of Wilson’s works. His two-volume compilation was for the most part a reprint of the 1804 text prepared by Bird Wilson. In 1896 James DeWitt Andrews edited a two-volume collection. Andrews omitted some of the papers that Bird Wilson had included and modestly rearranged some of the materials. Both McCloskey and Andrews followed Bird Wilson’s organizational scheme. McCloskey provided an illuminating introduction and supplied footnoted annotations along with the translation of Latin phrases.

Since the publication of McCloskey’s two volumes on Wilson, additional materials have come to light. These include Wilson’s carefully handwritten notes for the Lectures on Law, now in the manuscript collection of the Free Library of Philadelphia. These notes are discussed at the beginning of the section on the Lectures in an essay by Wilson scholar Mark David Hall. Hall not only addresses the notes but also offers a substantial commentary on the origins, purposes, and value of the Lectures.

In presenting the text, the chief goal has been to make it as authentic as the original 1804 edition of the lectures and to leave the reader to reach his or her own judgments about it. The spelling, capitalization, and punctuation have been left as they were in the 1804 edition. James Wilson’s footnotes and those of his son have also been left intact. They are indicated by letters. Footnotes marked by numbers are modern translations of Latin phrases from McCloskey’s version of Wilson’s works or annotations for individuals who might not be known to even well-educated readers today. Again, the objective has been to intrude as little as possible on the way in which Bird Wilson presented his father’s materials. Where “Ed.” appears beside a note, it indicates that the annotation was made by Bird Wilson.

This volume is arranged somewhat differently from that of McCloskey, in part to reflect the new material and in part to underscore that the Lectures were a self-contained enterprise. Thus, the first materials in the volume Edition: current; Page: [xxviii] are some of what McCloskey termed “Miscellaneous Papers,” which he placed at the end of his volumes. The decision to place these materials first was driven in part by their chronology, since most of them appeared before the Lectures were given. In addition to the miscellaneous material included by previous editors, this edition contains Wilson’s “An Address to the Inhabitants of the Colonies” (1776), “Remarks of James Wilson in the Federal Convention of 1787,” “State House Yard Speech” (1787), and “On the Improvement and Settlement of Lands in the United States (mid-1790s). The materials from the constitutional convention include every instance that Madison recorded Wilson’s comments. Although Wilson repeated some of these thoughts in his Lectures, the excerpts from the convention shine light on one of his most important contributions to American constitutional history. As well, this edition contains Wilson’s remarks at the Pennsylvania ratifying convention and his most important judicial opinions.

Finally, this volume also contains a Bibliographical Glossary, one that McCloskey prepared for his two-volume work. The glossary is helpful because Wilson drew extensively on a rich and varied body of writing, but in indicating the sources to which he turned, he used what McCloskey rightly termed an “often . . . baffling” system of abbreviated citations.xxii The glossary will help readers to understand the sources that Wilson relied on and to confirm his ambitions as a serious scholar.

The impetus for this volume originated with Maynard Garrison of San Francisco, a person with a strong interest in Wilson and the Founding Era. Garrison pulled together a collection of materials that makes this volume the most comprehensive assemblage of writings and speeches ever collected by and about Wilson.

In bringing this volume to publication, I have had considerable assistance. I am grateful to James Taylor, Robert Wagner, and Phyllis A. Hall for their assistance with footnote preparation, citation checking, research on the annotations, and proofreading. I also treasure the professional support and patience provided by Laura Goetz of the Liberty Fund press.

Kermit L. Hall
Albany, New York, September 1, 2005
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PART I: Political Papers, Speeches, and Judicial Opinions of James Wilson

“All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.” (“Considerations,” August 17, 1774, James Wilson.)

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Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, 1774.

Originally written in 1768, Wilson’s pamphlet was one of the first to argue that Parliament had no authority to pass legislation regulating the colonies’ internal or external affairs.

No question can be more important to Great Britain, and to the colonies, than this—does the legislative authority of the British parliament extend over them?

On the resolution of this question, and on the measures which a resolution of it will direct, it will depend, whether the parent country, like a happy mother, shall behold her children flourishing around her, and receive the most grateful returns for her protection and love; or whether, like a step dame, rendered miserable by her own unkind conduct, she shall see their affections alienated, and herself deprived of those advantages which a milder treatment would have ensured to her.

The British nation are generous: they love to enjoy freedom: they love to behold it: slavery is their greatest abhorrence. Is it possible, then, that they would wish themselves the authors of it? No. Oppression is not a plant of the British soil; and the late severe proceedings against the colonies must have arisen from the detestable schemes of interested ministers, who have misinformed and misled the people. A regard for that nation, from whom we have sprung, and from whom we boast to have derived the spirit which prompts us to oppose their unfriendly measures, must lead us to put this construction on what we have lately seen and experienced. When, therefore, they shall know and consider the justice of our claim—that we insist only upon being treated as freemen, and as the descendants of those British ancestors, whose memory we will not dishonour by our degeneracy, it is reasonable to hope, that they will approve of our conduct, and bestow their loudest applauses on our congenial ardour for liberty.

But if these reasonable and joyful hopes should fatally be disappointed, it will afford us at least some satisfaction to know, that the principles on Edition: current; Page: [4] which we have founded our opposition to the late acts of parliament, are the principles of justice and freedom, and of the British constitution. If our righteous struggle shall be attended with misfortunes, we will reflect with exultation on the noble cause of them; and while suffering unmerited distress, think ourselves superiour to the proudest slaves. On the contrary, if we shall be reinstated in the enjoyment of those rights, to which we are entitled by the supreme and uncontrollable laws of nature, and the fundamental principles of the British constitution, we shall reap the glorious fruit of our labours; and we shall, at the same time, give to the world and to posterity an instructive example, that the cause of liberty ought not to be despaired of, and that a generous contention in that cause is not always unattended with success.

The foregoing considerations have induced me to publish a few remarks on the important question, with which I introduced this essay.

Those who allege that the parliament of Great Britain have power to make laws binding the American colonies, reason in the following manner. “That there is and must be in every state a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii,1 or the rights of sovereignty, reside:”a “That this supreme power is, by the constitution of Great Britain, vested in the king, lords, and commons:”b “That, therefore, the acts of the king, lords, and commons, or, in other words, acts of parliament, have, by the British constitution, a binding force on the American colonies, they composing a part of the British empire.”

I admit that the principle, on which this argument is founded, is of great importance: its importance, however, is derived from its tendency to promote the ultimate end of all government. But if the application of it would, in any instance, destroy, instead of promoting, that end, it ought, in that instance, to be rejected: for to admit it, would be to sacrifice the end to the means, which are valuable only so far as they advance it.

All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could Edition: current; Page: [5] enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.c

This rule is founded on the law of nature: it must control every political maxim: it must regulate the legislature itself.d The people have a right to insist that this rule be observed; and are entitled to demand a moral security that the legislature will observe it. If they have not the first, they are slaves; if they have not the second, they are, every moment, exposed to slavery. For “civil liberty is nothing else but natural liberty, devested of that part which constituted the independence of individuals, by the authority which it confers on sovereigns, attended with a right of insisting upon their making a good use of their authority, and with a moral security that this right will have its effect.”e

Let me now be permitted to ask—Will it ensure and increase the happiness of the American colonies, that the parliament of Great Britain should possess a supreme, irresistible, uncontrolled authority over them? Is such an authority consistent with their liberty? Have they any security that it will be employed only for their good? Such a security is absolutely necessary. Parliaments are not infallible: they are not always just. The members, of whom they are composed, are human; and, therefore, they may err; they are influenced by interest; and, therefore, they may deviate from their duty. The acts of the body must depend upon the opinions and dispositions of the members: the acts of the body may, then, be the result of errour and of vice. It is no breach of decency to suppose all this: the British constitution supposes it: “it supposes that parliaments may betray their trust, and provides, as far as human wisdom can provide, that they may not be able to do so long, without a sufficient control.”f Without provisions for this purpose, the temple of British liberty, like a structure of ice, would instantly dissolve before the fire of oppression and despotick sway.

It will be very material to consider the several securities, which the inhabitants of Great Britain have, that their liberty will not be destroyed by the legislature, in whose hands it is intrusted. If it shall appear, that Edition: current; Page: [6] the same securities are not enjoyed by the colonists; the undeniable consequence will be, that the colonists are not under the same obligations to intrust their liberties into the hands of the same legislature: for the colonists are entitled to allg the privileges of Britons. We have committed no crimes to forfeit them: we have too much spirit to resign them. We will leave our posterity as free as our ancestors left us.

To give to any thing that passes in parliament the force of a law, the consent of the king, of the lords, and of the commonsh is absolutely necessary.i If, then, the inhabitants of Great Britain possess a sufficient restraint upon any of these branches of the legislature, their liberty is secure, provided they be not wanting to themselves. Let us take a view of the restraints, which they have upon the house of commons.

They elect the members of that house. “Magistrates,” says Montesquieu,j2“are properly theirs, who have the nomination of them.” The members of the house of commons, therefore, elected by the people, are the magistrates of the people; and are bound by the ties of gratitude for the honour and confidence conferred upon them, to consult the interest of their constituents.

The power of elections has ever been regarded as a point of the last consequence to allk free governments. The independent exercise of that power is justly deemed the strongest bulwark of the British liberties.l As such, it has always been an object of great attention to the legislature; and is expressly stipulated with the prince in the bill of rights. All those are excluded from voting, whose poverty is such, that they cannot live independent, and must therefore be subject to the undue influence of their superiours. Such are Edition: current; Page: [7] supposed to have no will of their own: and it is judged improper that they should vote in the representation of a free state. What can exhibit in a more striking point of view, the peculiar care which has been taken, in order to render the election of members of parliament entirely free? It was deemed an insult upon the independent commons of England, that their uninfluenced suffrages should be adulterated by those who were not at liberty to speak as they thought, though their interests and inclinations were the same. British liberty, it was thought, could not be effectually secured, unless those who made the laws were freely, and without influence, elected by those for whom they were made. Upon this principle is reasonably founded the maxim in law—that every one, who is capable of exercising his will, is party, and presumed to consent, to an act of parliament.

For the same reason that persons, who live dependent upon the will of others, are not admitted to vote in elections, those who are under age, and therefore incapable of judging; those who are convicted of perjury or subornation of perjury, and therefore unworthy of judging; and those who obtain their freeholds by fraudulent conveyances, and would therefore vote to serve infamous purposes, are all likewise excluded from the enjoyment of this great privilege. Corruption at elections is guarded against by the strictest precautions, and most severe penalties. Every elector, before he polls, must, if demanded by a candidate or by two electors, take the oath against bribery, as prescribed by 2. Geo. 2. c. 24. Officers of the excise, of the customs, and of the post offices; officers concerned in the duties upon leather, soap, paper, striped linens imported, hackney coaches, cards and dice, are restrained from interfering in elections, under the penalty of one hundred pounds, and of being incapable of ever exercising any office of trust under the king.

Thus is the freedom of elections secured from the servility, the ignorance, and the corruption of the electors; and from the interposition of officers depending immediately upon the crown. But this is not all. Provisions, equally salutary, have been made concerning the qualifications of those who shall be elected. All imaginable care has been taken, that the commons of Great Britain may be neither awed, nor allured, nor deceived into any nomination inconsistent with their liberties.

It has been adopted as a general maxim, that the crown will take advantage of every opportunity of extending its prerogative, in opposition to the privileges of the people; that it is the interest of those who have pensions Edition: current; Page: [8] or offices at will from the crown, to concur in all its measures; that mankind in general will prefer their private interest to the good of their country; and that, consequently, those who enjoy such pensions or offices are unfit to represent a free nation, and to have the care of their liberties committed to their hands.m All such officers or pensioners are declared incapable of being elected members of the house of commons.

But these are not the only checks which the commons of Great Britain have, upon the conduct of those whom they elect to represent them in parliament. The interest of the representatives is the same with that of their constituents. Every measure, that is prejudicial to the nation, must be prejudicial to them and their posterity. They cannot betray their electors, without, at the same time, injuring themselves. They must join in bearing the burthen of every oppressive act; and participate in the happy effects of every wise and good law. Influenced by these considerations, they will seriously and with attention examine every measure proposed to them; they will behold it in every light, and extend their views to its most distant consequences. If, after the most mature deliberation, they find it will be conducive to the welfare of their country, they will support it with ardour: if, on the contrary, it appears to be of a dangerous and destructive nature, they will oppose it with firmness.

Every social and generous affection concurs with their interest, in animating the representatives of the commons of Great Britain to an honest and faithful discharge of their important trust. In each patriotick effort, the heart-felt satisfaction of having acted a worthy part vibrates in delightful unison with the applause of their countrymen, who never fail to express their warmest acknowledgements to the friends and benefactors of their country. How pleasing are those rewards! How much to be preferred to that paltry wealth, which is sometimes procured by meanness and treachery! I say sometimes; for meanness and treachery do not always obtain that pitiful reward. The most useful ministers to the crown, and therefore the most likely to be employed, especially in great emergencies, are those who are best beloved by the people; and those only are beloved by the people, who act steadily and uniformly in support of their liberties. Patriots, therefore, have frequently, and especially upon important occasions, the best chance of being advanced to offices of profit and power. An Edition: current; Page: [9] abject compliance with the will of an imperious prince, and a ready disposition to sacrifice every duty to his pleasure, are sometimes, I confess, the steps, by which only men can expect to rise to wealth and titles. Let us suppose that, in this manner, they are successful in attaining them. Is the despicable prize a sufficient recompense, for submitting to the infamous means by which it was procured, and for the torturing remorse with which the possession of it must be accompanied? Will it compensate for the merited curses of the nation and of posterity?

These must be very strong checks upon the conduct of every man, who is not utterly lost to all sense of praise and blame. Few will expose themselves to the just abhorrence of those among whom they live, and to the excruciating sensations which such abhorrence must produce.

But lest all these motives, powerful as they are, should be insufficient to animate the representatives of the nation to a vigorous and upright discharge of their duty, and to restrain them from yielding to any temptation that would incite them to betray their trust; their constituents have still a farther security for their liberties in the frequent election of parliaments. At the expiration of every parliament, the people can make a distinction between those who have served them well, and those who have neglected or betrayed their interest: they can bestow, unasked, their suffrages upon the former in the new election; and can mark the latter with disgrace, by a mortifying refusal. The constitution is thus frequently renewed, and drawn back, as it were, to its first principles; which is the most effectual method of perpetuating the liberties of a state. The people have numerous opportunities of displaying their just importance, and of exercising, in person, these natural rights. The representatives are reminded whose creatures they are; and to whom they are accountable for the use of that power, which is delegated unto them. The first maxims of jurisprudence are ever kept in view—that all power is derived from the people—that their happiness is the end of government.

Frequent new parliaments are a part of the British constitution: by them only, the king can know the immediate sense of the nation. Every supply, which they grant, is justly to be considered as a testimony of the loyalty and affection, which the nation bear to their sovereign; and by this means, a mutual confidence is created between the king and his subjects. How pleasing must such an intercourse of benefits be! How must a father of his people rejoice in such dutiful returns for his paternal care! With what ardour Edition: current; Page: [10] must his people embrace every opportunity of giving such convincing proofs, that they are not insensible of his wise and indulgent rule!

Long parliaments have always been prejudicial to the prince, who summoned them, or to the people, who elected them. In that called by King Charles I,4 in the year 1640, the commons proceeded at first, with vigour and a true patriotick spirit, to rescue the kingdom from the oppression under which it then groaned—to retrieve the liberties of the people, and establish them on the surest foundations—and to remove or prevent the pernicious consequences, which had arisen, or which, they dreaded, might arise from the tyrannical exercise of prerogative. They abolished the courts of the star chamber and high commission: they reduced the forests to their ancient bounds: they repealed the oppressive statutes concerning knighthood: they declared the tax of ship money to be illegal: they presented the petition of rights, and obtained a ratification of it from the crown. But when the king unadvisedly passed an act to continue them till such time as they should please to dissolve themselves, how soon—how fatally did their conduct change! In what misery did they involve their country! Those very men, who, while they had only a constitutional power, seemed to have no other aim but to secure and improve the liberty and felicity of their constituents, and to render their sovereign the glorious ruler of a free and happy people—those very men, after they became independent of the king and of their electors, sacrificed both to that inordinate power which had been given them. A regard for the publick was now no longer the spring of their actions: their only view was to aggrandize themselves, and to establish their grandeur on the ruins of their country. Their views unhappily were accomplished. They overturned the constitution from its very foundation; and converted into rods of oppression those instruments of power, which had been put into their hands for the welfare of the state; but which those, who had formerly given them, could not now reassume. What an instructive example is this! How alarming to those, who have no influence over their legislators—who have no security but that the power, which was originally derived from the people, and was delegated for their preservation, may be abused for their destruction! Kings are not the only tyrants: the conduct of the long parliament will justify me in adding, that kings are not the severest tyrants.

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At the restoration, care was taken to reduce the house of commons to a proper dependence on the king; but immediately after their election, they lost all dependence upon their constituents, because they continued during the pleasure of the crown. The effects soon dreadfully appeared in the long parliament under Charles the second.5 They seemed disposed ingloriously to surrender those liberties, for which their ancestors had planned, and fought, and bled: and it was owing to the wisdom and integrity of twon 6 virtuous ministers of the crown, that the commons of England were not reduced to a state of slavery and wretchedness by the treachery of their own representatives, whom they had indeed elected, but whom they could not remove. Secure of their seats, while they gratified the crown, the members bartered the liberties of the nation for places and pensions; and threw into the scale of prerogative all that weight, which they derived from the people in order to counterbalance it.

It was not till some years after the revolution, that the people could rely on the faithfulness of their representatives, or punish their perfidy. By the statute 6. W. & M. c. 2. it was enacted, that parliaments should not continue longer than three years. The insecure situation of the first prince of the Hanoverian line,7 surrounded with rivals and with enemies, induced the parliament, soon after his accession to the throne, to prolong this term to that of seven years. Attempts have, since that time, been frequently made to reduce the continuance of parliaments to the former term: and such attempts have always been well received by the nation. Undoubtedly they deserve such reception: for long parliaments will naturally forget their dependence on the people: when this dependence is forgotten, they will become corrupt: “Whenever they become corrupt, the constitution of England will lose its liberty—it will perish.”o

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Such is the provision made by the laws of Great Britain, that the commons should be faithfully represented: provision is also made, that faithful representatives should not labour for their constituents in vain. The constitution is formed in such a manner, that the house of commons are able as well as willing to protect and defend the liberties intrusted to their care.

The constitution of Great Britain is that of a limited monarchy; and in all limited monarchies, the power of preserving the limitations must be placed somewhere. During the reigns of the first Norman princes, this power seems to have resided in the clergy and in the barons by turns. But it was lodged very improperly. The clergy, zealous only for the dignity and preeminence of the church, neglected and despised the people, whom, with the soil they tilled, they would willingly have considered as the patrimony of St. Peter. Attached to a foreign jurisdiction, and aspiring at an entire independence of the civil powers, they looked upon the prerogatives of the crown as so many obstacles in the way of their favourite scheme of supreme ecclesiastical dominion; and therefore seized, with eagerness, every occasion of sacrificing the interests of their sovereign to those of the pope. Enemies alike to their king and to their country, their sole and unvaried aim was to reduce both to the most abject state of submission and slavery. The means employed by them to accomplish their pernicious purposes were, sometimes, to work upon the superstition of the people, and direct it against the power of the prince; and, at other times, to work upon the superstition of the prince, and direct it against the liberties of the people.

The power of preserving the limitations of monarchy, for the purposes of liberty, was not more properly placed in the barons. Domineering and turbulent, they oppressed their vassals, and treated them as slaves; they opposed their prince, and were impatient of every legal restraint. Capricious and inconstant, they sometimes abetted the king in his projects of tyranny; and, at other times, excited the people to insurrections and tumults. For these reasons, the constitution was ever fluctuating from one extreme to another; now despotism—now anarchy prevailed.

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But after the representatives of the commons began to sit in a separate house; to be considered as a distinct branch of the legislature; and, as such, to be invested with separate and independent powers and privileges; then the constitution assumed a very different appearance. Having no interest contrary to that of the people, from among whom they were chosen, and with whom, after the session, they were again to mix, they had no views inconsistent with the liberty of their constituents, and therefore could have no motives to betray it. Sensible that prerogative, or a discretionary power of acting where the laws are silent, is absolutely necessary, and that this prerogative is most properly intrusted to the executor of the laws, they did not oppose the exercise of it, while it was directed towards the accomplishment of its original end: but sensible likewise, that the good of the state was this original end, they resisted, with vigour, every arbitrary measure, repugnant to law, and unsupported by maxims of publick freedom or utility.

The checks, which they possessed over prerogative, were calm and gentle—operating with a secret, but effectual force—unlike the impetuous resistance of factious barons, or the boisterous fulminations of ambitious prelates.

One of the most ancient maxims of the English law is, that no freeman can be taxed at pleasure.p But taxes on freemen were absolutely necessary to defray the extraordinary charges of government. The consent of the freemen was, therefore, of necessity to be obtained. Numerous as they were, they could not assemble to give their consent in their proper persons; and for this reason, it was directed by the constitution, that they should give it by their representatives, chosen by and out of themselves. Hence the indisputable and peculiar privilege of the house of commons to grant taxes.q

This is the source of that mild but powerful influence, which the commons of Great Britain possess over the crown. In this consists their security, that prerogative, intended for their benefit, will never be exerted for their ruin. By calmly and constitutionally refusing supplies, or by granting them only on certain conditions, they have corrected the extravagancies Edition: current; Page: [14] of some princes, and have tempered the headstrong nature of others; they have checked the progress of arbitrary power, and have supported, with honour to themselves, and with advantage to the nation, the character of grand inquisitors of the realm. The proudest ministers of the proudest monarchs have trembled at their censures; and have appeared at the bar of the house, to give an account of their conduct, and ask pardon for their faults. Those princes, who have favoured liberty, and thrown themselves upon the affections of their people, have ever found that liberty which they favoured, and those affections which they cultivated, the firmest foundations of their throne, and the most solid support of their power. The purses of their people have been ever open to supply their exigencies: their swords have been ever ready to vindicate their honour. On the contrary, those princes, who, insensible to the glory and advantage of ruling a free people, have preferred to a willing obedience the abject submission of slaves, have ever experienced, that all endeavours to render themselves absolute were but so many steps to their own downfall.

Such is the admirable temperament of the British constitution! such the glorious fabrick of Britain’s liberty—the pride of her citizens—the envy of her neighbours—planned by her legislators—erected by her patriots—maintained entire by numerous generations past! may it be maintained entire by numerous generations to come!

Can the Americans, who are descended from British ancestors, and inherit all their rights, be blamed—can they be blamed by their brethren in Britain—for claiming still to enjoy those rights? But can they enjoy them, if they are bound by the acts of a British parliament? Upon what principle does the British parliament found their power? Is it founded on the prerogative of the king? His prerogative does not extend to make laws to bind any of his subjects. Does it reside in the house of lords? The peers are a collective, and not a representative body. If it resides any where, then, it must reside in the house of commons.

Should any one object here, that it does not reside in the house of commons only, because that house cannot make laws without the consent of the king and of the lords; the answer is easy. Though the concurrence of all the branches of the legislature is necessary to every law; yet the same laws bind different persons for different reasons, and on different principles. The king is bound, because he assented to them. The lords are Edition: current; Page: [15] bound, because they voted for them. The representatives of the commons, for the same reason, bind themselves, and those whom they represent.

If the Americans are bound neither by the assent of the king, nor by the votes of the lords, to obey acts of the British parliament, the sole reason why they are bound is, because the representatives of the commons of Great Britain have given their suffrages in favour of those acts.r But are the representatives of the commons of Great Britain the representatives of the Americans? Are they elected by the Americans? Are they such as the Americans, if they had the power of election, would probably elect? Do they know the interest of the Americans? Does their own interest prompt them to pursue the interest of the Americans? If they do not pursue it, have the Americans power to punish them? Can the Americans remove unfaithful members at every new election? Can members, whom the Americans do not elect; with whom the Americans are not connected in interest; whom the Americans cannot remove; over whom the Americans have no influence—can such members be styled, with any propriety, the magistrates of the Americans? Have those, who are bound by the laws of magistrates not their own, any security for the enjoyment of their absolute rights—those rights, “which every man is entitled to enjoy, whether in society or out of it?”s Is it probable that those rights will be maintained? Is it “the primary end of government to maintain them?”t Shall this primary end be frustrated by a political maxim intended to promote it?

But from what source does this mighty, this uncontrolled authority of the house of commons flow? From the collective body of the commons of Great Britain. This authority must, therefore, originally reside in them: for whatever they convey to their representatives, must ultimately be in themselves.u And have those, whom we have hitherto been accustomed to consider as our fellow subjects, an absolute and unlimited power over us? Have they a natural right to make laws, by which we may be deprived of Edition: current; Page: [16] our properties, of our liberties, of our lives? By what title do they claim to be our masters? What act of ours has rendered us subject to those, to whom we were formerly equal? Is British freedom denominated from the soil, or from the people of Britain? If from the latter, do they lose it by quitting the soil? Do those, who embark, freemen, in Great Britain, disembark, slaves, in America? Are those, who fled from the oppression of regal and ministerial tyranny, now reduced to a state of vassalage to those, who, then, equally felt the same oppression? Whence proceeds this fatal change? Is this the return made us for leaving our friends and our country—for braving the danger of the deep—for planting a wilderness, inhabited only by savage men and savage beasts—for extending the dominions of the British crown—for increasing the trade of the British merchants—for augmenting the rents of the British landlords—for heightening the wages of the British artificers? Britons should blush to make such a claim: Americans would blush to own it.

It is not, however, the ignominy only, but the danger also, with which we are threatened, that affects us. The many and careful provisions which are made by the British constitution, that the electors of members of parliament may be prevented from choosing representatives, who would betray them; and that the representatives may be prevented from betraying their constituents with impunity, sufficiently evince, that such precautions have been deemed absolutely necessary for securing and maintaining the system of British liberty.

How would the commons of Great Britain startle at a proposal, to deprive them of their share in the legislature, by rendering the house of commons independent of them! With what indignation would they hear it! What resentment would they feel and discover against the authors of it! Yet the commons of Great Britain would suffer less inconvenience from the execution of such a proposal, than the Americans will suffer from the extension of the legislative authority of parliament over them.

The members of parliament, their families, their friends, their posterity must be subject, as well as others, to the laws. Their interest, and that of their families, friends, and posterity, cannot be different from the interest of the rest of the nation. A regard to the former will, therefore, direct to such measures as must promote the latter. But is this the case with respect to America? Are the legislators of Great Britain subject to the laws which Edition: current; Page: [17] are made for the colonies? Is their interest the same with that of the colonies? If we consider it in a large and comprehensive view, we shall discern it to be undoubtedly the same; but few will take the trouble to consider it in that view; and of those who do, few will be influenced by the consideration. Mankind are usually more affected with a near though inferiour interest, than with one that is superiour, but placed at a greater distance. As the conduct is regulated by the passions, it is not to be wondered at, if they secure the former, by measures which will forfeit the latter. Nay, the latter will frequently be regarded in the same manner as if it were prejudicial to them. It is with regret that I produce some late regulations of parliament as proofs of what I have advanced. We have experienced what an easy matter it is for a minister, with an ordinary share of art, to persuade the parliament and the people, that taxes laid on the colonies will ease the burthens of the mother country; which, if the matter is considered in a proper light, is, in fact, to persuade them, that the stream of national riches will be increased by closing up the fountain, from which they flow.

As the Americans cannot avail themselves of that check, which interest puts upon the members of parliament, and which would operate in favour of the commons of Great Britain, though they possessed no power over the legislature; so the love of reputation, which is a powerful incitement to the legislators to promote the welfare, and obtain the approbation, of those among whom they live, and whose praises or censures will reach and affect them, may have a contrary operation with regard to the colonies. It may become popular and reputable at home to oppress us. A candidate may recommend himself at his election by recounting the many successful instances, in which he has sacrificed the interests of America to those of Great Britain. A member of the house of commons may plume himself upon his ingenuity in inventing schemes to serve the mother country at the expense of the colonies; and may boast of their impotent resentment against him on that account.

Let us pause here a little.—Does neither the love of gain, the love of praise, nor the love of honour influence the members of the British parliament in favour of the Americans? On what principles, then—on what motives of action, can we depend for the security of our liberties, of our properties, of every thing dear to us in life, of life itself? Shall we depend on their veneration for the dictates of natural justice? A very little share Edition: current; Page: [18] of experience in the world—a very little degree of knowledge in the history of men, will sufficiently convince us, that a regard to justice is by no means the ruling principle in human nature. He would discover himself to be a very sorry statesman, who would erect a system of jurisprudence upon that slender foundation. “He would make,” as my Lord Bacon says, “imaginary laws: for imaginary commonwealths; and his discourses, like the stars, would give little light, because they are so high.”v

But this is not the worst that can justly be said concerning the situation of the colonies, if they are bound by the acts of the British legislature. So far are those powerful springs of action, which we have mentioned, from interesting the members of that legislature in our favour, that, as has been already observed, we have the greatest reason to dread their operation against us. While the happy commons of Great Britain congratulate themselves upon the liberty which they enjoy, and upon the provisions—infallible, as far as they can be rendered so by human wisdom—which are made for perpetuating it to their latest posterity; the unhappy Americans have reason to bewail the dangerous situation to which they are reduced; and to look forward, with dismal apprehension, to those future scenes of woe, which, in all probability, will open upon their descendants.

What has been already advanced will suffice to show, that it is repugnant to the essential maxims of jurisprudence, to the ultimate end of all governments, to the genius of the British constitution, and to the liberty and happiness of the colonies, that they should be bound by the legislative authority of the parliament of Great Britain. Such a doctrine is not less repugnant to the voice of her laws. In order to evince this, I shall appeal to some authorities from the books of the law, which show expressly, or by a necessary implication, that the colonies are not bound by the acts of the British parliament; because they have no share in the British legislature.

The first case I shall mention was adjudged in the second year of Richard the third. It was a solemn determination of all the judges of England, met in the exchequer chamber, to consider whether the people in Ireland were bound by an act of parliament made in England. They resolved, “that they were not, as to such things as were done in Ireland; but that what they did out of Ireland must be conformable to the laws of England, because Edition: current; Page: [19] they were the subjects of England. Ireland,” said they, “has a parliament, who make laws; and our statutes do not bind them; because they do not send knights to parliament: but their persons are the subjects of the king, in the same manner as the inhabitants of Calais, Gascoigne, and Guienne.”w

This is the first case which we find in the books upon this subject; and it deserves to be examined with the most minute attention.

1. It appears, that the matter under consideration was deemed, at that time, to be of the greatest importance: for ordinary causes are never adjourned into the exchequer chamber; only such are adjourned there as are of uncommon weight, or of uncommon difficulty. “Into the exchequer chamber,” says my Lord Coke,x “all cases of difficulty in the king’s bench, or common pleas, &c. are, and of ancient time have been, adjourned, and there debated, argued, and resolved, by all the judges of England and barons of the exchequer.” This court proceeds with the greatest deliberation, and upon the most mature reflection. The case is first argued on both sides by learned counsel, and then openly on several days, by all the judges. Resolutions made with so much caution, and founded on so much legal knowledge, may be relied on as the surest evidences of what is law.

2. It is to be observed, that the extent of the legislative authority of parliament is the very point of the adjudication. The decision was not incidental or indigested: it was not a sudden opinion, unsupported by reason and argument: it was an express and deliberate resolution of that very doubt, which they assembled to resolve.

3. It is very observable, that the reason, which those reverend sages of the law gave, why the people in Ireland were not bound by an act of parliament made in England, was the same with that, on which the Americans have founded their opposition to the late statutes made concerning them. The Irish did not send members to parliament; and, therefore, they were not bound by its acts. From hence it undeniably appears, that parliamentary authority is derived solely from representation—that those, who are bound by acts of parliament, are bound for this only reason, because they are represented in it. If it were not the only reason, parliamentary authority might subsist independent of it. But as parliamentary authority fails wherever this Edition: current; Page: [20] reason does not operate, parliamentary authority can be founded on no other principle. The law never ceases, but when the reason of it ceases also.

4. It deserves to be remarked, that no exception is made of any statutes, which bind those who are not represented by the makers of them. The resolution of the judges extends to every statute: they say, without limitation—“our statutes do not bind them.” And indeed the resolution ought to extend to every statute; because the reason, on which it is founded, extends to every one. If a person is bound only because he is represented, it must certainly follow that wherever he is not represented he is not bound. No sound argument can be offered, why one statute should be obligatory in such circumstances, and not another. If we cannot be deprived of our property by those, whom we do not commission for that purpose; can we, without any such commission, be deprived, by them, of our lives? Have those a right to imprison and gibbet us, who have not a right to tax us?

5. From this authority it follows, that it is by no means a rule, that the authority of parliament extends to all the subjects of the crown. The inhabitants of Ireland were the subjects of the king as of his crown of England; but it is expressly resolved, in the most solemn manner, that the inhabitants of Ireland are not bound by the statutes of England. Allegiance to the king and obedience to the parliament are founded on very different principles. The former is founded on protection: the latter, on representation. An inattention to this difference has produced, I apprehend, much uncertainty and confusion in our ideas concerning the connexion, which ought to subsist between Great Britain and the American colonies.

6. The last observation which I shall make on this case is, that if the inhabitants of Ireland are not bound by acts of parliament made in England, a fortiori,9 the inhabitants of the American colonies are not bound by them. There are marks of the subordination of Ireland to Great Britain, which cannot be traced in the colonies. A writ of errour lies from the king’s bench in Ireland,y to the king’s bench, and consequently to the house of lords, in England; by which means the former kingdom is subject to the control of the courts of justice of the latter kingdom. But a writ of errour does not lie in the king’s bench, nor before the house of lords, in Edition: current; Page: [21] England, from the colonies of America. The proceedings in their courts of justice can be reviewed and controlled only on an appeal to the king in council.z

The foregoing important decision, favourable to the liberty of all the dominions of the British crown that are not represented in the British Parliament, has been corroborated by subsequent adjudications. I shall mention one that was given in the king’s bench, in the fifth year of King William and Queen Mary,10 between Blankard and Galdy.a 11

The plaintiff was provost marshal of Jamaica, and by articles, granted a deputation of that office to the defendant, under a yearly rent. The defendant gave his bond for the performance of the agreement; and an action of debt was brought upon that bond. In bar of the action, the defendant pleaded the statute of 5. Ed. 6. made against buying and selling of offices that concern the administration of justice, and averred that this office concerned the administration of justice in Jamaica, and that, by virtue of that statute, both the bond and articles were void. To this plea the plaintiff replied, that Jamaica was an island inhabited formerly by the Spaniards, “that it was conquered by the subjects of the kingdom of England, commissioned by legal and sufficient authority for that purpose; and that since that conquest its inhabitants were regulated and governed by their own proper laws and statutes, and not by acts of parliament or the statutes of the kingdom of England.” The defendant, in his rejoinder, admits that, before the conquest of Jamaica by the English, the inhabitants were governed by their own laws, but alleges that “since the conquest it was part of the kingdom of England, and governed by the laws and statutes of the kingdom of England, and not by laws and statutes peculiar to the island.” To this rejoinder the plaintiff demurred, and the defendant joined in demurrer.

Here was a cause to be determined judicially upon this single question in law—Were the acts of parliament or statutes of England in force in Jamaica? It was argued on the opposite sides by lawyers of the greatest Edition: current; Page: [22] eminence, before Lord Chief Justice Holt12 (a name renowned in the law) and his brethren, the justices of the king’s bench. They unanimously gave judgment for the plaintiff; and, by that judgment, expressly determined—That the acts of parliament or statutes of England were not in force in Jamaica. This decision is explicit in favour of America; for whatever was resolved concerning Jamaica is equally applicable to every American colony.

Some years after the adjudication of this case, another was determined in the king’s bench, relating to Virginia; in which Lord Chief Justice Holt held, that the laws of England did not extend to Virginia.b

I must not be so uncandid as to conceal, that in Calvin’s case, where the above mentioned decision of the judges in the exchequer chamber, concerning Ireland, is quoted, it is added, by way of explanation of that authority,—“which is to be understood, unless it (Ireland) be especially named.” Nor will I conceal that the same exceptionc is taken notice of, and seems to be allowed, by the judges in the other cases relating to America. To any objection that may, hence, be formed against my doctrine, I answer, in the words of the very accurate Mr. Justice Foster, that “general rules thrown out in argument, and carried farther than the true state of the case then in judgment requireth, have, I confess, no great weight with me.”d

The question before the judges in the cases I have reasoned from, was not how far the naming of persons in an act of parliament would affect them; though, unless named, they would not be bound by it: the question was, whether the legislative authority of parliament extended over the inhabitants of Ireland or Jamaica or Virginia. To the resolution of the latter question the resolution of the former was by no means necessary, and was, therefore, wholly impertinent to the point of the adjudication.

But farther, the reason assigned for the resolution of the latter question is solid and convincing: the American colonies are not bound by the acts of the British parliament, because they are not represented in it. But what reason can be assigned why they should be bound by those acts, in which they are specially named? Does naming them give those, who do them Edition: current; Page: [23] that honour, a right to rule over them? Is this the source of the supreme, the absolute, the irresistible, the uncontrolled authority of parliament? These positions are too absurd to be alleged; and a thousand judicial determinations in their favour would never induce one man of sense to subscribe his assent to them.e

The obligatory force of the British statutes upon the colonies, when named in them, must be accounted for, by the advocates of that power, upon some other principle. In my Lord Coke’s13 Reports, it is said, “that albeit Ireland be a distinct dominion, yet, the title thereof being by conquest, the same, by judgment of law, may be, by express words, bound by the parliaments of England.” In this instance, the obligatory authority of the parliament is plainly referred to a title by conquest, as its foundation and original. In the instances relating to the colonies, this authority seems to be referred to the same source: for any one, who compares what is said of Ireland, and other conquered countries, in Calvin’s case, with what is said of America, in the adjudications concerning it, will find that the judges, in determining the latter, have grounded their opinions on the resolutions given in the former.f It is foreign to my purpose to inquire into the reasonableness Edition: current; Page: [24] of founding the authority of the British parliament over Ireland, upon the title of conquest, though I believe it would be somewhat difficult to deduce it satisfactorily in this manner. It will be sufficient for me to show, that it is unreasonable, and injurious to the colonies, to extend that title to them. How came the colonists to be a conquered people? By whom was the conquest over them obtained? By the house of commons? By the constituents of that house? If the idea of conquest must be taken into consideration when we examine into the title by which America is held, that idea, so far as it can operate, will operate in favour of the colonists, and not against them. Permitted and commissioned by the crown, they undertook, at their own expense, expeditions to this distant country, took possession of it, planted it, and cultivated it. Secure under the protection of their king, they grew and multiplied, and diffused British freedom and British spirit, wherever they came. Happy in the enjoyment of liberty, and in reaping the fruits of their toils; but still more happy in the joyful prospect of transmitting their liberty and their fortunes to the latest posterity, they inculcated to their children the warmest sentiments of loyalty to their sovereign, under whose auspices they enjoyed so many blessings, and of affection and esteem for the inhabitants of the mother country, with whom they gloried in being intimately connected. Lessons of loyalty to parliament, indeed, they never gave: they never suspected that such unheard of loyalty would be required. They never suspected that their descendants would be considered and treated as a conquered people; and therefore they never taught them the submission and abject behaviour suited to that character.

I am sufficiently aware of an objection, that will be made to what I have said concerning the legislative authority of the British parliament. It will be alleged, that I throw off all dependence on Great Britain. This objection will be held forth, in its most specious colours, by those, who, from servility of soul, or from mercenary considerations, would meanly bow their necks to every exertion of arbitrary power: it may likewise alarm some, who entertain the most favourable opinion of the connexion between Great Britain and her colonies; but who are not sufficiently acquainted with the nature of that connexion, which is so dear to them. Those of the first class, I hope, are few; I am sure they are contemptible, and deserve to have very little regard paid to them: but for the sake of those of the second class, who may be more numerous, and whose laudable principles atone for their Edition: current; Page: [25] mistakes, I shall take some pains to obviate the objection, and to show that a denial of the legislative authority of the British parliament over America is by no means inconsistent with that connexion, which ought to subsist between the mother country and her colonies, and which, at the first settlement of those colonies, it was intended to maintain between them: but that, on the contrary, that connexion would be entirely destroyed by the extension of the power of parliament over the American plantations.

Let us examine what is meant by a dependence on Great Britain: for it is always of importance clearly to define the terms that we use. Blackstone, who, speaking of the colonies, tells us, that “they are no part of the mother country, but distinct (though dependent) dominions,”g explains dependence in this manner. “Dependence is very little else, but an obligation to conform to the will or law of that superiour person or state, upon which the inferiour depends. The original and true ground of this superiority, in the case of Ireland, is what we usually call, though somewhat improperly, the right of conquest; a right allowed by the law of nations, if not by that of nature; but which, in reason and civil policy, can mean nothing more, than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.”h

The original and true ground of the superiority of Great Britain over the American colonies is not shown in any book of the law, unless, as I have already observed, it be derived from the right of conquest. But I have proved, and I hope satisfactorily, that this right is altogether inapplicable to the colonists. The original of the superiority of Great Britain over the colonies is, then, unaccounted for; and when we consider the ingenuity and pains which have lately been employed at home on this subject, we may justly conclude, that the only reason why it is not accounted for, is, that it cannot be accounted for. The superiority of Great Britain over the colonies ought, therefore, to be rejected; and the dependence of the colonies upon her, if it is to be construed into “an obligation to conform to the will or law of the superiour state,” ought, in this sense, to be rejected also.

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My sentiments concerning this matter are not singular. They coincide with the declarations and remonstrances of the colonies against the statutes imposing taxes on them. It was their unanimous opinion, that the parliament have no right to exact obedience to those statutes; and, consequently, that the colonies are under no obligation to obey them. The dependence of the colonies on Great Britain was denied, in those instances; but a denial of it in those instances is, in effect, a denial of it in all other instances. For, if dependence is an obligation to conform to the will or law of the superiour state, any exceptions to that obligation must destroy the dependence. If, therefore, by a dependence of the colonies on Great Britain, it is meant, that they are obliged to obey the laws of Great Britain, reason, as well as the unanimous voice of the Americans, teaches us to disown it. Such a dependence was never thought of by those who left Britain, in order to settle in America; nor by their sovereigns, who gave them commissions for that purpose. Such an obligation has no correspondent right: for the commons of Great Britain have no dominion over their equals and fellow subjects in America: they can confer no right to their delegates to bind those equals and fellow subjects by laws.

There is another, and a much more reasonable meaning, which may be intended by the dependence of the colonies on Great Britain. The phrase may be used to denote the obedience and loyalty, which the colonists owe to the kings of Great Britain. If it should be alleged, that this cannot be the meaning of the expression, because it is applied to the kingdom, and not to the king, I give the same answer that my Lord Bacon gave to those who said that allegiance related to the kingdom and not to the king; because in the statutes there are these words—“born within the allegiance of England”—and again—“born without the allegiance of England.” “There is no trope of speech more familiar,” says he, “than to use the place of addition for the person. So we say commonly, the line of York, or the line of Lancaster, for the lines of the duke of York, or the duke of Lancaster. So we say the possessions of Somerset or Warwick, intending the possessions of the dukes of Somerset, or earls of Warwick. And in the very same manner, the statute speaks, allegiance of England, for allegiance of the king of England.”i

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Dependence on the mother country seems to have been understood in this sense, both by the first planters of the colonies, and also by the most eminent lawyers, at that time, in England.

Those who launched into the unknown deep, in quest of new countries and habitations, still considered themselves as subjects of the English monarchs, and behaved suitably to that character; but it no where appears, that they still considered themselves as represented in an English parliament, or that they thought the authority of the English parliament extended over them. They took possession of the country in the king’s name: they treated, or made war with the Indians by his authority: they held the lands under his grants, and paid him the rents reserved upon them: they established governments under the sanction of his prerogative, or by virtue of his charters:—no application for those purposes was made to the parliament: no ratification of the charters or letters patent was solicited from that assembly, as is usual in England with regard to grants and franchises of much less importance.

My Lord Bacon’s15 sentiments on this subject ought to have great weight with us. His immense genius, his universal learning, his deep insight into the laws and constitution of England, are well known and much admired. Besides, he lived at that time when settling and improving the American plantations began seriously to be attended to, and successfully to be carried into execution.j Plans for the government and regulation of the colonies were then forming: and it is only from the first general idea of these plans, that we can unfold, with precision and accuracy, all the more minute and intricate parts, of which they now consist. “The settlement of colonics,” says he, “must proceed from the option of those who will settle them, else it sounds like an exile: they must be raised by the leave, and not by the command of the king. At their setting out, they must have their commission, or letters patent, from the king, that so they may acknowledge their dependency upon the crown of England, and under his protection.” In another place he says, “that they still must be subjects of the realm.”k “In Edition: current; Page: [28] order to regulate all the inconveniences, which will insensibly grow upon them,” he proposes, “that the king should erect a subordinate council in England, whose care and charge shall be, to advise, and put in execution, all things which shall be found fit for the good of those new plantations; who, upon all occasions, shall give an account of their proceedings to the king or the council board, and from them receive such directions, as may best agree with the government of that place.”l It is evident, from these quotations, that my Lord Bacon had no conception that the parliament would or ought to interpose,m either in the settlement or the government of the colonies. The only relation, in which he says the colonists must still continue, is that of subjects: the only dependency, which they ought to acknowledge, is a dependency on the crown.

This is a dependence, which they have acknowledged hitherto; which they acknowledge now; and which, if it is reasonable to judge of the future by the past and the present, they will continue to acknowledge hereafter. It is not a dependence, like that contended for on parliament, slavish and unaccountable, or accounted for only by principles that are false and inapplicable: it is a dependence founded upon the principles of reason, of liberty, and of law. Let us investigate its sources.

The colonists ought to be dependent on the king, because they have hitherto enjoyed, and still continue to enjoy, his protection. Allegiance is the faith and obedience, which every subject owes to his prince. This obedience is founded on the protection derived from government: for protection and allegiance are the reciprocal bonds, which connect the prince and his subjects.n Every subject, so soon as he is born, is under the royal protection, and is entitled to all the advantages arising from it. He therefore owes obedience to that royal power, from which the protection, which he Edition: current; Page: [29] enjoys, is derived. But while he continues in infancy and nonage, he cannot perform the duties which his allegiance requires. The performance of them must be respited till he arrive at the years of discretion and maturity. When he arrives at those years, he owes obedience, not only for the protection which he now enjoys, but also for that which, from his birth, he has enjoyed; and to which his tender age has hitherto prevented him from making a suitable return. Allegiance now becomes a duty founded upon principles of gratitude, as well as on principles of interest: it becomes a debt, which nothing but the loyalty of a whole life will discharge.o As neither climate, nor soil, nor time entitle a person to the benefits of a subject; so an alteration of climate, of soil, or of time cannot release him from the duties of one. An Englishman, who removes to foreign countries, however distant from England, owes the same allegiance to his king there which he owed him at home; and will owe it twenty years hence as much as he owes it now. Wherever he is, he is still liable to the punishment annexed by law to crimes against his allegiance; and still entitled to the advantages promised by law to the duties of it: it is not cancelled; and it is not forfeited. “Hence all children born in any part of the world, if they be of English parents continuing at that time as liege subjects to the king, and having done no act to forfeit the benefit of their allegiance, are ipso facto naturalized: and if they have issue, and their descendants intermarry among themselves, such descendants are naturalized to all generations.”p

Thus we see, that the subjects of the king, though they reside in foreign countries, still owe the duties of allegiance, and are still entitled to the advantages of it. They transmit to their posterity the privilege of naturalization, and all the other privileges which are the consequences of it.q

Now we have explained the dependence of the Americans. They are the subjects of the king of Great Britain. They owe him allegiance. They Edition: current; Page: [30] have a right to the benefits which arise from preserving that allegiance inviolate. They are liable to the punishments which await those who break it. This is a dependence, which they have always boasted of. The principles of loyalty are deeply rooted in their hearts; and there they will grow and bring forth fruit, while a drop of vital blood remains to nourish them. Their history is not stained with rebellious and treasonable machinations: an inviolable attachment to their sovereign, and the warmest zeal for his glory, shine in every page.

From this dependence, abstracted from every other source, arises a strict connexion between the inhabitants of Great Britain and those of America. They are fellow subjects; they are under allegiance to the same prince; and this union of allegiance naturally produces a union of hearts. It is also productive of a union of measures through the whole British dominions. To the king is intrusted the direction and management of the great machine of government. He therefore is fittest to adjust the different wheels, and to regulate their motions in such a manner as to cooperate in the same general designs. He makes war: he concludes peace: he forms alliances: he regulates domestick trade by his prerogative, and directs foreign commerce by his treaties with those nations, with whom it is carried on. He names the officers of government; so that he can check every jarring movement in the administration. He has a negative on the different legislatures throughout his dominions, so that he can prevent any repugnancy in their different laws.

The connexion and harmony between Great Britain and us, which it is her interest and ours mutually to cultivate, and on which her prosperity, as well as ours, so materially depends, will be better preserved by the operation of the legal prerogatives of the crown, than by the exertion of an unlimited authority by parliament.r

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Speech Delivered in the Convention for the Province of Pennsylvania, Held at Philadelphia, in January, 1775.

Whence, Sir, proceeds all the invidious and ill-grounded clamour against the colonists of America? Why are they stigmatized, in Britain, as licentious and ungovernable? Why is their virtuous opposition to the illegal attempts of their governours represented under the falsest colours, and placed in the most ungracious point of view? This opposition, when exhibited in its true light, and when viewed, with unjaundiced eyes, from a proper situation, and at a proper distance, stands confessed the lovely offspring of freedom. It breathes the spirit of its parent. Of this ethereal spirit, the whole conduct, and particularly the late conduct, of the colonists has shown them eminently possessed. It has animated and regulated every part of their proceedings. It has been recognised to be genuine, by all those symptoms and effects, by which it has been distinguished in other ages and other countries. It has been calm and regular: it has not acted without occasion: it has not acted disproportionably to the occasion. As the attempts, open or secret, to undermine or to destroy it, have been repeated or enforced; in a just degree, its vigilance and its vigour have been exerted to defeat or to disappoint them. As its exertions have been sufficient for those purposes hitherto, let us hence draw a joyful prognostick, that they will continue sufficient for those purposes hereafter. It is not yet exhausted; it will still operate irresistibly whenever a necessary occasion shall call forth its strength.

Permit me, sir, by appealing, in a few instances, to the spirit and conduct of the colonists, to evince, that what I have said of them is just. Did they disclose any uneasiness at the proceedings and claims of the British parliament, before those claims and proceedings afforded a reasonable cause for it? Did they even disclose any uneasiness, when a reasonable cause for Edition: current; Page: [33] it was first given? Our rights were invaded by their regulations of our internal policy. We submitted to them: we were unwilling to oppose them. The spirit of liberty was slow to act. When those invasions were renewed; when the efficacy and malignancy of them were attempted to be redoubled by the stamp act; when chains were formed for us; and preparations were made for rivetting them on our limbs—what measures did we pursue? The spirit of liberty found it necessary now to act: but she acted with the calmness and decent dignity suited to her character. Were we rash or seditious? Did we discover want of loyalty to our sovereign? Did we betray want of affection to our brethren in Britain? Let our dutiful and reverential petitions to the throne—let our respectful, though firm, remonstrances to the parliament—let our warm and affectionate addresses to our brethren, and (we will still call them) our friends in Great Britain—let all those, transmitted from every part of the continent, testify the truth. By their testimony let our conduct be tried.

As our proceedings during the existence and operation of the stamp act prove fully and incontestably the painful sensations that tortured our breasts from the prospect of disunion with Britain; the peals of joy, which burst forth universally, upon the repeal of that odious statute, loudly proclaim the heartfelt delight produced in us by a reconciliation with her. Unsuspicious, because undesigning, we buried our complaints, and the causes of them, in oblivion, and returned, with eagerness, to our former unreserved confidence. Our connexion with our parent country, and the reciprocal blessings resulting from it to her and to us, were the favourite and pleasing topicks of our publick discourses and our private conversations. Lulled into delightful security, we dreamt of nothing but increasing fondness and friendship, cemented and strengthened by a kind and perpetual communication of good offices. Soon, however, too soon, were we awakened from the soothing dreams! Our enemies renewed their designs against us, not with less malice, but with more art. Under the plausible pretence of regulating our trade, and, at the same time, of making provision for the administration of justice, and the support of government, in some of the colonies, they pursued their scheme of depriving us of our property without our consent. As the attempts to distress us, and to degrade us to a rank inferiour to that of freemen, appeared now to be reduced into a regular system, it became proper, on our part, to form a Edition: current; Page: [34] regular system for counteracting them. We ceased to import goods from Great Britain. Was this measure dictated by selfishness or by licentiousness? Did it not injure ourselves, while it injured the British merchants and manufacturers? Was it inconsistent with the peaceful demeanour of subjects to abstain from making purchases, when our freedom and our safety rendered it necessary for us to abstain from them? A regard for our freedom and our safety was our only motive; for no sooner had the parliament, by repealing part of the revenue laws, inspired us with the flattering hopes that they had departed from their intentions of oppressing and of taxing us, than we forsook our plan for defeating those intentions, and began to import as formerly. Far from being peevish or captious, we took no publick notice even of their declaratory law of dominion over us: our candour led us to consider it as a decent expedient of retreating from the actual exercise of that dominion.

But, alas! the root of bitterness still remained. The duty on tea was reserved to furnish occasion to the ministry for a new effort to enslave and to ruin us; and the East India Company were chosen, and consented, to be the detested instruments of ministerial despotism and cruelty. A cargo of their tea arrived at Boston. By a low artifice of the governour, and by the wicked activity of the tools of government, it was rendered impossible to store it up, or to send it back; as was done at other places. A number of persons unknown destroyed it.

Let us here make a concession to our enemies: let us suppose that the transaction deserves all the dark and hideous colours, in which they have painted it: let us even suppose—for our cause admits of an excess of candour—that all their exaggerated accounts of it were confined strictly to the truth: what will follow? Will it follow, that every British colony in America, or even the colony of Massachussetts Bay, or even the town of Boston in that colony, merits the imputation of being factious and seditious? Let the frequent mobs and riots that have happened in Great Britain upon much more trivial occasions shame our calumniators into silence. Will it follow, because the rules of order and regular government were, in that instance, violated by the offenders, that, for this reason, the principles of the constitution, and the maxims of justice, must be violated by their punishment? Will it follow, because those who were guilty could not be known, that, therefore, those who were known not to be guilty must Edition: current; Page: [35] suffer? Will it follow, that even the guilty should be condemned without being heard?—That they should be condemned upon partial testimony, upon the representations of their avowed and embittered enemies? Why were they not tried in courts of justice known to their constitution, and by juries of their neighbourhood? Their courts and their juries were not, in the case of Captain Preston, transported beyond the bounds of justice by their resentment: why, then, should it be presumed, that, in the case of those offenders, they would be prevented from doing justice by their affection? But the colonists, it seems, must be stript of their judicial, as well as of their legislative powers. They must be bound by a legislature, they must be tried by a jurisdiction, not their own. Their constitutions must be changed: their liberties must be abridged: and those, who shall be most infamously active in changing their constitutions and abridging their liberties, must, by an express provision, be exempted from punishment.

I do not exaggerate the matter, sir, when I extend these observations to all the colonists. The parliament meant to extend the effects of their proceedings to all the colonists. The plan, on which their proceedings are formed, extends to them all. From an incident, of no very uncommon or atrocious nature, which happened in one colony, in one town in that colony, and in which only a few of the inhabitants of that town took a part, an occasion has been taken by those, who probably intended it, and who certainly prepared the way for it, to impose upon that colony, and to lay a foundation and a precedent for imposing upon all the rest, a system of statutes, arbitrary, unconstitutional, oppressive, in every view and in every degree subversive of the rights, and inconsistent with even the name of freemen.

Were the colonists so blind as not to discern the consequences of these measures? Were they so supinely inactive as to take no steps for guarding against them? They were not. They ought not to have been so. We saw a breach made in those barriers, which our ancestors, British and American, with so much care, with so much danger, with so much treasure, and with so much blood, had erected, cemented, and established for the security of their liberties and—with filial piety let us mention it—of ours: we saw the attack actually begun upon one part: ought we to have folded our hands in indolence, to have lulled our eyes in slumbers, till the attack was carried on, so as to become irresistible, in every part? Sir, I presume Edition: current; Page: [36] to think not. We were roused; we were alarmed, as we had reason to be. But still our measures have been such as the spirit of liberty and of loyalty directed; not such as a spirit of sedition or of disaffection would pursue. Our counsels have been conducted without rashness and faction: our resolutions have been taken without phrensy or fury.

That the sentiments of every individual concerning that important object, his liberty, might be known and regarded, meetings have been held, and deliberations carried on in every particular district. That the sentiments of all those individuals might gradually and regularly be collected into a single point, and the conduct of each inspired and directed by the result of the whole united, county committees—provincial conventions—a continental congress have been appointed, have met and resolved. By this means, a chain—more inestimable, and, while the necessity for it continues, we hope, more indissoluble than one of gold—a chain of freedom has been formed, of which every individual in these colonies, who is willing to preserve the greatest of human blessings, his liberty, has the pleasure of beholding himself a link.

Are these measures, sir, the brats of disloyalty, of disaffection? There are miscreants among us—wasps that suck poison from the most salubrious flowers—who tell us they are. They tell us that all those assemblies are unlawful, and unauthorized by our constitutions; and that all their deliberations and resolutions are so many transgressions of the duty of subjects. The utmost malice brooding over the utmost baseness, and nothing but such a hated commixture, must have hatched this calumny. Do not those men know—would they have others not to know—that it was impossible for the inhabitants of the same province, and for the legislatures of the different provinces, to communicate their sentiments to one another in the modes appointed for such purposes, by their different constitutions? Do not they know—would they have others not to know—that all this was rendered impossible by those very persons, who now, or whose minions now, urge this objection against us? Do not they know—would they have others not to know—that the different assemblies, who could be dissolved by the governours, were, in consequence of ministerial mandates, dissolved by them, whenever they attempted to turn their attention to the greatest objects, which, as guardians of the liberty of their constituents, could be presented to their view? The arch enemy of the human race torments Edition: current; Page: [37] them only for those actions, to which he has tempted, but to which he has not necessarily obliged them. Those men refine even upon infernal malice: they accuse, they threaten us (superlative impudence!) for taking those very steps, which we were laid under the disagreeable necessity of taking by themselves, or by those in whose hateful service they are enlisted. But let them know, that our counsels, our deliberations, our resolutions, if not authorized by the forms, because that was rendered impossible by our enemies, are nevertheless authorized by that which weighs much more in the scale of reason—by the spirit of our constitutions. Was the convention of the barons at Running Meade,1 where the tyranny of John was checked, and magna charta was signed, authorized by the forms of the constitution? Was the convention parliament, that recalled Charles the second, and restored the monarchy, authorized by the forms of the constitution? Was the convention of lords and commons, that placed King William on the throne, and secured the monarchy and liberty likewise, authorized by the forms of the constitution? I cannot conceal my emotions of pleasure, when I observe, that the objections of our adversaries cannot be urged against us, but in common with those venerable assemblies, whose proceedings formed such an accession to British liberty and British renown.

The resolutions entered into, and the recommendations given, by the continental congress, have stamped, in the plainest characters, the genuine and enlightened spirit of liberty upon the conduct observed, and the measures pursued, in consequence of them. As the invasions of our rights have become more and more formidable, our opposition to them has increased in firmness and vigour, in a just, and in no more than a just, proportion. We will not import goods from Great Britain or Ireland: in a little time we will suspend our exportations to them: and, if the same illiberal and destructive system of policy be still carried on against us, in a little time more we will not consume their manufactures. In that colony where the attacks have been most open, immediate, and direct, some farther steps have been taken, and those steps have met with the deserved approbation of the other provinces.

Is this scheme of conduct allied to rebellion? Can any symptoms of Edition: current; Page: [38] disloyalty to his majesty, of disinclination to his illustrious family, or of disregard to his authority be traced in it? Those, who would blend, and whose crimes have made it necessary for them to blend, the tyrannick acts of administration with the lawful measures of government, and to veil every flagitious procedure of the ministry under the venerable mantle of majesty, pretend to discover, and employ their emissaries to publish the pretended discovery of such symptoms. We are not, however, to be imposed upon by such shallow artifices. We know, that we have not violated the laws or the constitution; and that, therefore, we are safe as long as the laws retain their force and the constitution its vigour; and that, whatever our demeanour be, we cannot be safe much longer. But another object demands our attention.

We behold—sir, with the deepest anguish we behold—that our opposition has not been as effectual as it has been constitutional. The hearts of our oppressors have not relented: our complaints have not been heard: our grievances have not been redressed: our rights are still invaded: and have we no cause to dread, that the invasions of them will be enforced in a manner, against which all reason and argument, and all opposition of every peaceful kind, will be vain? Our opposition has hitherto increased with our oppression: shall it, in the most desperate of all contingencies, observe the same proportion?

Let us pause, sir, before we give an answer to this question: the fate of us; the fate of millions now alive; the fate of millions yet unborn depends upon the answer. Let it be the result of calmness and of intrepidity: let it be dictated by the principles of loyalty, and the principles of liberty. Let it be such, as never, in the worst events, to give us reason to reproach ourselves, or others reason to reproach us for having done too much or too little.

Perhaps the following resolution may be found not altogether unbefitting our present situation. With the greatest deference I submit it to the mature consideration of this assembly.

“That the act of the British parliament for altering the charter and constitution of the colony of Massachussetts Bay, and those ‘for the impartial administration of justice’ in that colony, for shutting the port of Boston, and for quartering soldiers on the inhabitants of the colonies, are unconstitutional and void; and can confer no authority upon those who act under colour of them. That the crown cannot, by its prerogative, alter the charter or constitution of that colony: that all attempts to alter the said Edition: current; Page: [39] charter or constitution, unless by the authority of the legislature of that colony, are manifest violations of the rights of that colony, and illegal: that all force employed to carry such unjust and illegal attempts into execution is force without authority: that it is the right of British subjects to resist such force: that this right is founded both upon the letter and the spirit of the British constitution.”

To prove, at this time, that those acts are unconstitutional and void is, I apprehend, altogether unnecessary. The doctrine has been proved fully, on other occasions, and has received the concurring assent of British America. It rests upon plain and indubitable truths. We do not send members to the British parliament: we have parliaments (it is immaterial what name they go by) of our own.

That a void act can confer no authority upon those, who proceed under colour of it, is a selfevident proposition.

Before I proceed to the other clauses, I think it useful to recur to some of the fundamental maxims of the British constitution; upon which, as upon a rock, our wise ancestors erected that stable fabrick, against which the gates of hell have not hitherto prevailed. Those maxims I shall apply fairly, and, I flatter myself, satisfactorily to evince every particular contained in the resolution.

The government of Britain, sir, was never an arbitrary government: our ancestors were never inconsiderate enough to trust those rights, which God and nature had given them, unreservedly into the hands of their princes. However difficult it may be, in other states, to prove an original contract subsisting in any other manner, and on any other conditions, than are naturally and necessarily implied in the very idea of the first institution of a state; it is the easiest thing imaginable, since the revolution of 1688, to prove it in our constitution, and to ascertain some of the material articles, of which it consists. It has been often appealed to: it has been often broken, at least on one part: it has been often renewed: it has been often confirmed: it still subsists in its full force: “it binds the king as much as the meanest subject.”a The measures of his power, and the limits, beyond which he cannot extend it, are circumscribed and regulated by the same authority, and with the same precision, as the measures of the subject’s obedience, and the limits, beyond which he is under no obligation Edition: current; Page: [40] to practise it, are fixed and ascertained. Liberty is, by the constitution, of equal stability, of equal antiquity, and of equal authority with prerogative. The duties of the king and those of the subject are plainly reciprocal: they can be violated on neither side, unless they be performed on the other.b The law is the common standard, by which the excesses of prerogative as well as the excesses of liberty are to be regulated and reformed.

Of this great compact between the king and his people, one essential article to be performed on his part is—that, in those cases where provision is expressly made and limitations set by the laws, his government shall be conducted according to those provisions, and restrained according to those limitations—that, in those cases, which are not expressly provided for by the laws, it shall be conducted by the best rules of discretion, agreeably to the general spirit of the laws, and subserviently to their ultimate end—the interest and happiness of his subjects—that, in no case, it shall be conducted contrary to the express, or to the implied principles of the constitution.

These general maxims, which we may justly consider as fundamentals of our government, will, by a plain and obvious application of them to the parts of the resolution remaining to be proved, demonstrate them to be strictly agreeable to the laws and constitution.

We can be at no loss in resolving, that the king cannot, by his prerogative, alter the charter or constitution of the colony of Massachussetts Bay. Upon what principle could such an exertion of prerogative be justified? On the acts of parliament? They are already proved to be void. On the discretionary power which the king has of acting where the laws are silent? That power must be subservient to the interest and happiness of those, concerning whom it operates. But I go farther. Instead of being supported by law, or the principles of prerogative, such an alteration is totally and absolutely repugnant to both. It is contrary to express law. The charter and constitution we speak of are confirmed by the only legislative power capable of confirming them: and no other power, but that which can ratify, can destroy. If it is contrary to express law, the consequence is necessary, that it is contrary to the principles of prerogative: for prerogative can operate only when the law is silent.

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In no view can this alteration be justified, or so much as excused. It cannot be justified or excused by the acts of parliament; because the authority of parliament does not extend to it: it cannot be justified or excused by the operation of prerogative; because this is none of the cases, in which prerogative can operate: it cannot be justified or excused by the legislative authority of the colony; because that authority never has been, and, I presume, never will be given for any such purpose.

If I have proceeded hitherto, as I am persuaded I have, upon safe and sure ground, I can, with great confidence, advance a step farther, and say, that all attempts to alter the charter or constitution of that colony, unless by the authority of its own legislature, are violations of its rights, and illegal.

If those attempts are illegal, must not all force, employed to carry them into execution, be force employed against law, and without authority? The conclusion is unavoidable.

Have not British subjects, then, a right to resist such force—force acting without authority—force employed contrary to law—force employed to destroy the very existence of law and of liberty? They have, sir, and this right is secured to them both by the letter and the spirit of the British constitution, by which the measures and the conditions of their obedience are appointed. The British liberties, sir, and the means and the right of defending them, are not the grants of princes; and of what our princes never granted they surely can never deprive us.

I beg leave, here, to mention and to obviate some plausible but ill founded objections, that have been, and will be, held forth by our adversaries, against the principles of the resolution now before us. It will be observed, that those employed for bringing about the proposed alteration in the charter and constitution of the colony of Massachussetts Bay act by virtue of a commission for that purpose from his majesty: that all resistance of forces commissioned by his majesty, is resistance of his majesty’s authority and government, contrary to the duty of allegiance, and treasonable. These objections will be displayed in their most specious colours: every artifice of chicanery and sophistry will be put in practice to establish them: law authorities, perhaps, will be quoted and tortured to prove them. Those principles of our constitution, which were designed to preserve and to secure the liberty of the people, and, for the sake of that, the tranquillity of government, will Edition: current; Page: [42] be perverted on this, as they have been on many other occasions, from their true intention; and will be made use of for the contrary purpose of endangering the latter, and destroying the former. The names of the most exalted virtues, on one hand, and of the most atrocious crimes, on the other, will be employed in direct contradiction to the nature of those virtues, and of those crimes: and, in this manner; those who cannot look beyond names, will be deceived; and those, whose aim it is to deceive by names, will have an opportunity of accomplishing it. But, sir, this disguise will not impose upon us. We will look to things as well as to names: and, by doing so, we shall be fully satisfied, that all those objections rest upon mere verbal sophistry, and have not even the remotest alliance with the principles of reason or of law.

In the first place, then, I say, that the persons who allege, that those, employed to alter the charter and constitution of Massachussetts Bay, act by virtue of a commission from his majesty for that purpose, speak improperly, and contrary to the truth of the case. I say, they act by virtue of no such commission: I say, it is impossible they can act by virtue of such a commission. What is called a commission either contains particular directions for the purpose mentioned; or it contains no such particular directions. In neither case can those, who act for that purpose, act by virtue of a commission. In one case, what is called a commission is void; it has no legal existence; it can communicate no authority. In the other case, it extends not to the purpose mentioned. The latter point is too plain to be insisted on—I prove the former.

“Id rex potest,” says the law, “quod de jure potest.”c 2 The king’s power is a power according to law. His commands, if the authority of Lord Chief Justice Haled 3 may be depended upon, are under the directive power of the law; and consequently invalid, if unlawful. Commissions, says my Lord Coke,e are legal; and are like the king’s writs; and none are lawful, but such as are allowed by the common law, or warranted by some act of parliament.

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Let us examine any commission expressly directing those to whom it is given, to use military force for carrying into execution the alterations proposed to be made in the charter and constitution of Massachussetts Bay, by the foregoing maxims and authorities; and what we have said concerning it will appear obvious and conclusive. It is not warranted by any act of parliament; because, as has been mentioned on this, and has been proved on other occasions, any such act is void. It is not warranted, and I believe it will not be pretended that it is warranted, by the common law. It is not warranted by the royal prerogative; because, as has already been fully shown, it is diametrically opposite to the principles and the ends of prerogative. Upon what foundation, then, can it lean and be supported? Upon none. Like an enchanted castle, it may terrify those, whose eyes are affected by the magick influence of the sorcerers, despotism and slavery: but so soon as the charm is dissolved, and the genuine rays of liberty and of the constitution dart in upon us, the formidable appearance vanishes, and we discover that it was the baseless fabrick of a vision, that never had any real existence.

I have dwelt the longer upon this part of the objections urged against us by our adversaries; because this part is the foundation of all the others. We have now removed it; and they must fall of course. For if the force, acting for the purposes we have mentioned, does not act, and cannot act, by virtue of any commission from his majesty, the consequence is undeniable, that it acts without his majesty’s authority; that the resistance of it is no resistance of his majesty’s authority; nor incompatible with the duties of allegiance.

And now, sir, let me appeal to the impartial tribunal of reason and truth—let me appeal to every unprejudiced and judicious observer of the laws of Britain, and of the constitution of the British government—let me appeal, I say, whether the principles on which I argue, or the principles on which alone my arguments can be opposed, are those which ought to be adhered to and acted upon—which of them are most consonant to our laws and liberties—which of them have the strongest, and are likely to have the most effectual, tendency to establish and secure the royal power and dignity.

Are we deficient in loyalty to his majesty? Let our conduct convict, for it will fully convict, the insinuation, that we are, of falsehood. Our loyalty Edition: current; Page: [44] has always appeared in the true form of loyalty—in obeying our sovereign according to law:f let those, who would require it in any other form, know, that we call the persons who execute his commands, when contrary to law, disloyal and traitors. Are we enemies to the power of the crown? No, sir: we are its best friends: this friendship prompts us to wish, that the power of the crown may be firmly established on the most solid basis: but we know, that the constitution alone will perpetuate the former, and securely uphold the latter. Are our principles irreverent to majesty? They are quite the reverse: we ascribe to it perfection, almost divine. We say, that the king can do no wrong: we say, that to do wrong is the property, not of power, but of weakness. We feel oppression; and will oppose it; but we know—for our constitution tells us—that oppression can never spring from the throne. We must, therefore, search elsewhere for its source: our infallible guide will direct us to it. Our constitution tells us, that all oppression springs from the ministers of the throne. The attributes of perfection, ascribed to the king, are, neither by the constitution, nor in fact, communicable to his ministers. They may do wrong: they have often done wrong: they have been often punished for doing wrong.

Here we may discern the true cause of all the impudent clamour and unsupported accusations of the ministers and of their minions, that have been raised and made against the conduct of the Americans. Those ministers and minions are sensible, that the opposition is directed, not against his majesty, but against them: because they have abused his majesty’s confidence, brought discredit upon his government, and derogated from his justice. They see the publick vengeance collected in dark clouds around them: their consciences tell them, that it should be hurled, like a thunder bolt, at their guilty heads. Appalled with guilt and fear, they skulk behind the throne. Is it disrespectful to drag them into publick view, and make a distinction between them and his majesty, under whose venerable name Edition: current; Page: [45] they daringly attempt to shelter their crimes? Nothing can more effectually contribute to establish his majesty on the throne, and to secure to him the affections of his people, than this distinction. By it we are taught to consider all the blessings of government as flowing from the throne; and to consider every instance of oppression as proceeding, which in truth is oftenest the case, from the ministers.

If, now, it is true, that all force employed for the purposes so often mentioned, is force unwarranted by any act of parliament; unsupported by any principle of the common law; unauthorized by any commission from the crown—that, instead of being employed for the support of the constitution and his majesty’s government, it must be employed for the support of oppression and ministerial tyranny—if all this is true—and I flatter myself it appears to be true—can any one hesitate to say, that to resist such force is lawful: and that both the letter and the spirit of the British constitution justify such resistance?

Resistance, both by the letter and the spirit of the British constitution, may be carried farther, when necessity requires it, than I have carried it. Many examples in the English history might be adduced, and many authorities of the greatest weight might be brought, to show, that when the king, forgetting his character and his dignity, has stepped forth, and openly avowed and taken a part in such iniquitous conduct as has been described; in such cases, indeed, the distinction above mentioned, wisely made by the constitution for the security of the crown, could not be applied; because the crown had unconstitutionally rendered the application of it impossible. What has been the consequence? The distinction between him and his ministers has been lost: but they have not been raised to his situation: he has sunk to theirs.

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An Address to the Inhabitants of the Colonies (1776).*

an address to the inhabitants of the colonies of new hampshire, massachusetts bay, rhode island and providence plantations, connecticut, new york, new jersey, pennsylvania, the counties of newcastle, kent and sussex on delaware, maryland, virginia, north carolina, south carolina and georgia from their delegates in congress. [13 february, 1776.]

Friends and Countrymen—

History, we believe, cannot furnish an Example of a Trust, higher and more important than that, which we have received from your Hands. It comprehends in it every Thing that can rouse the Attention and interest the Passions of a People, who will not reflect Disgrace upon their Ancestors nor degrade themselves, nor transmit Infamy to their Descendants. It is committed to us at a Time when every Thing dear and valuable to such a People is in imminent Danger. This Danger arises from those, whom we have been accustomed to consider as our Friends; who really were so, while they continued friendly to themselves; and who will again be so, when they shall return to a just Sense of their own Interests. The Calamities, which threaten us, would be attended with a total Loss of those Constitutions, formed upon the venerable Model of British Liberty, which have been long our Pride and Felicity. To avert those Calamities we are under the disagreeable Necessity of making temporary Deviations from those Constitutions.

Such is the Trust reposed in us. Much does it import you and us, that it be executed with Skill and with Fidelity. That we have discharged it with Edition: current; Page: [47] Fidelity, we enjoy the Testimony of a good Conscience. How far we have discharged it with Skill must be determined by you, who are our Principals and Judges, to whom we esteem it our Duty to render an Account of our Conduct. To enable you to judge of it, as we would wish you to do, it is necessary that you should be made acquainted with the Situation, in which your Affairs have been placed; the Principles, on which we have acted; and the Ends, which we have kept and still keep in View.

That all Power was originally in the People—that all the Powers of Government are derived from them—that all Power, which they have not disposed of, still continues theirs—are Maxims of the English Constitution, which, we presume, will not be disputed. The Share of Power, which the King derives from the People, or, in other Words, the Prerogative of the Crown, is well known and precisely ascertained: It is the same in Great Britain and in the Colonies. The Share of Power, which the House of Commons derives from the People, is likewise well known: The Manner in which it is conveyed is by Election. But the House of Commons is not elected by the Colonists; and therefore, from them that Body can derive no Authority.

Besides; the Powers, which the House of Commons receives from its Constituents, are entrusted by the Colonies to their Assemblies in the several Provinces. Those Assemblies have Authority to propose and assent to Laws for the Government of their Electors, in the same Manner as the House of Commons has Authority to propose and assent to Laws for the Government of the Inhabitants of Great Britain. Now the same collective Body cannot delegate the same Powers to distinct representative Bodies. The undeniable Result is, that the House of Commons neither has nor can have any Power deriv’d from the Inhabitants of these Colonies.

In the Instance of imposing Taxes, this Doctrine is clear and familiar: It is true and just in every other Instance. If it would be incongruous and absurd, that the same Property should be liable to be taxed by two Bodies independent of each other; would less Incongruity and Absurdity ensue, if the same Offense were to be subjected to different and perhaps inconsistent Punishments? Suppose the Punishment directed by the Laws of one Body to be Death, and that directed by those of the other Body be Banishment for Life; how could both Punishments be inflicted?

Though the Crown possesses the same Prerogative over the Colonies, which it possesses over the Inhabitants of Great Britain: Though the Colonists Edition: current; Page: [48] delegate to their Assemblies the same Powers which our Fellow Subjects in Britain delegate to the House of Commons: Yet by some inexplicable Mystery in Politics, which is the Foundation of the odious System that we have so much Reason to deplore, additional Powers over you are ascribed to the Crown, as a Branch of the British Legislature: And the House of Commons—a Body which acts solely by derivative Authority—is supposed entitled to exert over you an Authority, which you cannot give, and which it cannot receive.

The Sentence of universal Slavery gone forth against you is; that the British Parliament have Power to make Laws, without your Consent, binding you in all Cases whatever. Your Fortunes, your Liberties, your Reputations, your Lives, every Thing that can render you and your Posterity happy, all are the Objects of the Laws: All must be enjoyed, impaired or destroyed as the Laws direct. And are you the Wretches, who have Nothing that you can or ought to call your own? Were all the rich Blessings of Nature, all the Bounties of indulgent Providence poured upon you, not for your own Use; but for the Use of those, upon whom neither Nature nor Providence hath bestowed Qualities or Advantages superior to yours?

From this Root of Bitterness numerous are the Branches of Oppression that have sprung. Your most undoubted and highest-priz’d Rights have been invaded: Heavy and unnecessary Burthens have been imposed on you: Your Interests have been neglected, and sometimes wantonly sacrificed to the Interests, and even to the Caprice of others. When you felt, for your Enemies have not yet made any Laws to divest you of feeling, Uneasiness under your Grievances, and expressed it in the natural Tone of Complaint; your Murmurs were considered and treated as the Language of Faction; and your Uneasiness was ascribed to a restive Disposition, impatients of Controul.

In proportion, however, as your Oppressions were multiplied and increased, your Opposition to them became firm and vigourous. Remonstrances succeeded Petitions: A Resolution carried into Effect, not to import Goods from Great Britain succeeded both. The Acts of Parliament then complained of were in Part, repealed. Your Good-Humour and unsuspicious Fondness returned. Short—alas! too short—was the Season allowed for indulging them. The former System of Rigour was renewed.

The Colonies, wearied with presenting fruitless Supplications and Petitions separately; or prevented, by arbitrary and abrupt Dissolutions of Edition: current; Page: [49] their Assemblies, from using even those fruitless Expedients for Redress, determined to join their Counsels and their Efforts. Many of the Injuries flowing from the unconstitutional and ill-advised Acts of the British Legislature, affected all the Provinces equally; and even in those Cases, in which the Injuries were confined, by the Acts, to one or to a few, the Principles, on which they were made, extended to all. If common Rights, common Interests, common Dangers and common Sufferings are Principles of Union, what could be more natural than the Union of the Colonies?

Delegates authorised by the several Provinces from Nova Scotia to Georgia to represent them and act in their Behalf, met in GENERAL CONGRESS.

It has been objected, that this Measure was unknown to the Constitution; that the Congress was, of Consequence, an illegal Body; and that its Proceedings could not, in any Manner, be recognised by the Government of Britain. To those, who offer this Objection, and have attempted to vindicate, by its supposed Validity, the Neglect and Contempt, with which the Petition of that Congress to his Majesty was treated by the Ministry, we beg Leave, in our Turn, to propose, that they would explain the Principles of the Constitution, which warranted the Assembly of the Barons at Runningmede, when Magna Charta was signed, the Convention-Parliament that recalled Charles 2d, and the Convention of Lords and Commons that placed King William on the Throne. When they shall have done this, we shall perhaps, be able to apply their Principles to prove the Necessity and Propriety of a Congress.

But the Objections of those, who have done so much and aimed so much against the Liberties of America, are not confined to the Meeting and the Authority of the Congress: They are urged with equal Warmth against the Views and Inclinations of those who composed it. We are told, in the Name of Majesty itself, “that the Authors and Promoters of this desperate Conspiracy,” as those who have framed his Majesty’s Speech are pleased to term our laudable Resistance; “have, in the Conduct of it, derived great Advantage from the Difference of his Majesty’s Intentions and theirs. That they meant only to amuse by vague Expressions of Attachment to the Parent State, and the strongest Protestations of Loyalty to the King, whilst they were preparing for a general Revolt. That on the Part of his Majesty and the Parliament, the Wish was rather to reclaim than to subdue.” It affords us some Pleasure to find that the Protestations of Loyalty to his Majesty, which have been made, are allowed to be strong; and Edition: current; Page: [50] that Attachment to the Parent State is owned to be expressed. Those Protestations of Loyalty and Expressions of Attachment ought, by every Rule of Candour, to be presumed to be sincere, unless Proofs evincing their Insincerity can be drawn from the Conduct of those who used them.

In examining the Conduct of those who directed the Affairs of the Colonies at the Time when, it is said, they were preparing for a general Revolt, we find it an easy Undertaking to shew, that they merited no Reproach from the British Ministry by making any Preparations for that Purpose. We wish it were as easy to shew, that they merited no Reproach from their Constituents, by neglecting the necessary Provisions for their Security. Has a single Preparation been made, which has not been found requisite for our Defense? Have we not been attacked in Places where fatal Experience taught us, we were not sufficiently prepared for a successful Opposition? On which Side of this unnatural Controversy was the ominous Intimation first given, that it must be decided by Force? Were Arms and Ammunition imported into America, before the Importation of them was prohibited? What Reason can be assigned for this Prohibition, unless it be this, that those who made it had determined upon such a System of Oppression, as they knew, would force the Colonies into Resistance? And yet, they “wished only to reclaim!”

The Sentiments of the Colonies, expressed in the Proceedings of their Delegates assembled in 1774 were far from being disloyal or disrespectful. Was it disloyal to offer a Petition to your Sovereign? Did your still anxious Impatience for [an] answer, which your Hopes, founded only on your Wishes, as you too soon experienced, flattered you would be a gracious one—did this Impatience indicate a Disposition only to amuse? Did the keen Anguish, with which the Fate of the Petition filled your Breasts, betray an Inclination to avail yourselves of the Indignity with which you were treated, for forwarding favourite Designs of Revolt?

Was the Agreement not to import Merchandise from Great Britain or Ireland; nor after the tenth Day of September last, to export our Produce to those Kingdoms and the West Indies—was this a disrespectful or an hostile Measure? Surely we have a Right to withdraw or to continue our own Commerce. Though the British Parliament have exercised a Power of directing and restraining our Trade; yet, among all their extraordinary Pretensions, we recollect no Instance of their attempting to force it contrary Edition: current; Page: [51] to our Inclinations. It was well known, before this Measure was adopted, that it would be detrimental to our own Interest, as well as to that of our fellow-Subjects. We deplored it on both Accounts. We deplored the Necessity that produced it. But we were willing to sacrifice our Interest to any probable Method of regaining the Enjoyment of those Rights, which, by Violence and Injustice, had been infringed.

Yet even this peaceful Expedient, which Faction surely never suggested, has been represented, and by high Authority too, as a seditious and unwarrantable Combination. We are, we presume, the first Rebels and Conspirators, who commenced their Conspiracy and Rebellion with a System of Conduct, immediately and directly frustrating every Aim, which Ambition or Rapaciousness could propose: Those, whose Fortunes are desperate, may upon slight Evidence be charged with desperate Designs: But how improbable is it, that the Colonists, who have been happy, and have known their Happiness in the quiet Possession of their Liberties; who see no Situation more to be desired than that, in which, till lately, they have been placed; and whose warmest Wish is to be re-instaled in the Enjoyment of that Freedom, which they claim and are entitled to as Men and as British Subjects—how improbable it is that such would, without any Motives that could tempt even the most profligate Minds to Crimes, plunge themselves headlong into all the Guilt and Danger and Distress with which those that endeavour to overturn the Constitution of their Country are always surrounded and frequently overwhelmed?

The humble unaspiring Colonists asked only for “Peace, Liberty and Safety.” This, we think, was a reasonable Request: Reasonable as it was, it has been refused. Our ministerial Foes, dreading the Effects, which our commercial Opposition might have upon their favourite Plan of reducing the Colonies to Slavery, were determined not to hazard it upon that Issue. They employed military Force to carry it into Execution. Opposition of Force by Force, or unlimited Subjection was now our only Alternative. Which of them did it become Freemen determined never to surrender that Character, to chuse? The Choice was worthily made. We wish for Peace—we wish for Safety: But we will not, to obtain either or both of them, part with our Liberty. The sacred Gift descended to us from our Ancestors: We cannot dispose of it: We are bound by the strongest Ties to transmit it, as we have received it, pure and inviolate to our Posterity.

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We have taken up Arms in the best of Causes. We have adhered to the virtuous Principles of our Ancestors, who expressly stipulated, in their Favour, and in ours, a Right to resist every Attempt upon their Liberties. We have complied with our Engagements to our Sovereign. He should be the Ruler of a free People: We will not, as far as his Character depends upon us, permit him to be degraded into a Tyrant over Slaves.

Our Troops are animated with the Love of Freedom. They have fought and bled and conquered in the Discharge of their Duty as good Citizens as well as brave Soldiers. Regardless of the Inclemency of the Seasons, and of the Length and Fatigue of the March, they go, with Chearfulness, wherever the Cause of Liberty and their Country requires their Service. We confess that they have not the Advantages arising from Experience and Discipline: But Facts have shewn, that native Courage warmed with Patriotism, is sufficient to counterbalance these Advantages. The Experience and Discipline of our Troops will daily increase: Their Patriotism will receive no Diminution: The longer those, who have forced us into this War, oblige us to continue it, the more formidable we shall become.

The Strength and Resources of America are not confined to Operations by Land. She can exert herself likewise by Sea. Her Sailors are hardy and brave: She has all the Materials for Shipbuilding: Her Artificers can Work them into Form. We pretend not to vie with the Royal Navy of England though that Navy had its Beginnings: But still we may be able in a great Measure to defend our own Coasts, and may intercept, as we have been hitherto successful in doing, Transports and Vessels laden with Stores and Provisions.

Possessed of so many Advantages; favoured with the Prospect of so many more; Threatened with the Destruction of our constitutional Rights; cruelly and illiberally attacked, because we will not subscribe to our own Slavery; ought we to be animated with Vigour, or to sink into Despondency? When the Forms of our Governments are, by those entrusted with the Direction of them, perverted from their original Design; ought we to submit to this Perversion? Ought we to sacrifice the Forms, when the Sacrifice becomes necessary for preserving the Spirit of our Constitution? Or ought we to neglect and neglecting, to lose the Spirit by a superstitious Veneration for the Forms? We regard those Forms, and wish to preserve them as long as we can consistently with higher Objects: But much more Edition: current; Page: [53] do we regard essential Liberty, which, at all Events, we are determined not to lose, but with our Lives. In contending for this Liberty, we are willing to go through good Report, and through evil Report.

In our present Situation, in which we are called to oppose an Attack upon your Liberties, made under bold Pretentions of Authority from that Power, to which the executive Part of Government is, in the ordinary Course of affairs, committed—in the Situation, every Mode of Resistance, though directed by Necessity and by Prudence, and authorised by the Spirit of the Constitution, will be exposed to plausible Objections drawn from its Forms. Concerning such Objections, and the Weight that may be allowed to them, we are little solicitous. It will not discourage us to find ourselves represented as “labouring to enflame the Minds of the People of America, and openly avowing Revolt, Hostility and Rebellion.” We deem it an Honour to “have raised Troops, and collected a naval Force”; and, cloathed with the sacred Authority of the People, from whom all legitimate Authority proceeds “to have exercised legislative, executive and judicial Powers.” For what Purposes were those Powers instituted? For your Safety and Happiness. You and the World will judge whether those Purposes have been best promoted by us; or by those who claim the Powers, which they charge us with assuming.

But while we feel no Mortification at being misrepresented with Regard to the Measures employed by us for accomplishing the great Ends, which you have appointed us to pursue; we cannot sit easy under an Accusation, which charges us with laying aside those Ends, and endeavouring to accomplish such as are very different. We are accused of carrying on the War “for the Purpose of establishing an independent Empire.”

We disavow the Intention. We declare, that what we aim at, and what we are entrusted by you to pursue, is the Defence and the Re-establishment of the constitutional Rights of the Colonies. Whoever gives impartial Attention to the Facts, we have already stated, and to the Observations we have already made, must be fully convinced that all the Steps, which have been taken by us in this unfortunate Struggle, can be accounted for as rationally and as satisfactorily by supposing that the Defence and Re-establishment of their Rights were the Objects which the Colonists and their Representatives had in View; as by supposing that an independent Empire was their Aim. Nay, we may safely go farther and affirm, without the most Edition: current; Page: [54] distant Apprehension of being refuted, that many of those steps can be accounted for rationally and satisfactorily only upon the former Supposition, and cannot be accounted for, in that Manner, upon the latter. The numerous Expedients that were tried, though fruitlessly, for avoiding Hostilities: The visible and unfeigned Reluctance and Horrour, with which we entered into them: The Caution and Reserve, with which we have carried them on: The Attempts we have made by petitioning the Throne and by every other Method, which might probably, or could possibly be of any Avail for procuring an accommodation—These are not surely the usual Characteristics of Ambition.

In what Instance have we been the Aggressors? Did our Troops take the Field before the ministerial Forces began their hostile March to Lexington and Concord? Did we take Possession, or did we form any Plan for taking Possession of Canada, before we knew that it was a Part of the ministerial System to pour the Canadians upon our Frontiers? Did we approach the Canadians, or have we treated them as Enemies? Did we take the Management of the Indian Tribes into our Hands, before we were well assured that the Emissaries of Administration were busy in persuading them to strike us? When we treated with them, did we imitate the barbarous Example? Were not our Views and Persuasions confined to keeping them in a State of Neutrality? Did we seise any Vessel of our Enemies, before our Enemies had seised some of ours? Had we yet seised any, except such as were employed in the Service of Administration, and in supplying those that were in actual Hostilities against us? Cannot our whole Conduct be reconciled to Principles and Views of Self-Defence? Whence then the uncandid Imputation of aiming at an independent Empire?

Is no regard to be had to the Professions and Protestations made by us, on so many different Occasions, of Attachment to Great Britain, of Allegiance to his Majesty; and of Submission to his Government upon the Terms, on which the Constitution points it out as a Duty, and on which alone a British Sovereign has the Right to demand it?

When the Hostilities commenced by the ministerial Forces in Massachusetts Bay, and the imminent Dangers threatening the other Colonies rendered it absolutely necessary that they should be put into a State of Defence—even on that Occasion, we did not forget our Duty to his Majesty, and our Regard for our fellow Subjects in Britain. Our words are Edition: current; Page: [55] these: “But as we most ardently wish for a Restoration of the Harmony formerly subsisting between our Mother-Country and these Colonies, the Interruption of which must at all Events, be exceedingly injurious to both Countries: Resolved, that with a sincere Design of contributing, by all Means in our Power, not incompatible with a just Regard for the undoubted Rights and true Interests of these Colonies, to the Promotion of this most desirable Reconciliation, an humble and dutiful Address be presented to his Majesty.”

If the Purposes of establishing an independent Empire had lurked in our Breasts, no fitter Occasion could have been found for giving Intimations of them, than in our Declaration setting forth the Causes and Necessity of our taking up Arms. Yet even there no Pretence can be found for fixing such an Imputation on us. “Lest this Declaration should disquiet the Minds of our Friends and fellow Subjects in any Part of the Empire, we assure them that we mean not to dissolve that Union, which has so long and so happily subsisted between us, and which we sincerely wish to see restored. Necessity has not yet driven us into that desperate Measure, or induced us to excite any other Nation to war against them. We have not raised Armies with the ambitious Designs of separating from Great Britain, and establishing independent States.” Our Petition to the King has the following Asseveration: “By such Arrangements as your Majesty’s Wisdom can form for collecting the united Sense of your American People, we are convinced your Majesty would receive such satisfactory Proofs of the Disposition of the Colonists towards their Sovereign and the Parent State, that the wished for Opportunity would be soon restored to them, of evincing the Sincerity of their Professions by every Testimony of Devotion becoming the most dutiful Subjects and the most affectionate Colonists.” In our Address to the Inhabitants of Great Britain, we say: “We are accused of aiming at Independence: But how is this Accusation supported? By the Allegations of your Ministers, not by our Actions. Give us leave, most solemnly to assure you, that we have not yet lost Sight of the Object we have ever had in View, a Reconciliation with you on constitutional Principles, and a Restoration of that friendly Intercourse, which to the Advantage of both we till lately maintained.”

If we wished to detach you from your Allegiance to his Majesty, and to wean your Affections from a Connexion with your fellow-Subjects in Edition: current; Page: [56] Great Britain, is it likely that we would have taken so much Pains, upon every proper Occasion, to place those Objects before you in the most agreeable Points of View?

If any equitable Terms of Accommodation had been offered us, and we had rejected them, there would have been some Foundation for the Charge that we endeavoured to establish an independent Empire. But no Means have been used either by Parliament or by Administration for the Purpose of bringing this Contest to a Conclusion besides Penalties directed by Statutes, or Devastations occasioned by War. Alas! how long will Britons forget that Kindred-Blood flows in your Veins? How long will they strive, with hostile Fury to sluice it out from Bosoms that have already bled in their Cause; and, in their Cause, would still be willing to pour out what remains, to the last precious Drop?

We are far from being insensible of the Advantages, which have resulted to the Colonies as well as to Britain from the Connexion which has hitherto subsisted between them: We are far from denying them, or wishing to lessen the Ideas of their Importance. But the Nature of this Connexion, and the Principles, on which it was originally formed and on which alone it can be maintained, seem unhappily to have been misunderstood or disregarded by those, who laid or conducted the late destructive Plan of Colony-Administration. It is a Connexion founded upon mutual Benefits; upon Religion, Laws, Manners, Customs and Habits common to both Countries. Arbitrary Exertions of Power on the Part of Britain, and servile Submission on the [part of the] Colonies, if the Colonies should ever become degenerate enough to [accept] it, would immediately rend every generous Bond asunder. An intimate Connexion between Freemen and Slaves cannot be continued without Danger and, at last, Destruction to the former. Should your Enemies be able to reduce you to Slavery, the baneful Contagion would spread over the whole Empire. We verily believe that the Freedom, Happiness, and Glory of Great Britain, and the Prosperity of his Majesty and his Family depend upon the Success of your Resistance. You are now expending your Blood, and your Treasure in promoting the Welfare and the true Interests of your Sovereign and your fellow-Subjects in Britain, in Opposition to the most dangerous Attacks that have been ever made against them.

The Ideas of deriving Emolument to the Mother Country by taxing Edition: current; Page: [57] you, and depriving you of your Constitutions and Liberties were not introduced till lately. The Experiments, to which those Ideas have given Birth, have proved disastrous: The Voice of Wisdom calls loudly that they should be laid aside. Let them not, however, be removed from View. They may serve as Beacons to prevent future Shipwrecks.

Britain and these Colonies have been Blessings to each other. Sure we are, that they might continue to be so. Some salutary System might certainly be devised, which would remove from both Sides, Jealousies that are ill-founded, and Causes of Jealousies that are well-founded; which would restore to both Countries those important Benefits that Nature seems to have intended them reciprocally to confer and to receive; and which would secure the Continuance and the Encrease of those Benefits to numerous succeeding Generations. That such a System may be formed is our ardent Wish.

But as such a System must affect the Interest of the Colonies as much as that of the Mother-Country, why should the Colonies be excluded from a Voice in it? Should not, to say the least upon this Subject, their Consent be asked and obtained as to the general Ends, which it ought to be calculated to answer? Why should not its Validity depend upon us as well as upon the Inhabitants of Great Britain? No Disadvantage will result to them: An important Advantage will result to [us]. We shall be affected by no Laws, the Authority of which, as far as they regard us, is not founded on our own Consent. This Consent may be expressed as well by a solemn Compact, as if the Colonists, by their Representatives, had an immediate Voice in passing the Laws. In a Compact we would concede liberally to Parliament: For the Bounds of our Concessions would be known.

We are too much attached to the English Laws and Constitution, and know too well their happy Tendency to diffuse Freedom, Prosperity and Peace wherever they prevail, to desire an independent Empire. If one Part of the Constitution be pulled down, it is impossible to foretell whether the other Parts of it may not be shaken, and, perhaps, overthrown. It is a Part of our Constitution to be under Allegiance to the Crown, Limited and ascertained as the Prerogative is, the Position—that a King can do no wrong—may be founded in Fact as well as in Law, if you are not wanting to yourselves.

We trace your Calamities to the House of Commons. They have undertaken Edition: current; Page: [58] to give and grant your Money. From a supposed virtual Representation in their House it is argued, that you ought to be bound by the Acts of the British Parliament in all Cases whatever. This is no Part of the Constitution. This is the Doctrine, to which we will never subscribe our Assent: This is the Claim, to which we adjure you, as you tender your own Freedom and Happiness, and the Freedom and Happiness of your Posterity, never to submit. The same Principles, which directed your Ancestors to oppose the exorbitant and dangerous Pretensions of the Crown, should direct you to oppose the no less exorbitant and dangerous Claims of the House of Commons. Let all Communication of despotic Power through that Channel be cut off, and your Liberties will be safe.

Let neither our Enemies nor our Friends make improper Inferences from the Solicitude, which we have discovered to remove the Imputation of aiming to establish an independent Empire. Though an independent Empire is not our Wish; it may—let your Oppressors attend—it may be the Fate of our Countrymen and ourselves. It is in the Power of your Enemies to render Independency or Slavery your and our Alternative. Should we—will you, in such an Event, hesitate a Moment about the Choice? Let those, who drive us to it, answer to their King and to their Country for the Consequences. We are desirous to continue Subjects: But we are determined to continue Freemen. We shall deem ourselves bound to renounce; and, we hope, you will follow our Example in renouncing the former Character whenever it shall become incompatible with the latter.

While we shall be continued by you in the very important Trust, which you have committed to us, we shall keep our Eyes constantly and steadily fixed upon the Grand Object of the Union of the Colonies—the Reestablishment and Security of their constitutional Rights. Every measure that we employ shall be directed to the Attainment of this great End: No Measure, necessary, in our Opinion, for attaining it, shall be declined. If any such Measure should, against our principal Intention, draw the Colonies into Engagements that may suspend or dissolve their Union with their fellow-Subjects in Great Britain, we shall lament the Effect; but shall hold ourselves justified in adopting the Measure. That the Colonies may continue connected, as they have been, with Britain, is our second Wish: Our first is—that America may be free.

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An Address to the Inhabitants of the Colonies Submitted to the Continental Congress.

The manuscript of this, in Wilson’s handwriting, is in the Papers of the Continental Congress, Library of Congress, No. 24, ff. 217–232. It is reprinted in the Library of Congress edition of the Journals of the Continental Congress, IV, 134–46. The Committee of which this was the report, was appointed by a resolution of January 24th, 1776, and consisted of John Dickinson, James Wilson, William Hooper, James Duane and Robert Alexander. A note by James Madison to a copy of this paper reads, “This address was drawn by Mr. Wilson, who informed the transcriber that it was meant to lead the public mind into the idea of Independence, of which the necessity was plainly foreseen by Congress: but that before it could be carried through Congress, the language became evidently short of the subsisting maturity for that measure, and the Address was in consequence dropped” Worthington C. Ford, ed. Journals of the Continental Congress, IV, 146.

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Considerations on the Bank of North America 1785.a

An attack is made on the credit and institution of the Bank of North America. Whether this attack is justified by the principles of law and sound policy, is a natural subject of inquiry. The inquiry is as necessary and interesting, as it is natural: for, though some people represent the bank as injurious and dangerous, while others consider it as salutary and beneficial to the community, all view it as an object of high importance; deserving and demanding the publick attention.

In the investigation of this subject, it will be requisite to discuss some great and leading questions concerning the constitution of the United States, and the relation which subsists between them and each particular state in the Union. Perhaps it is to be wished that this discussion had not been rendered necessary; and that those questions had rested some time longer among the arcana imperii:1 but they are now presented to the publick; and the publick should view them with firmness, with impartiality, and with all the solicitude befitting such a momentous occasion.

A gentleman,b who had the best opportunities of observing, and who possesses the best talents for judging on the subject, informs his fellow citizens offcially, that “it may be not only asserted, but demonstrated, that, without the establishment of the national bank, the business of the department of finance could not have been performed” in the late war.

The millennium is not yet come. War, with all the horrours and miseries Edition: current; Page: [61] in his train, may revisit us. The finances may again be deranged: “publick credit may, again, be at an end: no means may be afforded adequate to the publick expenses.” Is it wise or politick to deprive our country, in such a situation, of a resource, which happy experience has shown to be of such essential importance? Will the citizens of the United States be encouraged to embark their fortunes on a similar bottom in a future war, by seeing the vessel, which carried us so successfully through the last, thrown aside, like a useless hulk, upon the return of peace?

It will not be improper to recal to our remembrance the origin, the establishment, and the proceedings of the Bank of North America.

In May, 1781, the superintendant of finance laid before congress a plan of a bank. On the 26th of that month, congress passed the following resolution concerning it.

Resolved, That congress do approve of the plan for establishing a national bank in these United States, submitted to their consideration by Mr. Robert Morris,3 the 17th May, 1781, and that they will promote and support the same by such ways and means, from time to time, as may appear necessary for the institution, and consistent with the publick good.

That the subscribers to the said bank shall be incorporated, agreeably to the principles and terms of the plan, under the name of “The President, Directors, and Company of the Bank of North America,” so soon as the subscription shall be filled, the directors and president chosen, and application made to congress for that purpose, by the president and directors elected.

Resolved, That it be recommended to the several States, by proper laws for that purpose, to provide that no other bank or bankers shall be established or permitted within the said states respectively during the war.

Resolved, That the notes hereafter to be issued by the said bank, payable on demand, shall be receivable in payment of all taxes, duties, and debts, due or that may become due or payable to the United States.

Resolved, that congress will recommend to the several legislatures to pass laws, making it felony without benefit of clergy, for any person to counterfeit bank notes, or to pass such notes, knowing them to be counterfeit; also making it felony without benefit of clergy, for any president, inspector, director, officer, or servant of the bank, to convert any of the property, money, or credit Edition: current; Page: [62] of the said bank to his own use, or in any other way to be guilty of fraud or embezzlement, as officers or servants of the bank.

Under these resolutions a subscription was opened for the national bank: this subscription was not confined to Pennyslvania: the citizens of other States trusted their property to the publick faith; and before the end of December, 1781, the subscription was filled, “from an expectation of a charter of incorporation from congress.” Application was made to congress by the president and directors, then chosen, for an act of incorporation. “The exigencies of the United States rendered it indispensably necessary that such an act should be immediately passed.” Congress, at the same time that they passed the act of incorporation, recommended to the legislature of each state, to pass such laws as they might judge necessary for giving its ordinance its full operation, agreeably to the true intent and meaning thereof, and according to the recommendations contained in the resolution of the 26th day of May preceding.

The bank immediately commenced its operations. Its seeds were small, but they were vigorous. The sums paid in by individuals upon their subscriptions did not amount in the whole, to seventy thousand dollars. The sum invested by the United States, in bank stock, amounted to something more than two hundred and fifty thousand dollars: but this sum may be said to have been paid in with one hand and borrowed with the other; and before the end of the first three months, farther sums were advanced to the United States, and an advance was made to this state. Besides, numerous accommodations were afforded to individuals. Little was it then imagined that the bank would ever be represented as unfriendly to circulation. It was viewed as the source and as the support of credit, both private and publick: as such, it was hated and dreaded by the enemies of the United States: as such, it was loved and fostered by their friends.

Pennsylvania, distinguished on numerous occasions by her faithful and affectionate attachment to federal principles, embraced, in the first session of her legislature after the establishment of the bank, the opportunity of testifying her approbation of an act, which had been found to be indispensably necessary. Harmonizing with the sentiments and recommendations of the United States, the assembly passed an act,c “for preventing Edition: current; Page: [63] and punishing the counterfeiting of the common seal, bank bills, and bank notes, of the president, directors, and company of the Bank of North America.” In the preamble to this act, which, according to the constitution of this state, expresses the reasons and motives for passing it, the “necessity” of taking “effectual measures for preventing and punishing frauds and cheats which may be put upon the president, directors, and company of the Bank of North America,” is explicitly declared by the legislature.

The sentiments and conduct of other states, respecting the establishment of the national bank by congress, were similar to those of Pennsylvania. The general assembly of Rhode Island and Providence Plantationsdmade it felony, without benefit of clergy, “to counterfeit any note or notes issued, or to be issued, from the Bank of North America, as approved and established by the United States in Congress assembled.” The state of Connecticut enacted,e that a tax should be laid, payable in money, or “notes issued by the directors of the national bank, established by an ordinance of the United States in congress assembled.” By a law of Massachussetts, the subscribers to the national bank, approved of by the United States, were “incorporated, on the behalf of that commonwealth, by the name of the president, directors and company of the Bank of North America, according to the terms of the ordinance to incorporate the said subscribers, passed by the United States in congress assembled on the thirty first day of December, 1781.” The same law further enacts, “that all notes or bills, which have been or shall be issued by, for, or in the name of the said president, directors, and company, and payable on demand, shall be receivable in the payment of all taxes, debts and duties, due or that may become due, or payable to, or for account of, the said United States.” In the preamble of this law, the legislature declares that “a national bank is of great service, as well to the publick as to individuals.”

The president and directors of the bank had a delicate and a difficult part to act. On one hand, they were obliged to guard against the malice and exertions of their enemies: on the other, it was incumbent on them to sooth the timidity of some of their friends. The credit of a bank, as well as all other credit, depends on opinion. Opinion, whether well or ill founded, produces, in each case, the same effects upon conduct. Some thought that Edition: current; Page: [64] an act of incorporation from the legislature of this state would be beneficial; none apprehended that it could ever be hurtful to the national bank. Prudence, therefore, and a disposition, very natural in that season of doubt and diffidence, to gratify the sentiments, and even the prejudices, of such as might become subscribers or customers to the bank, directed an application to the assembly for “a charter, similar to that granted by the United States in congress assembled.” But though the directors were willing to avail themselves of encouragement from every quarter, they meant not to relinquish any of their rights, or to change the foundation on which they rested. They made their application in their corporate character. They expressly mentioned to the assembly, that the United States in congress assembled had granted to the bank a charter of incorporation, and that the institution was to be carried on under their immediate auspices. The legislature thought that it was proper and reasonable to grantf the request of the president and directors of the Bank of North America; and assigned, as a reason for the act, “that the United States in congress assembled, from a conviction of the support which the finances of the United States would receive from the establishment of a national bank, passed an ordinance to incorporate the subscribers for this purpose, by the name and style of the president, directors, and company of the Bank of North America.”

The first clause of the law enacts, that “those who are, and those who shall become subscribers to the said bank, be, and forever hereafter shall be, a corporation and body politick, to all intents and purposes.”

It is further enacted, that “the said corporation be, and shall be forever hereafter, able and capable in law to do and execute all and singular matters and things, that to them shall or may appertain to do.”

To show, in the most striking light, the kind sentiments of the legislature towards the institution, it is further enacted, that “this act shall be construed and taken most favourably and beneficially for the said corporation.”

On these facts and proceedings, two questions of much national importance present themselves to our view and examination.

I. Is the Bank of North America legally and constitutionally instituted and organized, by the charter of incorporation granted by the United States in congress assembled?

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II. Would it be wise or politick in the legislature of Pennsylvania, to revoke the charter which it has granted to the institution?

The discussion of these two questions will naturally lead us to the proper conclusions concerning the validity and the utility of the bank.

I. Had the United States in congress assembled a legal and constitutional power to institute and organize the Bank of North America, by a charter of incorporation?

The objection, under this head, will be—that the articles of confederation express all the powers of congress, that in those articles no power is delegated to that body to grant charters of incorporation, and that, therefore, congress possess no such power.

It is true, that, by the second article of the confederation, “each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not, by the confederation, expressly delegated to the United States in congress assembled.”

If, then, any or each of the states possessed, previous to the confederation, a power, jurisdiction, or right, to institute and organize, by a charter of incorporation, a bank for North America; in other words—commensurate to the United States; such power, jurisdiction, and right, unless expressly delegated to congress, cannot be legally or constitutionally exercised by that body.

But, we presume, it will not be contended, that any or each of the states could exercise any power or act of sovereignty extending over all the other states, or any of them; or, in other words, incorporate a bank, commensurate to the United States.

The consequence is, that this is not an act of sovereignty, or a power, jurisdiction, or right, which, by the second article of the confederation, must be expressly delegated to congress, in order to be possessed by that body.

If, however, any person shall contend that any or each of the states can exercise such an extensive power or act of sovereignty as that above mentioned; to such person we give this answer—The state of Massachussetts has exercised such power and act: it has incorporated the Bank of North America. But to pursue my argument.

Though the United States in congress assembled derive from the particular states no power, jurisdiction, or right, which is not expressly delegated by the confederation, it does not thence follow, that the United States in Edition: current; Page: [66] congress have no other powers, jurisdiction, or rights, than those delegated by the particular states.

The United States have general rights, general powers, and general obligations, not derived from any particular states, nor from all the particular states, taken separately; but resulting from the union of the whole: and, therefore, it is provided, in the fifth article of the confederation, “that for the more convenient management of the general interests of the United States, delegates shall be annually appointed to meet in congress.”

To many purposes, the United States are to be considered as one undivided, independent nation; and as possessed of all the rights, and powers, and properties, by the law of nations incident to such.

Whenever an object occurs, to the direction of which no particular state is competent, the management of it must, of necessity, belong to the United States in congress assembled. There are many objects of this extended nature. The purchase, the sale, the defence, and the government of lands and countries, not within any state, are all included under this description. An institution for circulating paper, and establishing its credit over the whole United States, is naturally ranged in the same class.

The act of independence was made before the articles of confederation. This act declares, that “these United Colonies,” (not enumerating them separately) “are free and independent states; and that, as free and independent states, they have full power to do all acts and things which independent states may, of right, do.”

The confederation was not intended to weaken or abridge the powers and rights, to which the United States were previously entitled. It was not intended to transfer any of those powers or rights to the particular states, or any of them. If, therefore, the power now in question was vested in the United States before the confederation; it continues vested in them still. The confederation clothed the United States with many, though, perhaps, not with sufficient powers: but of none did it disrobe them.

It is no new position, that rights may be vested in a political body, which did not previously reside in any or in all the members of that body. They may be derived solely from the union of those members.g “The case,” Edition: current; Page: [67] says the celebrated Burlamaqui,4 “is here very near the same as in that of several voices collected together, which, by their union, produce a harmony, that was not to be found separately in each.”

A number of unconnected inhabitants are settled on each side of a navigable river; it belongs to none of them; it belongs not to them all, for they have nothing in common: let them unite; the river is the property of the united body.

The arguments drawn from the political associations of individuals into a state will apply, with equal force and propriety, to a number of states united by a confederacy.

New states must be formed and established: their extent and boundaries must be regulated and ascertained. How can this be done, unless by the United States in congress assembled?

States are corporations or bodies politick of the most important and dignified kind.

Let us now concentre the foregoing observations, and apply them to the incorporation of the Bank of North America by congress.

By the civil law, corporations seem to have been created by the mere and voluntary association of their members, provided such convention was not contrary to law.h

By the common law, something more is necessary—All the methods whereby corporations exist are, for the most part, reducible to that of the king’s letters patent, or charter of incorporation.i

From this it will appear that the creation of a corporation is, by the common law, considered as the act of the executive rather than of the legislative powers of government.

Before the revolution, charters of incorporation were granted by the proprietaries of Pennsylvania, under a derivative authority from the crown, and those charters have been recognised by the constitution and laws of the commonwealth since the revolution.

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From analogy, therefore, we may justly infer, that the United States in congress assembled, possessing the executive powers of the union, may, in virtue of such powers, grant charters of incorporation for accomplishing objects that comprehend the general interests of the United States.

But the United States in congress assembled possess, in many instances, and to many purposes, the legislative as well as the executive powers of the union; and therefore, whether we consider the incorporation of the bank as a law, or as a charter, it will be equally within the powers of congress: for the object of this institution could not be reached without the exertion of the combined sovereignty of the union.

I have asked—how can new states, which are bodies politick, be formed, unless by the United States in congress assembled? Fact, as well as argument, justifies my sentiments on this subject. The conduct of congress has been similar on similar occasions. The same principles have directed the exercise of the same powers.

In the month of April, 1784, congress resolved, that part of the western territory “should be divided into distinct states.”

They further resolved, that the settlers should, “either on their own petition, or on the order of congress, receive authority from them to meet together, for the purpose of establishing a temporary government, to adopt the constitution and laws of any one of the original states.”

“When any such state shall have acquired twenty thousand free inhabitants, on giving due proof thereof to congress, they shall receive from them authority to call a convention of representatives, to establish a permanent constitution and government for themselves.”

“The preceding articles,” among others, “shall be formed into a charter of compact; shall be duly executed by the president of the United States in congress assembled, under his hand and the seal of the United States; shall be promulgated; and shall stand as fundamental constitutions between the thirteen original states, and each of the several states now newly described, unalterable from and after the sale of any part of the territory of such state, but by the joint consent of the United States in congress assembled, and of the particular state within which such alteration is proposed to be made.”

It will be difficult, I believe, to urge against the power of congress to grant a charter to the Bank of North America, any argument, which may Edition: current; Page: [69] not, with equal strength and fitness, be urged against the power of that body to form, execute, and promulgate a charter of compact for the new states.

The sentiments of the representatives of the United States, as to their power of incorporating the bank, ought to have much weight with us. Their sentiments are strongly marked by their conduct, in their first resolutions respecting the bank. These resolutions are made at the same time, and on the same subject: but there is a striking difference in their manner. It was thought proper “that no other bank should be permitted within any of the states, during the war.” Congress “recommended to the several states to make provision, for that purpose, by proper laws.” It was thought prudent that the bank should be protected, by penal laws, from fraud, embezzlement, and forgery. Congress recommended it to the several legislatures to pass such laws. It was deemed expedient that bank notes should be received in payment of sums payable to the United States: congress resolve, that the notes “shall be receivable” in such payments. It was judged necessary that the bank should have a charter of incorporation: congress resolve, that the bank “shall be incorporated,” on application made “to congress” for that purpose. The line of distinction between those things in which congress could only recommend, and those in which they could act, is drawn in the clearest manner. The incorporation of the national bank is ranked among those things, in which they could act.

This act of congress has, either expressly, or by implication, received the approbation of every state in the union. It was officially announced to every state by the superintendant of finance. Had any one state considered it as an exercise of usurped power, would not that state have remonstrated against it? But there is no such remonstrance.

This act of congress has been most explicitly recognised by the legislature of Pennsylvania. The law for preventing and punishing frauds and cheats upon the bank was passed on the 18th of March, 1782, and before the bank had obtained a charter from this state. By that law it is made felony without benefit of clergy, to forge the common seal of the president, directors, and company of the Bank of North America. Who were the president, directors, and company of the Bank of North America? Those whom congress had made “a corporation and body politick, to all intents and purposes, by that name and style.” How came that body by a “common seal?” The act of Edition: current; Page: [70] congress ordained that that body “should have full power and authority to make, have and use a common seal.” In the act to incorporate the subscribers to the Bank of North America, the legislature, after reciting that the United States in congress assembled had “passed an ordinance to incorporate them,” say, “the president and directors of the said bank have applied to this house for a similar act of incorporation, which request it is proper and reasonable to grant.”

When the foregoing facts and arguments are considered, compared, and weighed, they will, it is hoped, evince and establish, satisfactorily to all, and conclusively on the legislature of Pennsylvania, the truth of this position—That the Bank of North America was legally and constitutionally instituted and organized, by the charter of incorporation granted by the United States in congress assembled.

II. Would it, then, be wise or politick in the legislature of Pennsylvania, to revoke the charter which it has granted to this institution? It would not be wise or politick—

1st. Because the proceeding would be nugatory. The recal of the charter of Pennsylvania would not repeal that of the United States, by which we have proved the bank to be legally and constitutionally instituted and organized.

2d. Because, though the legislature may destroy the legislative operation, yet it cannot undo the legislative acknowledgment of its own act. Though a statute be repealed, yet it shows the sense and opinion of the legislature concerning the subject of it, in the same manner as if it continued in force.jThe legislature declared, in the law, that it was proper and reasonable to grant the request of the president and directors of the bank, for an act of incorporation similar to the ordinance of congress: no repeal of the law can weaken the force of that declaration.

3d. Because such a proceeding would wound that confidence in the engagements of government, which it is so much the interest and duty of every state to encourage and reward. The act in question formed a charter of compact between the legislature of this state, and the president, directors, and company of the Bank of North America. The latter asked for nothing but what was proper and reasonable: the former granted nothing but what was proper and reasonable: the terms of the compact were, therefore, Edition: current; Page: [71] fair and honest: while these terms are observed on one side, the compact cannot, consistently with the rules of good faith, be departed from on the other.

It may be asked—Has not the state power over her own laws?—May she not alter, amend, extend, restrain, and repeal them at her pleasure?

I am far from opposing the legislative authority of the state: but it must be observed, that, according to the practice of the legislature, publick acts of very different kinds are drawn and promulgated under the same form. A law to vest or confirm an estate in an individual—a law to incorporate a congregation or other society—a law respecting the rights and properties of all the citizens of the state—are all passed in the same manner; are all clothed in the same dress of legislative formality; and are all equally acts of the representatives of the freemen of the commonwealth. But surely it will not be pretended, that, after laws of those different kinds are passed, the legislature possesses over each the same discretionary power of repeal. In a law respecting the rights and properties of all the citizens of the state, this power may be safely exercised by the legislature. Why? Because, in this case, the interest of those who make the law (the members of assembly and their constituents) and the interest of those who are to be affected by the law (the members of assembly and their constituents) is the same. It is a common cause, and may, therefore, be safely trusted to the representatives of the community. None can hurt another, without, at the same time, hurting himself. Very different is the case with regard to a law, by which the state grants privileges to a congregation or other society. Here two parties are instituted, and two distinct interests subsist. Rules of justice, of faith, and of honour must, therefore, be established between them: for, if interest alone is to be viewed, the congregation or society must always lie at the mercy of the community. Still more different is the case with regard to a law, by which an estate is vested or confirmed in an individual: if, in this case, the legislature may, at discretion, and without any reason assigned devest or destroy his estate, then a person seized of an estate in fee simple, under legislative sanction, is, in truth, nothing more than a solemn tenant at will.

For these reasons, whenever the objects and makers of an instrument, passed under the form of a law, are not the same, it is to be considered as a compact, and to be interpreted according to the rules and maxims, by which compacts are governed. A foreigner is naturalized by law: is he Edition: current; Page: [72] a citizen only during pleasure? He is no more, if, without any cause of forfeiture assigned and established, the law, by which he is naturalized, may at pleasure be repealed. To receive the legislative stamp of stability and permanency, acts of incorporation are applied for from the legislature. If these acts may be repealed without notice, without accusation, without hearing, without proof, without forfeiture; where is the stamp of their stability? Their motto should be, “Levity.” If the act for incorporating the subscribers to the Bank of North America shall be repealed in this manner, a precedent will be established for repealing, in the same manner, every other legislative charter in Pennsylvania. A pretence, as specious as any that can be alleged on this occasion, will never be wanting on any future occasion. Those acts of the state, which have hitherto been considered as the sure anchors of privilege and of property, will become the sport of every varying gust of politicks, and will float wildly backwards and forwards on the irregular and impetuous tides of party and faction.

4th. It would not be wise or politick to repeal the charter granted by this state to the Bank of North America, because such a measure would operate, as far as it would have any operation, against the credit of the United States, on which the interest of this commonwealth and her citizens so essentially depends. This institution originated under the auspices of the United States: the subscription to the national bank was opened under the recommendations and the engagements of congress: citizens of this state, and of the other states, and foreigners have become stockholders, on the publick faith: the United States have pledged themselves “to promote and support the institution by such ways and means, from time to time, as may appear necessary for it, and consistent with the publick good.”k They have recommended to the legislature of each state, “to pass such laws as they might judge necessary for giving the ordinance incorporating the bank its full operation.” Pennsylvania has entered fully into the views, the recommendations, and the measures of congress respecting the bank. She has declared in the strongest manner her sense of their propriety, their reasonableness, and their necessity: she has passed laws for giving them their full operation. Will it redound to the credit of the United States to adopt and pursue a contrary system of conduct? The acts Edition: current; Page: [73] and recommendations of congress subsist still in all their original force. Will it not have a tendency to shake all confidence in the councils and proceedings of the United States, if those acts and recommendations are now disregarded, without any reason shown for disregarding them? What influence will such a proceeding have upon the opinions and sentiments of the citizens of the United States and of foreigners? In one year they see measures respecting an object of confessed publick importance adopted and recommended with ardour by congress; and the views and wishes of that body zealously pursued by Pennsylvania: in another year they see those very measures, without any apparent reason for the change, warmly reprobated by that state: they must conclude one of two things:—that congress adopted and recommended those measures hastily and without consideration; or that Pennsylvania has reprobated them undutifully and disrespectfully. The former conclusion will give rise to very unfavourable reflections concerning the discernment both of the state and of the United States: the latter will suggest very inauspicious sentiments concerning the federal disposition and character of this commonwealth. The result of the conclusion will be—that the United States do not deserve, or that they will not receive, support in their system of finance.—These deductions and inferences will have particular weight, as they will be grounded on the conduct of Pennsylvania, hitherto one of the most federal, active, and affectionate states in the Union.

5th. It would not be wise or politick in the legislature to repeal their charter to the bank; because the tendency of such a step would be to deprive this state and the United States of all the advantages, publick and private, which would flow from the institution, in times of war, and in times of peace.

Let us turn our attention to some of the most material advantages resulting from a bank.

1st. It increases circulation, and invigorates industry. “It is not,” says Dr. Smith,5 in his Treatise on the Wealth of Nations,l

by augmenting the capital of the country, but by rendering a greater part of that capital active and productive than would otherwise be so, that Edition: current; Page: [74] the most judicious operations of banking can increase the industry of the country. The part of his capital which a dealer is obliged to keep by him unemployed, and in ready money, for answering occasional demands, is so much dead stock, which, so long as it remains in this situation, produces nothing either to him or to his country. The judicious operations of banking enable him to convert this dead stock into active and productive stock: into materials to work upon, into tools to work with, and into provisions and subsistence to work for; into stock which produces something both to himself and to his country. The gold and silver money which circulates in any country, and by means of which the produce of its land and labour is annually circulated and distributed to the proper consumers, is, in the same manner as the ready money of the dealer, all dead stock. It is a very valuable part of the capital of the country, which produces nothing to the country. The judicious operations of banking, by substituting paper in the room of a great part of this gold and silver, enables the country to convert a great part of this dead stock into active and productive stock; into stock which produces something to the country. The gold and silver money which circulates in any country may very properly be compared to a highway, which, while it circulates and carries to market all the grass and corn of the country, produces, itself, not a single pile of either. The judicious operations of banking, by providing, if I may be allowed so violent a metaphor, a sort of wagon-way through the air, enable the country to convert, as it were, a great part of its highways into good pasture and corn fields, and thereby to increase very considerably the annual produce of its land and labour.

The same sensible writer informs us, in another place, that “them substitution of paper in the room of gold and silver money, replaces a very expensive instrument of commerce with one much less costly, and sometimes equally convenient. Circulation comes to be carried on by a new wheel, which it costs less both to erect and to maintain than the old one.—There are several sorts of paper money; but the circulating notes of banks and bankers is the species which is best known, and which seems best adapted for this purpose.”—“These notes come to have the same currency as gold and silver money, from the confidence that such money can at any time be had for them.”

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Sir James Stewart6 calls banking “the great engine,n by which domestick circulation is carried on.”

To have a free, easy, and equable instrument of circulation is of much importance in all countries: it is of peculiar importance in young and flourishing countries, in which the demands for credit, and the rewards of industry, are greater than in any other. When we view the extent and situation of the United States, we shall be satisfied that their inhabitants may, for a long time to come, employ profitably, in the improvement of their lands, a greater stock than they will be able easily to procure. In such a situation, it will always be of great service to them to save as much as possible the expense of so costly an instrument of commerce as gold and silver, to substitute in its place one cheaper, and, for many purposes, not less convenient; and to convert the value of the gold and silver into the labour and the materials necessary for improving and extending their settlements and plantations.

“To the banks of Scotland,” says Sir James Stewart,o “the improvement of that country is entirely owing; and until they are generally established in other countries of Europe, where trade and industry are little known, it will be very difficult to set those great engines to work.”

2d. The influence of a bank on credit is no less salutary than its influence on circulation. This position is, indeed, little more than a corollary from the former. Credit is confidence; and, before we can place confidence in a payment, we must be convinced that he who is to make it will be both able and willing to do so at the time stipulated. However unexceptionable his character and fortune may be, this conviction can never take place, unless in a country where solid property can be, at any time, turned into a circulating medium.

3d. Trade, as well as circulation and credit, derives great support and assistance from a bank. Credit and circulation produce punctuality; and punctuality is the soul of commerce. Let us appeal to experience as well as reason.

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Dr. Smith says,p he has heard it asserted, that the trade of the city of Glasgow doubled in about fifteen years after the first erection of the banks there; and that the trade of Scotland has more than quadrupled since the first erection of the two publick banks at Edinburgh, of which one was established in 1695, and the other in 1727. Whether the increase has been in so great a proportion, the author pretends not to know. But that the trade of Scotland has increased very considerably during this period, and that the banks have contributed a good deal to this increase, cannot, he says, be doubted.

These observations, and observations similar to these, have induced Sir James Stewart to conclude,—that

Banking,q in the age we live, is that branch of credit which best deserves the attention of a statesman. Upon the right establishment of banks depends the prosperity of trade, and the equable course of circulation. By them solid property may be melted down. By the means of banks, money may be constantly kept at a due proportion to alienation. If alienation increases, more property may be melted down. If it diminishes, the quantity of money stagnating will be absorbed by the bank, and part of the property formerly melted down in the securities granted to them will be, as it were, consolidated anew. These must pay, for the country, the balance of their trade with foreign nations: these keep the mints at work: and it is by these means, principally, that private, mercantile, and publick credit is supported.

I make no apology for the number and length of the quotations here used. They are from writers of great information, profound judgment, and unquestioned candour. They appear strictly and strongly applicable to my subject: and being so, should carry with them the greatest weight and influence; for the sentiments, which they contain and inculcate, must be considered as resulting from general principles and facts, and not as calculated for any partial purpose in this commonwealth.

But, here, it will probably be asked—Has your reasoning been verified by experience in this country? What advantages have resulted from the bank to commerce, circulation, and credit? Was our trade ever on such an Edition: current; Page: [77] undesirable footing? Is not the country distressed by the want of a circulating medium? Is not credit almost totally destroyed?

I answer—There is, unfortunately, too much truth in the representation: but if events are properly distinguished, and traced to their causes, it will be found—that none of the inconveniences abovementioned have arisen from the bank—that some of them have proceeded, at least in part, from the opposition which has been given to it—and that, as to others, its energy has not been sufficient to counteract or control them.

The disagreeable state of our commerce has been the effect of extravagant and injudicious importation. During the war, our ports were in a great measure blocked up. Imported articles were scarce and dear; and we felt the disadvantages of a stagnation in business. Extremes frequently introduce one another. When hostilities ceased, the floodgates of commerce were opened; and an inundation of foreign manufactures overflowed the United States: we seemed to have forgot, that to pay was as necessary in trade as to purchase; and we observed no proportion between our imports, and our produce and other natural means of remittance. What was the consequence? Those who made any payments made them chiefly in specie; and in that way diminished our circulation. Others made no remittances at all, and thereby injured our credit. This account of what happened between the European merchants and our importers, corresponds exactly with what happened between our importers and the retailers spread over the different parts of the United States. The retailers, if they paid at all, paid in specie: and thus every operation, foreign and domestick, had an injurious effect on our credit, our circulation, and our commerce. But are any of these disadvantages to be ascribed to the bank? No. Is it to be accounted a fault or defect in the bank, that it did not prevent or remedy those disadvantages? By no means. Because one is not able to stem a torrent, is he therefore to be charged with augmenting its strength? The bank has had many difficulties to encounter. The experiment was a new one in this country: it was therefore necessary that it should be conducted with caution. While the war continued, the demands of the publick were great, and the stock of the bank was but inconsiderable; it had its active enemies, and its timid friends. Soon after the peace was concluded, its operations were restrained and embarrassed by an attempt to establish a new bank. A year had not elapsed after this, when the measure, which has occasioned these considerations, was introduced into the legislature, and caused, for Edition: current; Page: [78] some time, a total stagnation in the business of the institution. When all these circumstances are recollected and attended to, it will be matter of surprise that the bank has done so much, and not that it has done no more. Let it be deemed, as it ought to be, the object of publick confidence, and not of publick jealousy: let it be encouraged, instead of being opposed, by the counsels and proceedings of the state: then will the genuine effects of the institution appear; then will they spread their auspicious influence over agriculture, manufactures, and commerce.

4th. Another advantage to be expected from the Bank of North America is, the establishment of an undepreciating paper currency through the United States. This is an object of great consequence, whether it be considered in a political, or in a commercial view. It will be found to have a happy effect on the collection, the distribution, and the management of the publick revenue: it will remove the inconveniences and fluctuation attending exchange and remittances between the different states. “It is the interest of every trading state to have a sufficient quantity of paper, well secured, to circulate through it, so as to facilitate payments every where, and to cut off inland exchanges, which are a great clog upon trade, and are attended with the risk of receiving the paper of people, whose credit is but doubtful.”r

Such are the advantages which may be expected to flow from a national bank, in times of peace. In times of war, the institution may be considered as essential. We have seen that, without it, the business of the department of finance could not have been carried on in the late war. It will be of use to recollect the situation of the United States with regard to this subject. The two or three first years of the war were sufficient to convince the British government, and the British armies, that they could not subdue the United States by military force. Their hopes of success rested on the failure of our finances. This was the source of our fears, as well as of the hopes of our enemies. By this thread our fate was suspended. We watched it with anxiety: we saw it stretched and weakened every hour: the deathful instrument was ready to fall upon our heads: on our heads it must have fallen, had not publick credit, in the moment when it was about to break asunder, been entwined and supported by the credit of the bank. Congress, to speak without metaphors, had not money or credit to hire an express, or purchase a cord of wood. General Washington, on one occasion, Edition: current; Page: [79] and probably more than one, saw his army literally unable to march. Our distress was such, that it would have been destruction to have divulged it: but it ought to be known now; and when known, ought to have its proper influence on the publick mind and the publick conduct.

The expenses of a war must be defrayed, either—1st, by treasures previously accumulated—or 2dly, by supplies levied and collected within the year, as they are called for—or 3dly, by the anticipation of the publick revenues. No one will venture to refer us to the first mode. To the second the United States, as well as every state in Europe, are rendered incompetent by the modern system of war, which, in the military operations of one year, concentres the revenue of many. While our enemies adhere to this system, we must adopt it. The anticipation of revenue, then, is the only mode, by which the expenses of a future war can be defrayed. How the revenues of the United States can be anticipated without the operations of a national bank, I leave to those who attack the Bank of North America to show. They ought to be well prepared to show it; for they must know, that to be incapable of supporting a war is but a single step from being involved in one.

The result of the whole, under this head, is,—that in times of peace, the national bank will be highly advantageous; that in times of war, it will be essentially necessary, to the United States.

I flatter myself, that I have evinced the validity and the utility of the institution.

It has been surmised, that the design of the legislature is not to destroy, but to modify, the charter of the bank; and that if the directors would assent to reasonable amendments, the charter, modified, might continue in force. If this is the case, surely to repeal the law incorporating the bank is not the proper mode of doing the business. The bank was established and organized under the authority and auspices of congress. The directors have a trust and duty to discharge to the United States, and to all the particular states, each of which has an equal interest in the bank. They could not have received, from this state, a charter, unless it had been similar to that granted by congress. Without the approbation of congress, where all the states are represented, the directors would not be justified in agreeing to any alteration of the institution. If alterations are necessary; they should be made through the channel of the United States in congress assembled.

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Remarks of James Wilson in the Federal Convention, 1787.

Wilson is widely regarded by scholars as being second only to James Madison, and perhaps on a par with him, in terms of his influence at the constitutional convention. The following excerpts include every instance that James Madison recorded him speaking in the convention. For the most complete record of the convention’s proceedings, see Max Farrand, ed. The Records of the Federal Convention of 1787, 3 vols.

Friday 25 of May, when the following members appeared to wit: see Note A.

viz, From Massachusetts Rufus King. N. York Robert Yates, Alexr Hamilton. N. Jersey, David Brearly, William Churchill Houston, William Patterson. Pennsylvania, Robert Morris, Thomas Fitzsimmons, James Wilson, Govurneur Morris. Delaware, George Read, Richard Basset, Jacob Broome. Virginia, George Washington, Edmund Randolph, John Blair, James Madison, George Mason, George Wythe, James McClurg. N. Carolina, Alexander Martin, William Richardson Davie, Richard Dobbs Spaight, Hugh Williamson. S. Carolina, John Rutlidge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler. Georgia, William Few.1

Edition: current; Page: [81]

Mr Robert Morris informed the members assembled that by the instruction & in behalf, of the deputation of Pena he proposed George Washington Esqr late Commander in chief for president of the Convention. Mr Jno Rutlidge seconded the motion; expressing his confidence that the choice would be unanimous, and observing that the presence of Genl Washington forbade any observations on the occasion which might otherwise be proper.

Edition: current; Page: [82]

General Washington was accordingly unanimously elected by ballot, and conducted to the Chair by Mr R. Morris and Mr Rutlidge; from which in a very emphatic manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion.

[The nomination came with particular grace from Penna. as Docr Franklin alone could have been thought of as a competitor. The Docr was himself to have made the nomination of General Washington, but the state of the weather and of his health confined him to his house.]

Mr Wilson moved that a Secretary be appointed, and nominated Mr Temple Franklin.2

. . .

Thursday May 31

William Pierce3 from Georgia took his seat.

In Committee of the whole on Mr Randolph’s propositions.

The 3d Resolution “that the national Legislature ought to consist of two branches” was agreed to without debate or dissent, except that of Pennsylvania, given probably from complaisance to Docr Franklin who was understood to be partial to a single House of Legislation.

Resol: 4. first clause “that the members of the first branch of the National Legislature ought to be elected by the people of the several States” being taken up,

. . .

Mr Wilson contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished Edition: current; Page: [83] to give it as broad a basis as possible. No government could long subsist without the confidence of the people. In a republican Government this confidence was peculiarly essential. He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the national Legislature. All interference between the general and local Governmts should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceded much more from the officers of the States, than from the people at large.

. . .

The Committee proceeded to Resolution 5. “that the second, [or senatorial] branch of the National Legislature ought to be chosen by the first branch out of persons nominated by the State Legislatures.”

. . .

Mr Wilson opposed both a nomination by the State Legislatures and an election by the first branch of the national Legislature, because the second branch of the latter, ought to be independent of both. He thought both branches of the National Legislature ought to be chosen by the people, but was not prepared with a specific proposition. He suggested the mode of chusing the Senate of N. York to wit of uniting several election districts, for one branch, in chusing members for the other branch, as a good model.

. . .

Friday June 1st 1787

William Houston from Georgia took his seat.

The Committee of the whole proceeded to Resolution 7. “that a national Executive be instituted, to be chosen by the national Legislature—for the term of years &c to be ineligible thereafter, to possess the executive powers of Congress &c.”

. . .

Mr Wilson moved that the Executive consist of a single person.

. . .

Mr Wilson preferred a single magistrate, as giving most energy, dispatch and responsibility to the office. He did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some Edition: current; Page: [84] of these prerogatives were of Legislative nature. Among others that of war & peace &c. The only powers he conceived strictly Executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the Legislature.

. . .

Mr Wilson said that unity in the Executive instead of being the fetus of monarchy would be the best safeguard against tyranny. He repeated that he was not governed by the British Model which was inapplicable to the situation of this Country; the extent of which was so great, and the manners so republican, that nothing but a great confederated Republic would do for it.

Mr Wilson’s motion for a single magistrate was postponed by common consent, the Committee seeming unprepared for any decision on it; and the first part of the clause agreed to, viz—“that a National Executive be instituted.”

Mr Madison thought it would be proper, before a choice shd be made between a unity and a plurality in the Executive, to fix the extent of the Executive authority; that as certain powers were in their nature Executive, and must be given to that departmt whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. He accordingly moved that so much of the clause before the Committee as related to the powers of the Executive shd be struck out & that after the words “that a national Executive ought to be instituted” there be inserted the words following viz. “with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers ‘not Legislative nor Judiciary in their nature,’ as may from time to time be delegated by the national Legislature.” The words “not legislative nor judiciary in their nature” were added to the proposed amendment in consequence of a suggestion by Genl Pinkney that improper powers might otherwise be delegated.

Mr Wilson seconded this motion—

. . .

The next clause in Resolution 7, relating to the mode of appointing, & the duration of, the Executive being under consideration.

Mr Wilson said he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. Edition: current; Page: [85] He would say however at least that in theory he was for an election by the people. Experience, particularly in N. York & Massts, shewed that an election of the first magistrate by the people at large, was both a convenient & successful mode. The objects of choice in such cases must be persons whose merits have general notoriety.

. . .

The mode of appointing the Executive was the next question.

Mr Wilson renewed his declarations in favor of an appointment by the people. He wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States;

Col. Mason favors the idea, but thinks it impracticable. He wishes however that Mr Wilson might have time to digest it into his own form.—the clause “to be chosen by the National Legislature”—was accordingly postponed.—

. . .

Saturday June 2d. In Committee of whole

. . .

Mr Wilson made the following motion, to be substituted for the mode proposed by Mr Randolph’s resolution, “that the Executive Magistracy shall be elected in the following manner: That the States be divided into districts: & that the persons qualified to vote in each district for members of the first branch of the national Legislature elect members for their respective districts to be electors of the Executive magistracy, that the said Electors of the Executive magistracy meet at and they or any of them so met shall proceed to elect by ballot, but not out of their own body person in whom the Executive authority of the national Government shall be vested.”

Mr Wilson repeated his arguments in favor of an election without the intervention of the States. He supposed too that this mode would produce more confidence among the people in the first magistrate, than an election by the national Legislature.

. . .

Edition: current; Page: [86]

Mr Dickenson4 moved “that the Executive be made removeable by the National Legislature on the request of a majority of the Legislatures of individual States.” It was necessary he said to place the power of removing somewhere. He did not like the plan of impeaching the Great officers of State. He did not know how provision could be made for removal of them in a better mode than that which he had proposed. He had no idea of abolishing the State Governments as some gentlemen seemed inclined to do. The happiness of this Country in his opinion required considerable powers to be left in the hands of the States.

. . .

Mr Madison & Mr Wilson observed that it would leave an equality of agency in the small with the great States; that it would enable a minority of the people to prevent ye removal of an officer who had rendered himself justly criminal in the eyes of a majority; that it would open a door for intrigues agst him in States where his administration tho’ just might be unpopular, and might tempt him to pay court to particular States whose leading partizans he might fear, or wish to engage as his partizans. They both thought it bad policy to introduce such a mixture of the State authorities, where their agency could be otherwise supplied.

. . .

Monday June 4. In Committee of the whole

The Question was resumed on motion of Mr Pinkney 2ded by Wilson, “shall the blank for the number of the Executive be filled with a single person?”

Mr Wilson was in favor of the motion. It had been opposed by the gentleman from Virga [Mr Randolph] but the arguments used had not convinced him. He observed that the objections of Mr R. were levelled not so much agst the measure itself, as agst its unpopularity. If he could suppose that it would occasion a rejection of the plan of which it should form a part, Edition: current; Page: [87] though the part was an important one, yet he would give it up rather than lose the whole. On examination he could see no evidence of the alledged antipathy of the people. On the contrary he was persuaded that it does not exist. All know that a single magistrate is not a King. One fact has great weight with him. All the 13 States tho agreeing in scarce any other instance, agree in placing a single magistrate at the head of the Governt. The idea of three heads has taken place in none. The degree of power is indeed different; but there are no co-ordinate heads. In addition to his former reasons for preferring a unity, he would mention another. The tranquility not less than the vigor of the Govt he thought would be favored by it. Among three equal members, he foresaw nothing but uncontrouled, continued, & violent animosities; which would not only interrupt the public administration; but diffuse their poison thro’ the other branches of Govt, thro’ the States, and at length thro’ the people at large. If the members were to be unequal in power the principle of the opposition to the unity was given up. If equal, the making them an odd number would not be a remedy. In Courts of Justice there are two sides only to a question. In the Legislative & Executive departmts questions have commonly many sides. Each member therefore might espouse a separate one & no two agree.

. . .

Mr Williamson asks Mr Wilson whether he means to annex a Council.

Mr Wilson means to have no Council, which oftener serves to cover, than prevent malpractices.

. . .

First Clause of Proposition 8th relating to a Council of Revision taken into consideration.

Mr Gerry5 doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst the Constitution. This was done too with general approbation. It was quite foreign from the nature of ye office to make Edition: current; Page: [88] them judges of the policy of public measures. He moves to postpone the clause in order to propose “that the National Executive shall have a right to negative any Legislative act which shall not be afterwards passed by parts of each branch of the national Legislature.”

. . .

Mr Wilson thinks neither the original proposition nor the amendment go far enough. If the Legislative Exetv & Judiciary ought to be distinct & independent. The Executive ought to have an absolute negative. Without such a self-defense the Legislature can at any moment sink it into nonexistence. He was for varying the proposition in such a manner as to give the Executive & Judiciary jointly an absolute negative.

On the question to postpone in order to take Mr Gerry’s proposition into consideration it was agreed to, Massa ay. Cont no. N. Y. ay. Pa ay. Del. no. Maryd no. Virga no. N. C. ay. S. C. ay. Ga ay.

Mr Gerry’s proposition being now before Committee, Mr Wilson & Mr Hamilton move that the last part of it [viz. “wch sl not be afterwds passed unless by parts of each branch of the National legislature”] be struck out, so as to give the Executive an absolute negative on the laws. There was no danger they thought of such a power being too much exercised. It was mentioned by Col: Hamilton that the King of G. B. had not exerted his negative since the Revolution.

. . .

Mr Wilson believed as others did that this power would seldom be used. The Legislature would know that such a power existed, and would refrain from such laws, as it would be sure to defeat. Its silent operation would therefore preserve harmony and prevent mischief. The case of Pena formerly was very different from its present case. The Executive was not then as now to be appointed by the people. It will not in this case as in the one cited be supported by the head of a Great Empire, actuated by a different & sometimes opposite interest. The salary too is now proposed to be fixed by the Constitution, or if Dr. F.’s idea should be adopted all salary whatever interdicted. The requiring a large proportion of each House to overrule the Executive check might do in peaceable times; but there might be tempestuous moments in which animosities may run high between the Executive and Legislative branches, and in which the former ought to be able to defend itself.

. . .

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Tuesday June 5. In Committee of the whole

Governor Livingston6 from New Jersey, took his seat.

The words, “one or more” were struck out before “inferior tribunals” as an amendment to the last clause of Resoln 9th. The Clause—“that the National Judiciary be chosen by the National Legislature,” being under consideration.

Mr Wilson opposed the appointmt of Judges by the National Legisl: Experience shewed the impropriety of such appointmts by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was that officers might be appointed by a single, responsible person.

. . .

Mr Wilson gave notice that he should at a future day move for a reconsideration of that clause which respects “inferior tribunals.”

. . .

Propos. 15 for “recommending Conventions under appointment of the people to ratify the new Constitution” &c. being taken up.

. . .

Mr Wilson took this occasion to lead the Committee by a train of observations to the idea of not suffering a disposition in the plurality of States to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few States. He hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the acession of the rest.

. . .

Mr Rutlidge havg obtained a rule for reconsideration of the clause for establishing inferior tribunals under the national authority, now moved that that part of the clause in propos. 9. should be expunged: arguing that the State Tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgmts: that it was making an unnecessary encroachment on the jurisdiction of the Edition: current; Page: [90] States and creating unnecessary obstacles to their adoption of the new system.—Mr Sherman7 2ded the motion.

. . .

Mr Wilson opposed the motion on like grounds, he said the admiralty jurisdiction ought to be given wholly to the national Government, as it related to cases not within the jurisdiction of particular states, & to a scene in which controversies with foreigners would be most likely to happen.

. . .

Mr Wilson & Mr Madison then moved, in pursuance of the idea expressed above by Mr Dickinson, to add to Resol: 9. the words following “that the National Legislature be empowered to institute inferior tribunals.” They observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them. They repeated the necessity of some such provision.

. . .

Wednesday June 6th. In Committee of the whole

Mr Pinkney according to previous notice & rule obtained, moved “that the first branch of the national Legislature be elected by the State Legislatures, and not by the people.” contending that the people were less fit Judges in such a case, and that the Legislatures would be less likely to promote the adoption of the new Government, if they were to be excluded from all share in it.

Mr Rutlidge 2ded the motion.

. . .

Mr Wilson. He wished for vigor in the Govt, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The Govt ought to possess not only 1st the force, but 2dly the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because Edition: current; Page: [91] it is impossible for the people to act collectively. The opposition was to be expected he said from the Governments, not from the Citizens of the States. The latter had parted as was observed [by Mr King] with all the necessary powers; and it was immaterial to them, by whom they were exercised, if well exercised. The State officers were to be the losers of power. The people he supposed would be rather more attached to the national Govt than to the State Govts as being more important in itself, and more flattering to their pride. There is no danger of improper elections if made by large districts. Bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office.

. . .

Mr Wilson, would not have spoken again, but for what had fallen from Mr Read; namely, that the idea of preserving the State Govts ought to be abandoned. He saw no incompatibility between the National & State Govts provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated Systems antient & modern the reverse had happened; the Generality being destroyed gradually by the usurpations of the parts composing it.

. . .

Mr Wilson moved to reconsider the vote excluding the Judiciary from a share in the revision of the laws, and to add after “National Executive” the words “with a convenient number of the national Judiciary”; remarking the expediency of reinforcing the Executive with the influence of that Department.

. . .

Mr Wilson remarked, that the responsibility required belonged to his Executive duties. The revisionary duty was an extraneous one, calculated for collateral purposes.

. . .

Thursday June 7th 1787—In Committee of the whole

. . .

The Clause providing for ye appointment of the 2d branch of the national Legislature, having lain blank since the last vote on the mode of electing Edition: current; Page: [92] it, to wit, by the 1st branch, Mr Dickenson now moved “that the members of the 2d branch ought to be chosen by the individual Legislatures.”

. . .

Mr Wilson. If we are to establish a national Government, that Government ought to flow from the people at large. If one branch of it should be chosen by the Legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them. He wished the Senate to be elected by the people as well as the other branch, and the people might be divided into proper districts for the purpose & moved to postpone the motion of Mr Dickenson, in order to take up one of that import.

Mr Morris 2ded him.

. . .

Friday June 8th. In Committee of the whole

On a reconsideration of the clause giving the Natl Legislature a negative on such laws of the States as might be contrary to the articles of Union, or Treaties with foreign nations.

. . .

Mr Wilson would not say what modifications of the proposed power might be practicable or expedient. But however novel it might appear the principle of it when viewed with a close & steady eye, is right. There is no instance in which the laws say that the individual shd be bound in one case, & at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual person may happen as well as over the individual States. Federal liberty is to States, what civil liberty, is to private individuals. And States are not more unwilling to purchase it, by the necessary concession of their political sovereignty, than the savage is to purchase civil liberty by the surrender of his personal sovereignty, which he enjoys in a State of nature. A definition of the cases in which the Negative should be exercised, is impracticable. A discretion must be left on one side or the other? will it not be most safely lodged on the side of the Natl Govt? Among the first sentiments expressed in the first Congs one was that Virga is no more, that Masts is no that Pa is no more &c. We are now one nation of brethren. We must Edition: current; Page: [93] bury all local interests & distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Govts formed than their jealousy & ambition began to display themselves. Each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro’ Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?

. . .

Saturday June 9th. Mr Luther Martin8 from Maryland took his seat. In Committee of the whole

Mr Gerry, according to previous notice given by him, moved that the National Executive should be elected by the Executives of the States whose proportion of votes should be the same with that allowed to the States in the election of the Senate.”

. . .

Mr Wilson hoped if the Confederacy should be dissolved, that a majority, that a minority of the States would unite for their safety. He entered elaborately into the defence of a proportional representation, stating for his first position that as all authority was derived from the people, equal numbers of people ought to have an equal no of representatives, and different numbers of people different numbers of representatives. This principle had been improperly violated in the Confederation, owing to the urgent circumstances of the time. As to the case of A. & B, stated by Mr Patterson,9 he Edition: current; Page: [94] observed that in districts as large as the States, the number of people was the best measure of their comparative wealth. Whether therefore wealth or numbers were to form the ratio it would be the same. Mr P. admitted persons, not property to be the measure of suffrage. Are not the Citizens of Pena equal to those of N. Jersey? does it require 150 of the former to balance 50 of the latter? Representatives of different districts ought clearly to hold the same proportion to each other, as their respective Constituents hold to each other. If the small States will not confederate on this plan, Pena & he presumed some other States, would not confederate on any other. We have been told that each State being sovereign, all are equal. So each man is naturally a sovereign over himself, and all men are therefore naturally equal. Can he retain this equality when he becomes a member of Civil Government? He can not. As little can a Sovereign State, when it becomes a member of a federal Governt If N. J. will not part with her Sovereignty it is in vain to talk of Govt A new partition of the States is desireable, but evidently & totally impracticable.

. . .

Monday June 11th. Mr Abraham Baldwin10 from Georgia took his seat. In Committee of the whole

The clause concerning the rule of suffrage in the natl Legislature postponed on Saturday was resumed.

. . .

Mr King & Mr Wilson, in order to bring the question to a point moved “that the right of suffrage in the first branch of the national Legislature ought not to be according the rule established in the articles of Confederation, but according to some equitable ratio of representation.” The clause so far as it related to suffrage in the first branch was postponed in order to consider this motion.

. . .

Mr Wilson & Mr Hamilton moved that the right of suffrage in the 2dbranch ought to be according to the same rule as in the 1st branch. On this Edition: current; Page: [95] question for making the ratio of representation the same in the 2d as in the 1st branch it passed in the affirmative:

. . .

Saturday June 16. In Committee of the whole on Resolutions proposd by Mr P. & Mr R

Mr Lansing11 called for the reading of the 1st resolution of each plan, which he considered as involving principles directly in contrast; that of Mr Patterson says he sustains the sovereignty of the respective States, that of Mr Randolph distroys it: the latter requires a negative on all the laws of the particular States; the former, only certain general powers for the general good. The plan of Mr R. in short absorbs all power except what may be exercised in the little local matters of the States which are not objects worthy of the supreme cognizance.

. . .

Mr Wilson entered into a contrast of the principal points of the two plans so far he said as there had been time to examine the one last proposed. These points were 1. in the Virga plan there are 2 & in some degree 3 branches in the Legislature: in the plan from N.J. there is to be a single legislature only—2. Representation of the people at large is the basis of the one:—the State Legislatures, the pillars of the other—3. proportional representation prevails in one:—equality of suffrage in the other—4. A single Executive Magistrate is at the head of the one:—a plurality is held out in the other.—5. in the one the majority of the people of the U. S. must prevail:—in the other a minority may prevail. 6. the Natl Legislature is to make laws in all cases to which the separate States are incompetent &–:—in place of this Congs are to have additional power in a few cases only—7. A negative on the laws of the States:—in place of this coertion to be substituted—8. The Executive to be removeable on impeachment & conviction;—in one plan: in the other to be removeable at the instance of majority of the Executives Edition: current; Page: [96] of the States—9. Revision of the laws provided for in one:—no such check in the other—10. inferior national tribunals in one:—none such in the other. 11. In ye one jurisdiction of Natl tribunals to extend &c—; an appellate jurisdiction only allowed in the other. 12. Here the jurisdiction is to extend to all cases affecting the Nationl peace & harmony: there, a few cases only are marked out. 13. finally ye ratification is in this to be by the people themselves:—in that by the legislative authorities according to the 13 art: of Confederation.

With regard to the power of the Convention, he conceived himself authorized to conclude nothing, but to be at liberty to propose any thing. In this particular he felt himself perfectly indifferent to the two plans.

With regard to the sentiments of the people, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved, were commonly mistaken for the general voice. He could not persuade himself that the State Govtts & Sovereignties were so much the idols of the people, nor a Natl Govt so obnoxious to them, as some supposed. Why sd a Natl Govt be unpopular? Has it less dignity? will each Citizen enjoy under it less liberty or protection? Will a Citizen of Delaware be degraded by becoming a Citizen of the United States? Where do the people look at present for relief from the evils of which they complain? Is it from an internal reform of their Govts? no, Sir. It is from the NatlCouncils that relief is expected. For these reasons he did not fear, that the people would not follow us into a national Govt and it will be a further recommendation of Mr R.’s plan that it is to be submitted to them, and not to the Legislatures, for ratification.

Proceeding now to the 1st point on which he had contrasted the two plans, he observed that anxious as he was for some augmentation of the federal powers, it would be with extreme reluctance indeed that he could ever consent to give powers to Congs he had two reasons either of wch was sufficient. 1. Congs as a Legislative body does not stand on the people. 2. it is a single body. 1. He would not repeat the remarks he had formerly made on the principles of Representation. He would only say that an inequality in it, has ever been a poison contaminating every branch of Govt In G. Britain where this poison has had a full operation, the security of private rights is owing entirely to the purity of Her tribunals of Justice, the Judges of which are neither appointed nor paid, by a venal Parliament. Edition: current; Page: [97] The political liberty of that Nation, owing to the inequality of representation is at the mercy of its rulers. He means not to insinuate that there is any parallel between the situation of that Country & ours at present. But it is a lesson we ought not to disregard, that the smallest bodies in G. B. are notoriously the most corrupt. Every other source of influence must also be stronger in small than large bodies of men. When Lord Chesterfield12 had told us that one of the Dutch provinces had been seduced into the views of France, he need not have added, that it was not Holland, but one of the smallest of them. There are facts among ourselves which are known to all. Passing over others, he will only remark that the Impost, so anxiously wished for by the public was defeated not by any of the larger States in the Union. 2. Congress is a single Legislature. Despotism comes on Mankind in different Shapes, sometimes in an Executive, sometimes in a Military, one. Is there no danger of a Legislative despotism? Theory & practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single House there is no check, but the inadequate one, of the virtue & good sense of those who compose it.

On another great point, the contrast was equally favorable to the plan reported by the Committee of the whole. It vested the Executive powers in a single Magistrate. The plan of N. Jersey, vested them in a plurality. In order to controul the Legislative authority, you must divide it. In order to controul the Executive you must unite it. One man will be more responsible than three. Three will contend among themselves till one becomes the master of his colleagues. In the triumvirates of Rome first Caesar, then Augustus, are witnesses of this truth. The Kings of Sparta, & the Consuls of Rome prove also the factious consequences of dividing the Executive Magistracy. Having already taken up so much time he wd not he sd proceed to any of the other points. Those on which he had dwelt, are sufficient of themselves: and on a decision of them, the fate of the others will depend.

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Tuesday June 19th. In Committee of whole on the Propositions of Mr Patterson

. . .

(Of Mr Randolph’s plan as reported from the Committee). the 1. propos: “that a Natl Govt ought to be established consisting &c.” being taken up in the House.

Mr Wilson observed that by a Natl Govt he did not mean one that would swallow up the State Govts as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter. He thought, contrary to the opinion of [Col. Hamilton] that they might not only subsist but subsist on friendly terms with the former. They were absolutely necessary for certain purposes which the former could not reach. All large Governments must be subdivided into lesser jurisdictions. As Examples he mentioned Persia, Rome, and particularly the divisions & subdivisions of England by Alfred.13

. . .

Mr Wilson, could not admit the doctrine that when the Colonies became independent of G. Britain, they became independent also of each other. He read the declaration of Independence, observing thereon that the United Colonies were declared to be free & independent States; and inferring that they were independent, not individually but Unitedly and that they were confederated as they were independent, States.

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Wednesday June 20. 1787. In Convention

Mr William Blount14 from N. Carolina took his seat.

1st propos: of the Report of Come of the whole before the House.

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Edition: current; Page: [99]

Mr Wilson, urged the necessity of two branches; observed that if a proper model were not to be found in other Confederacies it was not to be wondered at. The number of them was small & the duration of some at least short. The Amphyctionic & Achaean were formed in the infancy of political Science; and appear by their History & fate, to have contained radical defects. The Swiss & Belgic Confederacies were held together not by any vital principle of energy but by the incumbent pressure of formidable neighbouring nations: The German owed its continuance to the influence of the H. of Austria.15 He appealed to our own experience for the defects of our Confederacy. He had been 6 years in the 12 since the commencement of the Revolution, a member of Congress, and had felt all its weaknesses. He appealed to the recollection of others whether on many important occasions, the public interest had not been obstructed by the small members of the Union. The success of the Revolution was owing to other causes, than the Constitution of Congress. In many instances it went on even agst the difficulties arising from Congs themselves. He admitted that the large States did accede as had been stated, to the Confederation in its present form. But it was the effect of necessity not of choice. There are other instances of their yielding from the same motive to the unreasonable measures of the small States. The situation of things is now a little altered. He insisted that a jealousy would exist between the State Legislatures & the General Legislature: observing that the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Genl or State Legislatures, provided it be exercised most for his happiness. His representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl: with the eye of a jealous rival. He observed that the addresses of Congs to the people at large, had always been better received & produced greater effect than those made to the Legislatures.

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Edition: current; Page: [100]

Thursday June 21. In Convention

Mr Jonathan Dayton16 from N. Jersey took his seat.

Docr Johnson.17

. . .

Mr Wilson’s respect for Docr Johnson, added to the importance of the subject led him to attempt, unprepared as he was, to solve the difficulty which had been started. It was asked how the Genl Govt and individuality of the particular States could be reconciled to each other; and how the latter could be secured agst the former? Might it not, on the other side be asked how the former was to be secured agst the latter? It was generally admitted that a jealousy & rivalship would be felt between the Genl & particular Govts. As the plan now stood, tho’ indeed contrary to his opinion, one branch of the Genl (the Senate or second branch) was to be appointed by the State Legislatures. The State Legislatures, therefore, by this participation in the Genl Govt would have an opportunity of defending their rights. Ought not a reciprocal opportunity to be given to the Genl Govt of defending itself by having an appointment of some one constituent branch of the State Govts. If a security be necessary on one side, it wd seem reasonable to demand it on the other. But taking the matter in a more general view, he saw no danger to the States from the Genl Govt. In case a combination should be made by the large ones it wd produce a general alarm among the rest; and the project wd be frustrated. But there was no temptation to such a project. The States having in general a similar interest, in case of any proposition in the National Legislature to encroach on the State Legislatures, he conceived a general alarm wd take place in the National Legislature itself, that it would communicate itself to the State Legislatures, and wd finally spread among the people at large. The Genl Govt will be as ready to preserve the rights of the States as the latter Edition: current; Page: [101] are to preserve the rights of individuals; all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the State Govts in possession of what the people wish them to retain. He could not discover, therefore any danger whatever on the side from which it had been apprehended. On the contrary, he conceived that in spite of every precaution the general Govt would be in perpetual danger of encroachments from the State Govts.

. . .

The third resolution of the Report taken into consideration.

Genl Pinkney moved “that the 1st branch, instead of being elected by the people, shd be elected in such manner as the Legislature of each State should direct.” He urged 1. that this liberty would give more satisfaction, as the Legislatures could then accomodate the mode to the conveniency & opinions of the people 2. that it would avoid the undue influence of large Counties which would prevail if the elections were to be made in districts as must be the mode intended by the Report of the Committee. 3. that otherwise disputed elections must be referred to the General Legislature which would be attended with intolerable expence and trouble to the distant parts of the republic.

Mr L. Martin seconded the Motion.

. . .

Mr Wilson considered the election of the 1st branch by the people not only as the corner Stone, but as the foundation of the fabric: and that the difference between a mediate & immediate election was immense. The difference was particularly worthy of notice in this respect: that the Legislatures are actuated not merely by the sentiment of the people; but have an official sentiment opposed to that of the Genl Govt and perhaps to that of the people themselves.

. . .

Election of the 1st branch “for the term of three years,” considered

Mr Randolph moved to strike out, “three years” and insert “two years”—he was sensible that annual elections were a source of great mischiefs in the States, yet it was the want of such checks agst the popular intemperence as were now proposed, that rendered them so mischievous.

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Edition: current; Page: [102]

Mr Wilson being for making the 1st branch an effectual representation of the people at large, preferred an annual election of it. This frequency was most familiar & pleasing to the people. It would be not more inconvenient to them, than triennial elections, as the people in all the States have annual meetings with which the election of the National representatives might be made to co-incide. He did not conceive that it would be necessary for the Natl Legisl: to sit constantly; perhaps not half—perhaps not one fourth of the year.

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Friday June 22. In Convention

The clause in Resol. 3. “to receive fixed stipends to be paid out of the Nationl Treasury” considered.

. . .

Mr Wilson was agst fixing the compensation as circumstances would change and call for a change of the amount. He thought it of great moment that the members of the Natl Govt should be left as independent as possible of the State Govts in all respects.

. . .

Mr Wilson moved that the Salaries of the 1st branch “be ascertained by the National Legislature,” and be paid out of the Natl Treasury.

. . .

The present Mr Pitt18 and Lord Bolingbroke19 were striking instances.

Mr Ghorum20 moved to strike out the last member of 3 Resol: concerning ineligibility of members of the 1st branch to offices during the term of their membership & for one year after. He considered it as unnecessary & injurious. It was true abuses had been displayed in G. B. but no one cd say how Edition: current; Page: [103] far they might have contributed to preserve the due influence of the Govtnor what might have ensued in case the contrary theory had been tried.

. . .

Mr Wilson was agst fettering elections, and discouraging merit. He suggested also the fatal consequence in time of war, of rendering perhaps the best Commanders ineligible: appealing to our situation during the late war, and indirectly leading to a recollection of the appointment of the Commander in Chief out of Congress.

. . .

Saturday June 23. In Convention

. . .

Mr Madison renewed his motion yesterday made & waved to render the members of the 1st branch “ineligible during their term of service, & for one year after—to such offices only as should be established, or the emoluments thereof, augmented by the Legislature of the U. States during the time of their being members.” He supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut agst them: it might properly be left open for the appointtof members to other offices as an encouragemt to the Legislative service.

. . .

Mr Wilson supported the motion. The proper cure he said for corruption in the Legislature was to take from it the power of appointing to offices. One branch of corruption would indeed remain, that of creating unnecessary offices, or granting unnecessary salaries, and for that the amendment would be a proper remedy. He animadverted on the impropriety of stigmatizing with the name of venality the laudable ambition of rising into the honorable offices of the Government; an ambition most likely to be felt in the early & most incorrupt period of life, & which all wise & free Govts had deemed it sound policy, to cherish, not to check. The members of the Legislature have perhaps the hardest & least profitable task of any who engage in the service of the state. Ought this merit to be made a disqualification?

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Edition: current; Page: [104]

Monday June 25. In Convention

The mode of constituting the 2d branch being under consideration.

The word “national” was struck out and “United States” inserted.

. . .

Mr Wilson. the question is shall the members of the 2d branch be chosen by the Legislatures of the States? When he considered the amazing extent of Country—the immense population which is to fill it, the influence which the Govt we are to form will have, not only on the present generation of our people & their multiplied posterity, but on the whole Globe, he was lost in the magnitude of the object. The project of Henry the 4th & his Statesmen was but the picture in miniature of the great portrait to be exhibited. He was opposed to an election by the State Legislatures. In explaining his reasons it was necessary to observe the twofold relation in which the people would stand. 1. as Citizens of the Genl Govt 2. as Citizens of their particular State. The Genl Govt was meant for them in the first capacity: the State Govts in the second. Both Govts were derived from the people—both meant for the people—both therefore ought to be regulated on the same principles. The same train of ideas which belonged to the relation of the Citizens to their State Govts were applicable to their relation to the Genl Govt and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of State Govts. With respect to the province & objects of the Genl Govt they should be considered as having no existence. The election of the 2d branch by the Legislatures, will introduce & cherish local interests & local prejudices. The GenlGovt is not an assemblage of States, but of individuals for certain political purposes—it is not meant for the States, but for the individuals composing them; the individuals therefore not the States, ought to be represented in it: A proportion in this representation can be preserved in the 2d as well as in the 1st branch; and the election can be made by electors chosen by the people for that purpose. He moved an amendment to that effect which was not seconded.

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Edition: current; Page: [105]

Tuesday June 26. In Convention

The duration of the 2d branch under consideration.

Mr Ghorum moved to fill the blank with “six years,” one third of the members to go out every second year.

Mr Wilson 2ded the motion.

. . .

Mr Wilson did not mean to repeat what had fallen from others, but wdadd an observation or two which he believed had not yet been suggested. Every nation may be regarded in two relations 1. to its own citizens. 2 to foreign nations. It is therefore not only liable to anarchy & tyranny within, but has wars to avoid & treaties to obtain from abroad. The Senate will probably be the depositary of the powers concerning the latter objects. It ought therefore to be made respectable in the eyes of foreign Nations. The true reason why G. Britain has not yet listened to a commercial treaty with us has been, because she had no confidence in the stability or efficacy of our Government. 9 years with a rotation, will provide these desirable qualities; and give our Govt an advantage in this respect over Monarchy itself. In a monarchy much must always depend on the temper of the man. In such a body, the personal character will be lost in the political. He wdadd another observation. The popular objection agst appointing any public body for a long term was that it might by gradual encroachments prolong itself first into a body for life, and finally become a hereditary one. It would be a satisfactory answer to this objection that as ⅓ would go out triennially, there would be always three divisions holding their places for unequal terms, and consequently acting under the influence of different views, and different impulses—On the question for 9 years, ⅓ to go out triennially.

. . .

Mr Butler moved to strike out the ineligibility of Senators to State offices.

Mr Williamson seconded the motion.

Mr Wilson remarked the additional dependence this wd create in the Senators on the States. The longer the time he observed allotted to the officer, the more compleat will be the dependance, if it exists at all.

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Thursday June 28th. In Convention

. . .

Mr Wilson. The leading argument of those who contend for equality of votes among the States is that the States as such being equal, and being represented not as districts of individuals, but in their political & corporate capacities, are entitled to an equality of suffrage. According to this mode of reasoning the representation of the boroughs in Engld which has been allowed on all hands to be the rotten part of the Constitution, is perfectly right & proper. They are like the States represented in their corporate capacity; like the States therefore they are entitled to equal voices, old Sarum21 to as many as London. And instead of the injury supposed hitherto to be done to London, the true ground of complaint lies with old Sarum: for London instead of two which is her proper share, sends four representatives to Parliament.

. . .

Saturday June 30. 1787. In Convention

Mr Brearly moved that the Presidt write to the Executive of N. Hamshire, informing it that the business depending before the Convention was of such a nature as to require the immediate attendance of the deputies of that State.

. . .

Mr Wilson wished to know whether it would be consistent with the rule or reason of secresy, to communicate to N. Hamshire that the business was of such a nature as the motion described. It wd spread a great alarm. Besides he doubted the propriety of soliciting any State on the subject; the meeting being merely voluntary—on the motion of Mr Brearly Masts no. Cont no. N. Y. ay. N. J. ay Pa not on ye floor. Del. not on floor. Md divd Vano. N. C. no. S. C. no. Geo. not on floor.

Edition: current; Page: [107]

The motion of Mr Elseworth22 resumed for allowing each State an equal vote in ye 2d branch.

Mr Wilson did not expect such a motion after the establishment of yecontrary principle in the 1st branch; and considering the reasons which would oppose it, even if an equal vote had been allowed in the 1st branch. The Gentleman from Connecticut [Mr Elseworth] had pronounced that if the motion should not be acceded to, of all the States North of Pena one only would agree to any Genl Government. He entertained more favorable hopes of Connt and of the other Northern States. He hoped the alarms exceeded their cause, and that they would not abandon a Country to which they were bound by so many strong and endearing ties. But should the deplored event happen, it would neither stagger his sentiments nor his duty. If the minority of the people of America refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds. The votes of yesterday agst the just principle of representation, were as 22 to 90 of the people of America. Taking the opinions to be the same on this point, and he was sure if there was any room for change, it could not be on the side of the majority, the question will be shall less than ¼ of the U. States withdraw themselves from the Union; or shall more than ¾ renounce the inherent, indisputable, and unalienable rights of men, in favor of the artificial systems of States. If issue must be joined, it was on this point he would chuse to join it. The gentlemen from Connecticut in supposing that the prepondenancy secured to the majority in the 1st branch had removed the objections to an equality of votes in the 2d branch for the security of the minority, narrowed the case extremely. Such an equality will enable the minority to controul in all cases whatsoever, the sentiments and interests of the majority. Seven States will controul six: Seven States, according to the estimates that had been used, composed 24/90 of the whole people. It would be in the power then of less than ⅓ to overrule ⅔ whenever a question should happen to divide the States in that manner. Can we forget for whom we are forming a Government? Is it for men, or for the imaginary beings called States? Will Edition: current; Page: [108] our honest Constituents be satisfied with metaphysical distinctions? Will they, ought they to be satisfied with being told that the one third compose the greater number of States? The rule of suffrage ought on every principle to be the same in the 2d as in the 1st branch. If the Government be not laid on this foundation, it can be neither solid nor lasting. Any other principle will be local, confined & temporary. This will expand with the expansion, and grow with the growth of the U. States.—Much has been said of an imaginary combination of three States. Sometimes a danger of monarchy, sometimes of aristocracy, has been charged on it. No explanation however of the danger has been vouchsafed. It would be easy to prove both from reason & history that rivalships would be more probable than coalitions; and that there are no coinciding interests that could produce the latter. No answer has yet been given to the observations of [Mr Madison] on this subject. Should the Executive Magistrate be taken from one of the large States would not the other two be thereby thrown into the scale with the other States? Whence then the danger of monarchy? Are the people of the three large States more aristocratic than those of the small ones? Whence then the danger of aristocracy from their influence? It is all a mere illusion of names. We talk of States, till we forget what they are composed of. Is a real & fair majority, the natural hot-bed of aristocracy? It is a part of the definition of this species of Govt or rather of tyranny, that the smaller number governs the greater. It is true that a majority of States in the 2dbranch can not carry a law agst a majority of the people in the 1st. But this removes half only of the objection. Bad Governts are of two sorts. 1. that which does too little. 2. that which does too much: that which fails thro’ weakness; and that which destroys thro’ oppression. Under which of these evils do the U. States at present groan? under the weakness and ineffi-ciency of its Governt. To remedy this weakness we have been sent to this Convention. If the motion should be agreed to, we shall leave the U. S. fettered precisely as heretofore; with the additional mortification of seeing the good purposes of ye fair represention of the people in the 1st branch, defeated in 2d. Twenty four will still controul sixty six. He lamented that such a disagreement should prevail on the point of representation, as he did not forsee that it would happen on the other point most contested, the boundary between the Genl & the local authorities. He thought the States necessary & valuable parts of a good system.

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Edition: current; Page: [109]

Mr Wilson admitted the question concerning the number of Senators, to be embarrassing. If the smallest States be allowed one, and the others in proportion, the Senate will certainly be too numerous. He looked forward to the time when the smallest States will contain 100,000 souls at least. Let there be then one Senator in each for every 100,000 souls and let the States not having that no of inhabitants be allowed one. He was willing himself to submit to this temporary concession to the small States; and threw out the idea as a ground of compromise.

. . .

Monday July 2d. In Convention

On the question for allowing each State one vote in the second branch as moved by Mr Elseworth,

. . .

General Pinkney. was willing the motion might be considered. He did not entirely approve it. He liked better the motion of Docr Franklin. Some compromise seemed to be necessary: the States being exactly divided on the question for an equality of votes in the 2d branch. He proposed that a Committee consisting of a member from each State should be appointed to devise & report some compromise.

. . .

Mr Wilson objected to the Committee, because it would decide according to that very rule of voting which was opposed on one side. Experience in Congs had also proved the inutility of Committees consisting of members from each State.

. . .

Thursday July 5th. In Convention

Mr Gerry delivered in from the Committee appointed on Monday last the following Report.

“The Committee to whom was referred the 8th Resol. of the Report from the Committee of the whole House, and so much of the 7th as has not been Edition: current; Page: [110] decided on, submit the following Report: That the subsequent propositions be recommended to the Convention on condition that both shall be generally adopted. I. that in the Ist branch of the Legislature each of the States now in the Union shall be allowed 1 member for every 40,000 inhabitants of the description reported in the 7th Resolution of the Comeof the whole House: that each State not containing that number shall be allowed 1 member: that all bills for raising or appropriating money, and for fixing the Salaries of the officers of the Governt of the U. States shall originate in the 1st branch of the Legislature, and shall not be altered or amended by the 2d branch: and that no money shall be drawn from the public Treasury. But in pursuance of appropriations to be originated in the 1st branch” II. That in the 2d branch each State shall have an equal vote.”

. . .

Mr Wilson thought the Committee had exceeded their powers.

. . .

Mr Wilson was for a division of the question: otherwise it wd be a leap in the dark.

. . .

Friday July 6th. In Convention

Mr Govr Morris moved to commit so much of the Report as relates to “1 member for every 40,000 inhabitants”

. . .

Mr Wilson 2ded the motion; but with a view of leaving the Committee under no implied shackles.

. . .

Mr Wilson signified that his view in agreeing to the commitmt was that the Come might consider the propriety of adopting a scale similar to that established by the Constitution of Masts which wd give an advantage to yesmall States without substantially departing from a rule of proportion.

Mr Wilson & Mr Mason moved to postpone the clause relating to money bills in order to take up the clause relating to an equality of votes in the second branch.

. . .

Edition: current; Page: [111]

The 1st clause relating to the originating of money bills was then resumed.

. . .

Mr Wilson could see nothing like a concession here on the part of the smaller States. If both branches were to say yes or no, it was of little consequence which should say yes or no first, which last. If either was indiscriminately to have the right of originating, the reverse of the Report, would he thought be most proper; since it was a maxim that the least numerous body was the fittest for deliberation; the most numerous for decision. He observed that this discrimination had been transcribed from the British into several American constitutions. But he was persuaded that on examination of the American experiments it would be found to be a trifle light as air. Nor could he ever discover the advantage of it in the Parliamentary history of G. Britain. He hoped if there was any advantage in the privilege, that it would be pointed out.

. . .

Mr Wilson. If he had proposed that the 2d branch should have an independent disposal of public money, the observations of [Col Mason] would have been a satisfactory answer. But nothing could be farther from what he had said. His question was how is the power of the 1st branch increased or that of the 2d diminished by giving the proposed privilege to the former? Where is the difference, in which branch it begins if both must concur, in the end?

. . .

Mr Martin said that it was understood in the Committee that the diffi-culties and disputes which had been apprehended, should be guarded agstin the detailing of the plan.

Mr Wilson. The difficulties & disputes will increase with the attempts to define & obviate them. Queen Anne was obliged to dissolve her Parliamt in order to terminate one of these obstinate disputes between the two Houses. Had it not been for the mediation of the Crown, no one can say what the result would have been. The point is still sub judice23 in England. He approved of the principles laid down by the Hon’ble President [Doctr Franklin] his Colleague, as to the expediency of keeping the Edition: current; Page: [112] people informed of their money affairs. But thought they would know as much, and be as well satisfied, in one way as in the other.

. . .

Saturday July 7. In Convention

“Shall the clause allowing each State one vote in the 2d branch, stand as part of the Report”? being taken up—

. . .

Mr Wilson was not deficient in a conciliating temper, but firmness was sometimes a duty of higher obligation. Conciliation was also misapplied in this instance. It was pursued here rather among the Representatives, than among the Constituents; and it wd be of little consequence, if not established among the latter; and there could be little hope of its being established among them if the foundation should not be laid in justice and right.

. . .

Wednesday July 11. In Convention

Mr Randolph’s motion requiring the Legislre to take a periodical census for the purpose of redressing inequalities in the Representation, was resumed.

. . .

Mr Williamson was for making it the duty of the Legislature to do what was right & not leaving it at liberty to do or not do it. He moved that Mr Randolph’s proposition be postpond in order to consider the following “that in order to ascertain the alterations that may happen in the population & wealth of the several States, a census shall be taken of the free white inhabitants and ⅗ths of those of other descriptions on the 1styear after this Government shall have been adopted and every year thereafter; and that the Representation be regulated accordingly.”

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Edition: current; Page: [113]

Mr Wilson had himself no objection to leaving the Legislature entirely at liberty. But considered wealth as an impracticable rule.

. . .

the next clause as to ⅗ of the negroes considered.

. . .

Mr Wilson did not well see on what principle the admission of blacks in the proportion of three fifths could be explained. Are they admitted as Citizens? then why are they not admitted on an equality with White Citizens? are they admitted as property? then why is not other property admitted into the computation? These were difficulties however which he thought must be overruled by the necessity of compromise. He had some apprehensions also from the tendency of the blending of the blacks with the whites, to give disgust to the people of Pena as had been intimated by his Colleague [Mr Govr Morris]. But he differed from him in thinking numbers of inhabts so incorrect a measure of wealth. He had seen the Western settlemts of Pa and on a comparison of them with the City of Philada could discover little other difference, than that property was more unequally divided among individuals here than there. Taking the same number in the aggregate in the two situations he believed there would be little difference in their wealth and ability to contribute to the public wants.

. . .

Thursday July 12. In Convention

Mr Govr Morris moved to add to the clause empowering the Legislature to vary the Representation according to the principles of wealth & number of inhabts a “proviso that taxation shall be in proportion to Representation.”

. . .

Mr Wilson approved the principle, but could not see how it could be carried into execution; unless restrained to direct taxation.

. . .

Mr Wilson observed that less umbrage would perhaps be taken agst an admission of the slaves into the Rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by Edition: current; Page: [114] saying that they should enter into the rule of taxation: and as representation was to be according to taxation the end would be equally attained. He accordingly moved & as 2ded so to alter the last clause adopted by the House, that together with the amendment proposed the whole should read as follows “provided always that the representation ought to be proportioned according to direct taxation, and in order to ascertain the alterations in the direct taxation which may be required from time to time by the changes in the relative circumstances of the States. Resolved that a census be taken within two years from the first meeting of the Legislature of the U. States, and once within the term of every years afterwards of all the inhabitants of the U. S. in the manner and according to the ratio recommended by Congress in their Resolution of April 18. 1783; and that the Legislature of the U. S. shall proportion the direct taxation accordingly.”

. . .

Friday July 13. In Convention

It being moved to postpone the clause in the Report of the Committee of Eleven as to the originating of money bills in the first branch, in order to take up the following—“that in the 2d branch each State shall have an equal voice.”

. . .

Mr Wilson hoped the motion would not be withdrawn. If it shd it will be made from another quarter. The rule will be as reasonable & just before, as after a Census. As to fractional numbers, the Census will not distroy, but ascertain them. And they will have the same effect after as before the Census: for as he understands the rule, it is to be adjusted not to the number of inhabitants, but of Representatives.

. . .

On the motion of Mr Randolph, the vote of saturday last authorising the Legislre to adjust from time to time, the representation upon the principles of wealth & numbers of inhabitants was reconsidered by common consent in order to strike out “Wealth” and adjust the resolution to that requiring periodical revisions according to the number of whites & three fifths of Edition: current; Page: [115] the blacks: the motion was in the words following—“But as the present situation of the States may probably alter in the number of their inhabitants, that the Legislature of the U. S. be authorized from time to time to apportion the number of representatives: and in case any of the States shall hereafter be divided or any two or more States united or new States created within the limits of the U. S. the Legislature of U. S. shall possess authority to regulate the number of Representatives in any of the foregoing cases, upon the principle of their number of inhabitants; according to the provisions hereafter mentioned.”

. . .

Mr Wilson. If a general declaration would satisfy any gentleman he had no indisposition to declare his sentiments. Conceiving that all men wherever placed have equal rights and are equally entitled to confidence, he viewed without apprehension the period when a few States should contain the superior number of people. The majority of people wherever found ought in all questions to govern the minority. If the interior Country should acquire this majority, it will not only have the right, but will avail themselves of it whether we will or no. This jealousy misled the policy of G. Britain with regard to America. The fatal maxims espoused by her were that the Colonies were growing too fast, and that their growth must be stinted in time. What were the consequences? first. enmity on our part, then actual separation. Like consequences will result on the part of the interior settlements, if like jealousy & policy be pursued on ours. Further, if numbers be not a proper rule, why is not some better rule pointed out. No one has yet ventured to attempt it. Congs have never been able to discover a better. No State as far as he had heard, has suggested any other. In 1783, after elaborate discussion of a measure of wealth all were satisfed then as they are now that the rule of numbers, does not differ much from the combined rule of numbers & wealth. Again he could not agree that property was the sole or the primary object of Governt & society. The cultivation & improvement of the human mind was the most noble object. With respect to this object, as well as to other personal rights, numbers were surely the natural & precise measure of Representation. And with respect to property, they could not vary much from the precise measure. In no point of view however could the establishmt of numbers as the rule of representation in the 1st branch vary his opinion as to the impropriety of letting a vicious principle into the 2d branch.—On the Question to strike Edition: current; Page: [116] out wealth & to make the change as moved by Mr Randolph, it passed in the affirmative—

. . .

Saturday July 14. In Convention

Mr L. Martin called for the question on the whole report including the parts relating to the origination of money bills, and the equality of votes in the 2d branch.

. . .

Mr Wilson traced the progress of the report through its several stages, remarking yt when on the question concerning an equality of votes, the House was divided, our Constituents had they voted as their representatives did, would have stood as ⅔ agst the equality, and ⅓ only in favor of it. This fact would ere long be known and it will appear that this fundamental point has been carried by ⅓ agst ⅔. What hopes will our Constituents entertain when they find that the essential principles of justice have been violated in the outset of the Governmt As to the privilege of originating money bills, it was not considered by any as of much moment, and by many as improper in itself. He hoped both clauses wd be reconsidered. The equality of votes was a point of such critical importance, that every opportunity ought to be allowed, for discussing and collecting the mind of the Convention on it.

. . .

Mr Wilson was not surprised that those who say that a minority is more than the majority should say that the minority is stronger than the majority. He supposed the next assertion will be that they are richer also; though he hardly expected it would be persisted in when the States shall be called on for taxes & troops—

. . .

Mr Pinkney moved that instead of an equality of votes the States should be represented in the 2d branch as follows: N. H. by 2. members. Mas. 4. R. I. 1. Cont 3. N. Y. 3. N. J. 2. Pa 4. Del 1. Md 3. Virga 5. N. C. 3. S. C. 3. Geo. 2. making in the whole 36.

Mr Wilson seconds the motion.

. . .

Edition: current; Page: [117]

Mr Wilson would add a few words only. If equality in the 2d branch was an error that time would correct, he should be less anxious to exclude it being sensible that perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided. A vice in the Representation, like an error in the first concoction, must be followed by disease, convulsions, and finally death itself. The justice of the general principle of proportional representation has not in argument at least been yet contradicted. But it is said that a departure from it so far as to give the States an equal vote in one branch of the Legislature is essential to their preservation. He had considered this positon maturely, but could not see its application. That the States ought to be preserved he admitted. But does it follow that an equality of votes is necessary for the purpose? Is there any reason to suppose that if their preservation should depend more on the large than on the small States the security of the States agstthe Genl Government would be diminished? Are the large States less attached to their existence, more likely to commit suicide, than the small? An equal vote then is not necessary as far as he can conceive: and is liable among other objections to this insuperable one: The great fault of the existing confederacy is its inactivity. It has never been a complaint agstCongs that they governed overmuch. The complaint has been that they have governed too little. To remedy this defect we were sent here. Shall we effect the cure by establishing an equality of votes as is proposed? no: this very equality carries us directly to Congress: to the system which it is our duty to rectify. The small States cannot indeed act, by virtue of this equality, but they may controul the Govt as they have done in Congs This very measure is here prosecuted by a minority of the people of America. Is then the object of the Convention likely to be accomplished in this way? Will not our Constituents say, we sent you to form an efficient Govt and you have given us one more complex indeed, but having all the weakness of the former Governt. He was anxious for uniting all the States under one Governt. He knew there were some respectable men who preferred three confederacies, united by offensive & defensive alliances. Many things may be plausibly said, some things may be justly said, in favor of such a project. He could not however concur in it himself; but he thought nothing so pernicious as bad first principles.

. . .

Edition: current; Page: [118]

Tuesday July 17. In Convention

The 6th Resoln in the Report of the Come of the Whole relating to the powers, which had been postponed in order to consider the 7 & 8th relating to the constitution of the Natl Legislature, was now resumed.

Mr Sherman observed that it would be difficult to draw the line between the powers of the Genl Legislatures, and those to be left with the States; that he did not like the definition contained in the Resolution, and proposed in place of the words “of individual Legislation” line 4. inclusive, to insert “to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the Government of the individual States in any matters of internal police which respect the Govt of such States only, and wherein the general welfare of the U. States is not concerned.”

Mr Wilson 2ded the amendment as better expressing the general principle.

. . .

9th Resol: “that Natl Executive consist of a single person.” Agd to nem. con.

“To be chosen by the National Legisl:”

. . .

Mr Wilson. two arguments have been urged agst an election of the Executive Magistrate by the people. 1 the example of Poland where an Election of the supreme Magistrate is attended with the most dangerous commotions. The cases he observed were totally dissimilar. The Polish nobles have resources & dependents which enable them to appear in force, and to threaten the Republic as well as each other. In the next place the electors all assemble in one place: which would not be the case with us. The 2d argt is that a majority of the people would never concur. It might be answered that the concurrence of a majority of people is not a necessary principle of election, nor required as such in any of the States. But allowing the objection all its force, it may be obviated by the expedient used in Masts where the Legislature by majority of voices, decide in case a majority of people do not concur in favor of one of the candidates. This would restrain the choice to a good nomination at least, and prevent in a great degree intrigue & cabal. A particular objection with him agst an absolute election by the Legislre was that the Exec: in that case would be too dependent Edition: current; Page: [119] to stand the mediator between the intrigues & sinister views of the Representatives and the general liberties & interests of the people.

. . .

Mr Wilson. could not see the contrariety stated [by Col. Mason] The Legislre might deserve confidence in some respects, and distrust in others. In acts which were to affect them & yr Constituents precisely alike confidence was due. In others jealousy was warranted. The appointment to great offices, where the Legislre might feel many motives, not common to the public confidence was surely misplaced. This branch of business it was notorious was most corruptly managed of any that had been committed to legislative bodies.

. . .

Wednesday July 18. In Convention

. . .

Resol. 11 “that a Natl Judiciary be estabd to consist of one supreme tribunal.” agd to nem. con.

“The Judges of which to be appointd by the 2d branch of the NatlLegislature.”

. . .

Mr Wilson, still wd prefer an appointmt by the Executive; but if that could not be attained, wd prefer in the next place, the mode suggested by Mr Ghorum. He thought it his duty however to move in the first instance “that the Judges be appointed by the Executive.” Mr Govr Morris 2ded the motion.

. . .

Resol. 15. that provision ought to be made for the continuance of Congs &c. & for the completion of their engagements.

. . .

Mr Wilson did not entirely approve of the manner in which the clause relating to the engagements of Congs was expressed, but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the Confederacy might be dissolved along with the Governt under which they were contracted.

. . .

Edition: current; Page: [120]

Resol. 16. “That a Republican Constitution & its. existing laws ought to be guarantied to each State by the U. States.”

. . .

Mr Wilson. The object is merely to secure the States agst dangerous commotions, insurrections and rebellions.

. . .

Mr Wilson moved as a better expression of the idea, “that a Republican form of Governmt shall be guarantied to each State & that each State shall be protected agst foreign & domestic violence.

This seeming to be well received, Mr Madison & Mr Randolph withdrew their propositions & on the Question for agreeing to Wilson’s motion, it passed nem. con.

. . .

Thursday July 19. In Convention

On reconsideration of the vote rendering the Executive re-eligible a 2d time, Mr Martin moved to reinstate the words “to be ineligible a 2dtime.”

. . .

Mr Wilson. It seems to be the unanimous sense that the Executive should not be appointed by the Legislature, unless he be rendered ineligible a 2d time: he perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people.

. . .

Friday July 20. In Convention

. . .

“to be removable on impeachment and conviction for mal practice or neglect of duty.” see Resol: 9.

. . .

Mr Wilson concurred in the necessity of making the Executive impeachable whilst in office.

. . .

Edition: current; Page: [121]

Mr Wilson observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive, ought to be subject to impeachment & removal.

. . .

Docr McClurg asked whether it would not be necessary, before a Committee for detailing the Constitution should be appointed, to determine on the means by which the Executive is to carry the laws into effect, and to resist combinations agst them. Is he to have a military force for the purpose, or to have the command of the Militia, the only existing force that can be applied to that use? As the Resolutions now stand the Committee will have no determinate directions on this great point.

Mr Wilson thought that some additional directions to the Committee wd be necessary.

. . .

Saturday July 21. In Convention

. . .

Mr Wilson moved as an amendment to Resoln 10. that the supreme NatlJudiciary should be associated with the Executive in the Revisionary power. This proposition had been before made and failed: but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort: The Judiciary ought to have an opportunity of remonstrating agst projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.—

. . .

Mr Wilson. The separation of the departments does not require that they should have separate objects but that they should act separately tho’ Edition: current; Page: [122] on the same objects. It is necessary that the two branches of the Legislature should be separate and distinct, yet they are both to act precisely on the same object.

. . .

Mr Wilson. The proposition is certainly not liable to all the objections which have been urged agst it. According [to Mr Gerry] it will unite the Executive & Judiciary in an offensive & defensive alliance agst the Legislature. According to Mr Ghorum it will lead to a subversion of the Executive by the Judiciary influence. To the first gentleman the answer was obvious; that the joint weight of the two departments was necessary to balance the single weight of the Legislature. To the 1st objection stated by the other Gentleman it might be answered that supposing the prepossion to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient. To the 2d objection, that such a rule of voting might be provided in the detail as would guard agst it.

. . .

Monday July 23. In Convention

Mr John Langdon & Mr Nicholas Gilman24 from N. Hampshire, took their seats.

Resoln: 17. that provision ought to be made for future amendments of the articles of Union, agreed to, nem. con.

Resoln 18. “requiring the Legis: Execut: & Judy of the States to be bound by oath to support the articles of Union,” taken into consideration.

. . .

Mr Wilson said he was never fond of oaths, considering them as a left handed security only. A good Govt did not need them, and a bad one could not or ought not to be supported. He was afraid they might too Edition: current; Page: [123] much trammel the members of the Existing Govt–in case future alterations should be necessary; and prove an obstacle to Resol: 17. just agd to.

. . .

Tuesday July 24. In Convention

. . .

Mr L. Martin & Mr Gerry moved to re-instate the ineligibility of the Executive a 2d time.

. . .

Mr Wilson. The difficulties & perplexities into which the House is thrown proceed from the election by the Legislature which he was sorry had been reinstated. The inconveniency of this mode was such that he would agree to almost any length of time in order to get rid of the dependence which must result from it. He was persuaded that the longest term would not be equivalent to a proper mode of election; unless indeed it should be during good behaviour. It seemed to be supposed that at a certain advance in life, a continuance in office would cease to be agreeable to the officer, as well as desirable to the public. Experience had shewn in a variety of instances that both a capacity & inclination for public service existed—in very advanced stages. He mentioned the instance of a Doge of Venice25 who was elected after he was 80 years of age. The popes have generally been elected at very advanced periods, and yet in no case had a more steady or a better concerted policy been pursued than in the Court of Rome. If the Executive should come into office at 35. years of age, which he presumes may happen & his continuance should be fixt at 15 years. at the age of 50. in the very prime of life, and with all the aid of experience, he must be cast aside like a useless hulk. What an irreparable loss would the British Jurisprudence have sustained, had the age of 50. been fixt there as the ultimate limit of capacity or readiness to serve the public. The great luminary [LdMansfield] held his seat for thirty years after his arrival at that age. Notwithstanding what had been done he could not but hope that a better mode of election would yet be adopted; and one that would be more agreeable to Edition: current; Page: [124] the general sense of the House. That time might be given for further deliberation he wd move that the present question be postponed till tomorrow.

. . .

Mr Wilson. As the great difficulty seems to spring from the mode of election, he wd suggest a mode which had not been mentioned. It was that the Executive be elected for 6 years by a small number, not more than 15 of the Natl Legislature, to be drawn from it, not by ballot, but by lot and who should retire immediately and make the election without separating. By this mode intrigue would be avoided in the first instance, and the dependence would be diminished. This was not he said a digested idea and might be liable to strong objections.

. . .

Mr Wilson did not move this as the best mode. His opinions remained unshaken that we ought to resort to the people for the election. He seconded the postponement.

. . .

Wednesday July 25. In Convention

Clause relating to the Executive again under consideration.

. . .

Mr Gerry & Mr Butler moved to refer the resolution relating to the Executive (except the clause making it consist of a single person) to the Committee of detail.

. . .

Mr Wilson hoped that so important a branch of the system wd not be committed until a general principle shd be fixed by a vote of the House.

. . .

Thursday July 26. In Convention

. . .

“The 2d part, for disqualifying debtors, and persons having unsettled accounts,” being under consideration.

. . .

Edition: current; Page: [125]

Mr Wilson was for striking them out. They put too much power in the hands of the Auditors, who might combine with rivals in delaying settlements in order to prolong the disqualifications of particular men. We should consider that we are providing a Constitution for future generations, and not merely for the peculiar circumstances of the moment. The time has been, and will again be, when the public safety may depend on the voluntary aids of individuals which will necessarily open accts with the public, and when such accts will be a characteristic of patriotism. Besides a partial enumeration of cases will disable the Legislature from disqualifying odious & dangerous characters.

. . .

Edition: current; Page: [126]

The Constitution as Reported by the Committee of Detail, August 6, 1787.

On July 23 the convention’s delegates created the Committee of Detail to “prepare and report a Constitution” “conformable” to previously passed resolutions. James Wilson, John Rutledge, Edmund Randolph, and Oliver Ellsworth were appointed to the committee. According to Clinton Rossiter, Wilson “took upon himself the major responsibility for putting the resolutions of the Convention and the thoughts of his colleagues into the language of fundamental law” (1787: The Grand Convention, 202). Among the notable additions of this first draft of the Constitution was the list of enumerated powers which eventually became Article I, section 8 of the U.S. Constitution.

Monday August 6th In Convention

Mr John Francis Mercer from Maryland took his seat.

Mr Rutlidge delivered in the Report of the Committee of detail as follows: a printed copy being at the same time furnished to each member:

We the people of the States of New Hampshire, Massachussetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.

Article I

The stile of the Government shall be, “The United States of America.”

II

The Government shall consist of supreme legislative, executive; and judicial powers.

III

The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives and a Senate; Edition: current; Page: [127] each of which shall in all cases have a negative on the other. The Legislature shall meet on the first Monday in December every year.

IV

Sect. 1. The members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures.

Sect. 2. Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen in the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen.

Sect. 3. The House of Representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner herein after described, consist of sixty five Members, of whom three shall be chosen in New-Hampshire, eight in Massachusetts, one in Rhode-Island and Providence Plantations, five in Connecticut, six in New-York, four in New-Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North-Carolina, five in South-Carolina, and three in Georgia.

Sect. 4. As the proportions of numbers in different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more States may be united; as new States will be erected within the limits of the United States, the Legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for every forty thousand.

Sect. 5. All bills for raising or appropriating money, and for fixing the salaries of the officers of Government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the Public. Treasury, but in pursuance of appropriations that shall originate in the House of Representatives.

Sect. 6. The House of Representatives shall have the sole power of impeachment. It shall choose its Speaker and other officers.

Edition: current; Page: [128]

Sect. 7. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State, in the representation from which it shall happen.

V

Sect. 1. The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature. Each member shall have one vote.

Sect. 2. The Senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two and three. The seats of the members of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, of the third class at the expiration of the sixth year, so that a third part of the members may be chosen every second year.

Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen.

Sect. 4. The Senate shall chuse its own President and other officers.

VI

Sect. 1. The times and places and manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may at any time be altered by the Legislature of the United States.

Sect. 2. The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.

Sect. 3. In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day.

Edition: current; Page: [129]

Sect. 4. Each House shall be the judge of the elections, returns and qualifications of its own members.

Sect. 5. Freedom of speech and debate in the Legislature shall not be impeached or questioned in any Court or place out of the Legislature; and the members of each House shall, in all cases, except treason felony and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it.

Sect. 6. Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member.

Sect. 7. The House of Representatives, and the Senate, when it shall be acting in a legislative capacity, shall keep a journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each House, on any question, shall at the desire of one-fifth part of the members present, be entered on the journal.

Sect. 8. Neither House, without the consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate, when it shall exercise the powers mentioned in the article.

Sect. 9. The members of each House shall be ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected: and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards.

Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State, in which they shall be chosen.

Sect. 11. The enacting stile of the laws of the United States shall be. “Be it enacted by the Senate and Representatives in Congress assembled.”

Sect. 12. Each House shall possess the right of originating bills, except in the cases beforementioned.

Sect. 13. Every bill, which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated, who shall enter the objections at large on Edition: current; Page: [130] their journal and proceed to reconsider the bill. But if after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of the other House also, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return; in which case it shall not be a law.

VII

Sect. 1. The Legislature of the United States shall have the power to lay and collect taxes, duties, imposts and excises;

To regulate commerce with foreign nations, and among the several States;

To establish an uniform rule of naturalization throughout the United States;

To coin money;

To regulate the value of foreign coin;

To fix the standard of weights and measures;

To establish Post-offices;

To borrow money, and emit bills on the credit of the United States;

To appoint a Treasurer by ballot;

To constitute tribunals inferior to the Supreme Court;

To make rules concerning captures on land and water;

To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offenses against the law of nations;

To subdue a rebellion in any State, on the application of its legislature;

To make war;

To raise armies;

To build and equip fleets;

Edition: current; Page: [131]

To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions;

And to make all laws that 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.

Sect. 2. Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted.

Sect. 3. The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except Indians not paying taxes); which number shall, within six years after the first meeting of the Legislature, and within the term of every ten years afterwards, be taken in such manner as the said Legislature shall direct.

Sect. 4. No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.

Sect. 5. No capitation tax shall be laid, unless in proportion to the census hereinbefore directed to be taken.

Sect. 6. No navigation act shall be passed without the assent of two thirds of the members present in each House.

Sect. 7. The United States shall not grant any title of nobility.

VIII

The acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United Edition: current; Page: [132] States shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; any thing in the Constitution or laws of the several States to the contrary notwithstanding.

IX

Sect. 1. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.

Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the Legislature, or the Executive authority, or lawful agent of any State, in controversy with another, shall by memorial to the Senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the Senate, to the Legislature or the Executive authority of the other State in Controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before the House. The Agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a Court for hearing and determining the matter in question. But if the Agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or Judges to hear and finally determine the controversy; provided a majority of the Judges, who shall hear the cause, agree in the determination. If either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such Court; or shall not appear to prosecute or defend their claim or cause, the Court shall Edition: current; Page: [133] nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records, for the security of the parties concerned. Every Commissioner shall, before he sit in judgment, take an oath, to be administred by one of the Judges of the Supreme or Superior Court of the State where the cause shall be tried, “well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward.”

Sect. 3. All controversies concerning lands claimed under different grants of two or more States, whose jurisdictions, as they respect such lands shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States.

X

Sect. 1. The Executive Power of the United States shall be vested in a single person. His stile shall be, “The President of the United States of America;” and his title shall be, “His Excellency.” He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.

Sect. 2. He shall, from time to time, give information to the Legislature, of the state of the Union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper: he shall take care that the laws of the United States be duly and faithfully executed: he shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive Ambassadors, and may correspond with the supreme Executives of the several States. He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. He shall be commander in chief of the Army and Navy of the United States, and of the Militia Edition: current; Page: [134] of the several States. He shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during his continuance in office. Before he shall enter on the duties of his department, he shall take the following oath or affirmation; “I———solemnly swear, (or affirm) that that I will faithfully execute the office of President of the United States of America.” He shall be removed from his office on impeachment by the House of Representatives, and conviction in the supreme Court, of treason, bribery or corruption. In case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties, until another President of the United States be chosen, or until the disability of the President be removed.

XI

Sect. 1. The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States.

Sect. 2. The Judges of the Supreme Court, and of the Inferior Courts, shall hold their offices during good behaviour. They shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of officers of the United States; to all cases of Admiralty and maritime jurisdiction; to controversies between two or more States, (except such as shall regard Territory or Jurisdiction) between a State and Citizens of another State, between Citizens of different States, and between a State or the Citizens thereof and foreign States, citizens or subjects. In cases of impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be party, this jurisdiction shall be original. In all the other cases beforementioned, it shall be appellate, with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the Edition: current; Page: [135] jurisdiction abovementioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time.

Sect. 4. The trial of all criminal offences (except in cases of impeachments) shall be in the State where they shall be committed; and shall be by Jury.

Sect. 5. Judgment, in cases of Impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit, under the United States. But the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law.

XII

No State shall coin money; nor grant letters of marque and reprisal; nor enter into any Treaty, alliance, or confederation; nor grant any title of Nobility.

XIII

No State, without the consent of the Legislature of the United States, shall emit bills of credit, or make any thing but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent, as not to admit of delay, until the Legislature of the United States can be consulted.

XIV

The Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

Edition: current; Page: [136]

XV

Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.

XVI

Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and magistrates of every other State.

XVII

New States lawfully constituted or established within the limits of the United States may be admitted, by the Legislature, into this Government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the Legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt which shall be then subsisting.

XVIII

The United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign invasions, and, on the application of its Legislature, against domestic violence.

Edition: current; Page: [137]

XIX

On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a Convention for that purpose.

XX

The members of the Legislatures, and the Executive and Judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution.

XXI

The ratifications of the Conventions of States shall be sufficient for organizing this Constitution.

XXII

This Constitution shall be laid before the United States in Congress assembled, for their approbation; and it is the opinion of this Convention, that it should be afterwards submitted to a Convention chosen, under the recommendation of its legislature, in order to receive the ratification of such Convention.

XXIII

To introduce this government, it is the opinion of this Convention, that each assenting Convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the Conventions of States, should appoint and publish a day, as early as may be, and appoint a place for commencing Edition: current; Page: [138] proceedings under this Constitution; that after such publication, the Legislatures of the several States should elect members of the Senate, and direct the election of members of the House of Representatives; and that the members of the Legislature should meet at the time and place assigned by Congress, and should, as soon as may be, after their meeting, choose the President of the United States, and proceed to execute this Constitution.

Tuesday August 7th. In Convention

The Report of the Committee of detail being taken up,

Mr Pinkney moved that it be referred to a Committee of the whole. This was strongly opposed by Mr Ghorum & several others, as likely to produce unnecessary delay; and was negatived, Delaware Maryd & Virga only being in the affirmative.

The preamble of the Report was agreed to nem. con. So were Art: I & II.

Art: III. considered. Col. Mason doubted the propriety of giving each branch a negative on the other “in all cases.” There were some cases in which it was he supposed not intended to be given as in the case of balloting for appointments.

Mr Govr Morris moved to insert “legislative acts” instead of “all cases”

Mr Williamson 2ds him.

Mr Sherman. This will restrain the operation of the clause too much. It will particularly exclude a mutual negative in the case of ballots, which he hoped would take place.

Mr Ghorum contended that elections ought to be made by joint ballot. If separate ballots should be made for the President, and the two branches should be each attached to a favorite, great delay contention & confusion may ensue. These inconveniences have been felt in Masts in the election of officers of little importance compared with the Executive of the U. States. The only objection agst a joint ballot is that it may deprive the Senate of their due weight; but this ought not to prevail over the respect due to the public tranquility & welfare.

Edition: current; Page: [139]

Mr Wilson was for a joint ballot in several cases at least; particularly in the choice of the President, and was therefore for the amendment. Disputes between the two Houses during & concerng the vacancy of the Executive might have dangerous consequences.

. . .

Mr Madison wished to know the reasons of the Come for fixing by ye Constitution the time of Meeting for the Legislature; and suggested, that it be required only that one meeting at least should be held every year leaving the time to be fixed or varied by law.

. . .

Mr Wilson thought on the whole it would be best to fix the day.

. . .

Mr Govr Morris moved to strike out Decr & insert May. It might frequently happen that our measures ought to be influenced by those in Europe, which were generally planned during the Winter and of which intelligence would arrive in the Spring.

Mr Madison 2ded the motion, he preferred May to Decr because the latter would require the travelling to & from the seat of Govt in the most inconvenient seasons of the year.

Mr Wilson. The Winter is the most convenient season for business.

“Art IV. Sect. 1. taken up.”

Mr Govr Morris moved to strike out the last member of the section beginning with the words “qualifications of Electors,” in order that some other provision might be substituted which wd restrain the right of suffrage to freeholders.

Mr Fitzimmons 2ded the motion.

. . .

Mr Wilson. This part of the Report was well considered by the Committee, and he did not think it could be changed for the better. It was difficult to form any uniform rule of qualifications for all the States. Unnecessary innovations he thought too should be avoided. It would be very hard & disagreeable for the same persons at the same time, to vote for representatives in the State Legislature and to be excluded from a vote for those in the Natl Legislature.

. . .

Edition: current; Page: [140]

Wednesday Augst 8. In convention

. . .

Art IV. Sect. 2 taken up.

Col. Mason was for opening a wide door for emigrants; but did not chuse to let foreigners and adventurers make laws for us & govern us. Citizenship for three years was not enough for ensuring that local knowledge which ought to be possessed by the Representative. This was the principal ground of his objection to so short a term. It might also happen that a rich foreign Nation, for example Great Britain, might send over her tools who might bribe their way into the Legislature for insidious purposes. He moved that “seven” years instead of “three,” be inserted.

Mr Govr Morris 2ded the Motion, & on the question, all the States agreed to it except Connecticut.

Mr Sherman moved to strike out the word “resident” and insert “inhabitant,” as less liable to miscontruction.

. . .

Mr Wilson preferred “inhabitant.”

. . .

Mr Rutlidge urged & moved that a residence of 7 years shd be required in the State Wherein the Member shd be elected. An emigrant from N. England to S. C. or Georgia would know little of its affairs and could not be supposed to acquire a thorough knowledge in less time.

Mr Read reminded him that we were now forming a Natil Govt and such a regulation would correspond little with the idea that we were one people.

Mr Wilson enforced the same consideration.

. . .

Mr Dickenson proposed that it should read “inhabitant actually resident for year.” This would render the meaning less indeterminate.

Mr Wilson. If a short term should be inserted in the blank, so strict an expression might be construed to exclude the members of the Legislature, who could not be said to be actual residents in their States whilst at the Seat of the Genl Government.

. . .

Edition: current; Page: [141]

Mr Pinkney, considered the fisheries & the Western frontier as more burdensome to the U. S. than the slaves. He thought this could be demonstrated if the occasion were a proper one.

Mr Wilson. thought the motion premature. An agreement to the clause would be no bar to the object of it.

. . .

Mr Mercer1 considered the exclusive power of originating Money bills as so great an advantage, that it rendered the equality of votes in the Senate ideal & of no consequence.

Mr Butler was for adhering to the principle which had been settled.

Mr Wilson was opposed to it on its merits without regard to the compromise

. . .

Thursday Augst 9. In Convention

Art: IV. Sect. 6. Mr Randolph expressed his dissatisfaction at the disagreement yesterday to Sect. 5. concerning money bills, as endangering the success of the plan, and extremely objectionable in itself; and gave notice that he should move for a reconsideration of the vote.

. . .

Mr Wilson, gave notice that he shd move to reconsider the vote, requiring seven instead of three years of Citizenship as a qualification of candidates for the House of Representatives.

Art. IV. Sect. 6 & 7. Agreed to nem. con.

Art. V. Sect 1. taken up.

Mr Wilson objected to vacancies in the Senate being supplied by the Executives of the States. It was unnecessary as the Legislatures will meet so frequently. It removes the appointment too far from the people; the Executives in most of the States being elected by the Legislatures. As he Edition: current; Page: [142] had always thought the appointment of the Executives by the Legislative department wrong: so it was still more so that the Executive should elect into the Legislative department.

. . .

Mr Read did not consider the section as to money bills of any advantage to the larger States and had voted for striking it out as being viewed in the same light by the larger States. If it was considered by them as of any value, and as a condition of the equality of votes in the Senate, he had no objection to its being re-instated.

Mr Wilson—Mr Elseworth & Mr Madison urged that it was of no advantage to the larger States, and that it might be a dangerous source of contention between the two Houses. All the principal powers of the Natl Legislature had some relation to money.

. . .

Mr Wilson. It seems to have been supposed by some that the section concerning money bills is desirable to the large States. The fact was that two of those States [Pa & Va] had uniformly voted agst it without reference to any other part of the system.

. . .

Art: V. Sect. 3. taken up.

Mr Govr Morris moved to insert 14 instead of 4 years citizenship as a qualification for Senators: urging the danger of admitting strangers into our public Councils. Mr Pinkney 2ds him.

. . .

Mr Wilson said he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very Constitution, which he had shared in the trust of making. He remarked the illiberal complexion which the motion would give to the System, & the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement & mortification they must feel from the degrading discrimination, now proposed. He had himself experienced this mortification. On his removal into Maryland, he found himself from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he assuredly Edition: current; Page: [143] did not desire & would not have accepted the offices to which they related. To be appointed to a place may be matter of indifference. To be incapable of being appointed, is a circumstance grating and mortifying.

. . .

Friday Augst 10. In Convention

Art VI. Sect. 2. taken up.

. . .

Mr Wilson thought it would be best on the whole to let the Section go out. A uniform rule would probably be never fixed by the Legislature, and this particular power would constructively exclude every other power of regulating qualifications.

. . .

Art: VI. Sect. 3. taken up.

. . .

Mr Elseworth was opposed to it. It would be a pleasing ground of confidence to the people that no law or burden could be imposed on them, by a few men. He reminded the movers that the Constitution proposed to give such a discretion with regard to the number of Representatives that a very incovenient number was not to be apprehended. The inconveniency of secessions may be guarded agst by giving to each House an authority to require the attendance of absent members.

. . .

Art: VI. Sect. 7 taken up.

. . .

Mr Govr Morris & Mr Wilson observed that if the minority were to have a right to enter their votes & reasons, the other side would have a right to complain, if it were not extended to them & to allow it to both, would fill the Journals, like the records of a Court, with replications, rejoinders &c.

. . .

Edition: current; Page: [144]

Saturday Augst 11. In Convention

Mr Madison & Mr Rutlidge moved “that each House shall keep a journal of its proceeding, & shall publish the same from time to time except such part of the proceedings of the Senate, when acting not in its Legislative capacity as may be judged by that House to require secrecy.”

. . .

Mr Wilson thought the expunging of the clause would be very improper. The people have a right to know what their Agents are doing or have done, and it should not be in the option of the Legislature to conceal their proceedings. Besides as this is a clause in the existing confederation, the not retaining it would furnish the adversaries of the reform with a pretext by which week & suspicious minds may be easily misled.

. . .

Monday Augst 13. In Convention

Art IV. Sect. 2. reconsidered—

Mr Wilson & Mr Randolph moved to strike out “7 years” and insert “4 years,” as the requisite term of Citizenship to qualify for the House of Reps. Mr Wilson said it was very proper the electors should govern themselves by this consideration; but unnecessary & improper that the Constitution should chain them down to it.

. . .

Mr Wilson, cited Pennsylva as a proof of the advantage of encouraging emigrations. It was perhaps the youngest [except Georgia] settlemton the Atlantic; yet it was at least among the foremost in population & prosperity. He remarked that almost all the Genl officers of the Pena line of the late army were foreigners. And no complaint had ever been made against their fidelity or merit. Three of her deputies to the Convention [Mr R. Morris; Mr Fitzimmons & himself] were also not natives. He had no objection to Col. Hamiltons motion & would withdraw the one made by himself.

. . .

Edition: current; Page: [145]

Mr Wilson’s renewed the motion for 4 years instead of 7. & on question.

. . .

Mr Govr Morris moved to add to the end of the section [art IV. S. 2] a proviso that the limitation of seven years should not affect the rights of any person now a Citizen.

Mr Mercer 2ded the motion. It was necessary he said to prevent a disfranchisement of persons who had become Citizens under and on the faith & according to the laws & Constitution from being on a level in all respects with natives.

. . .

Mr Wilson read the clause in the Constitution of Pena giving to foreigners after two years residence all the rights whatsoever of citizens, combined it with the article of Confederation making the Citizens of one State Citizens of all, inferred the obligation Pena was under to maintain the faith thus pledged to her citizens of foreign birth, and the just complaints which her failure would authorize: He observed likewise that the Princes & States of Europe would avail themselves of such breach of faith to deter their subjects from emigrating to the U. S.

. . .

Mr Wilson moved that [in Art: V. Sect. 3.] 9 years be reduced to seven, which was disagd to and the 3d section [Art. V.] confirmed by the following vote.

N. H. ay. Mas. ay. Ct no. N. J. ay. Pa no. Del. ay. Md no. Va ay. N. C. ay. S. C. ay. Geo. ay.

Art. IV. Sec 5. being reconsidered.

Mr Randolph moved that the clause be altered so as to read—“Bills for raising money for the purpose of revenue or for appropriating the same shall originate in the House of Representatives and shall not be so amended or altered by the Senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the objects of its appropriation.”—He would not repeat his reasons, but barely remind the members from the smaller States of the compromise by which the larger States were entitled to this privilege.

. . .

Edition: current; Page: [146]

Mr Wilson was himself directly opposed to the equality of votes granted to the Senate by its present Constitution. At the same time he wished not to multiply the vices of the system. He did not mean to enlarge on a subject which had been so much canvassed, but would remark as an insuperable objection agst the proposed restriction of money bills to the H. of Reps that it would be a source of perpetual contentions where there was no mediator to decide them. The Presidt here could not like the Executive Magistrate in England interpose by a prorogation, or dissolution. This restriction had been found pregnant with altercation in every State where the Constitution had established it. The House of Reps will insert other things in money bills, and by making them conditions of each other, destroy the deliberative liberty of the Senate. He stated the case of a Preamble to a money bill sent up by the House of Commons in the reign of Queen Anne,2 to the H. of Lords, in which the conduct of the displaced Ministry, who were to be impeached before the Lords, was condemned; the Commons thus extorting a premature judgmt without any hearing of the Parties to be tried, and the H. of Lords being thus reduced to the poor & disgraceful expedient of opposing to the authority of a law, a protest on their Journals agst its being drawn into precedent. If there was any thing like Poynings law3 in the present case, it was in the attempt to vest the exclusive right of originating in the H. of Reps and so far he was agst it. He should be equally so if the right were to be exclusively vested in the Senate. With regard to the purse strings, it was to be observed that the purse was to have two strings, one of which was in the hands of the H. of Repsthe other in those of the Senate. Both houses must concur in untying, and of what importance could it be which untied first, which last. He could not conceive it to be any objection to the Senate’s preparing the bills, that they would have leisure for that purpose and would be in the habits of business. War, Commerce, & Revenue were the great objects of the Genl Government. All of them are connected with money. The restriction in favor of the H. of Represts would exclude the Senate from originating any important bills whatever—

. . .

Edition: current; Page: [147]

Tuesday Aug. 14. In Convention

Article VI. Sect. 9. taken up.

Mr Pinkney argued that the making the members ineligible to offices was degrading to them, and the more improper as their election into the Legislature implied that they had the confidence of the people; that it was inconvenient, because the Senate might be supposed to contain the fittest men. He hoped to see that body become a School of public Ministers, a nursery of Statesmen: that it was impolitic, because the Legislature would cease to be a magnet to the first talents and abilities. He moved to postpone the section in order to take up the following proposition viz—“the members of each House shall be incapable of holding any office under the U. S. for which they or any of others for their benefit receive any salary, fees, or emoluments of any kind—and the acceptance of such office shall vacate their seats respectively.”

Genl Mifflin4 2ded the motion.

. . .

Mr Wilson could not approve of the Section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. He considered himself as acting & responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrified his own Judgment in a case where they authorised him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of Penna had not good sense enough to receive a good Government? Under this impression he should certainly follow his own Judgment which disapproved of the section. He would remark in addition to the objections urged agst it, that as one branch of the Legislature was to be appointed by the Legislatures of the States, the other by the people of the States, as both are to be paid by the States, and to be appointable to State offices, nothing seemed to be wanting to prostrate the Natl Legislature, but to render its members ineligible to Natloffices, & by that means take away its power of attracting those talents Edition: current; Page: [148] which were necessary to give weight to the Governt and to render it useful to the people. He was far from thinking the ambition which aspired to Offices of dignity and trust, an ignoble or culpable one. He was sure it was not politic to regard it in that light, or to withold from it the prospect of those rewards, which might engage it in the career of public service. He observed that the State of Penna which had gone as far as any State into the policy of fettering power, had not rendered the members of the Legislature ineligible to offices of Govt.

. . .

Mr Wilson was by no means satisfied with the answer given by Mr Elseworth to the argument as to the discouragement of merit. The members must either go a second time into the Legislature, and disqualify themselves—or say to their Constituents, we served you before only from the mercenary view of qualifying ourselves for offices, and haveg answered this purpose we do not chuse to be again elected.

. . .

Wednesday August 15. In Convention

. . .

Mr Madison moved that all acts before they become laws should be submitted both to the Executive and Supreme Judiciary Departments, that if either of these should object ⅔ of each House, if both should object, ¾ of each House, should be necessary to overrule the objections and give to the acts the force of law—

See the motion at large in the Journal of this date, page 253, & insert it here.

[“Every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it, but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two Edition: current; Page: [149] thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law.”]

Mr Wilson seconds the motion.

. . .

Mr Carrol5 when the negative to be overruled by ⅔ only was agreed to, the quorum was not fixed. He remarked that as a majority was now to be the quorum, 17. in the larger, and 8 in the smaller house might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws. He thought the controuling power however of the Executive could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed.

. . .

Mr Wilson; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the Govt from the legislature swallowing up all the other powers. He remarked that the prejudices agst the Executive resulted from a misapplication of the adage that the parliament was the palladium of liberty. Where the Executive was really formidable, King and Tyrant, were naturally associated in the minds of people; not legislature and tyranny. But where the Executive was not formidable, the two last were most properly associated. After the destruction of the King in Great Britain, a more pure and unmixed tryanny sprang up in the parliament than had been exercised by the monarch. He insisted that we had not guarded agst the danger on this side by a sufficient self-defensive power either to the Executive or Judiciary department.

. . .

Mr Williamson moved to change “⅔ of each House” into “¾” as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the Presidt alone, to admitting the Judges into the business of legislation.

Edition: current; Page: [150]

Mr Wilson 2ds the motion; referring to and repeating the ideas of Mr Carroll.

On this motion for ¾. instead of two thirds; it passed in the affirmative.

. . .

Thursday August 16. In Convention

. . .

Art: VII. Sect. I. taken up.

Mr L. Martin asked what was meant by the Committee of detail in the expression “duties” and “imposts.” If the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear.

Mr Wilson, duties are applicable to many objects to which the word imposts does not relate. The latter are appropriated to commerce; the former extend to a variety of objects as stamp duties &c.

. . .

Mr Wilson was decidedly agst prohibiting general taxes on exports. He dwelt on the injustice and impolicy of leaving N. Jersey Connecticut &c any longer subject to the exactions of their commercial neighbours.

. . .

Mr Elseworth thought this a favorable moment to shut and bar the door against paper money. The mischiefs of the various experiments which had been made, were now fresh in the public mind and had excited the disgust of all the respectable part of America. By witholding the power from the new Governt more friends of influence would be gained to it than by almost any thing else. Paper money can in no case be necessary. Give the Government credit, and other resources will offer. The power may do harm never good.

Mr Randolph, notwithstanding his antipathy to paper money, could not agree to strike out the words, as he could not foresee all the occasions which might arise.

Mr Wilson. It will have a most salutary influence on the credit of the U. States to remove the possibility of paper money. This expedient can never succeed whilst its mischiefs are remembered, and as long as it can be resorted to, it will be a bar to other resources.

. . .

Edition: current; Page: [151]

Friday August 17th. In Convention

Art VII. Sect. 1. resumed on the clause “to appoint Treasurer by ballot.”

. . .

Mr Madison moved to strike out “and punishment” &c.

. . .

Mr Wilson was in favor of the motion. Strictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them.

. . .

Mr Wilson, thought “felonies” sufficiently defined by common law.

. . .

Art VII. Sect. 2. concerning Treason which see.

. . .

Mr Randolph thought the clause defective in adopting the words “in adhering” only. The British Stat: adds, “giving them aid and comfort” which had a more extensive meaning.

Mr Elseworth considered the definition as the same in fact with that of the Statute.

Mr Govr Morris “adhering” does not go so far as “giving aid and Comfort” or the latter words may be restrictive of adhering,” in either case the Statute is not pursued.

Mr Wilson held “giving aid and comfort” to be explanatory, not operative words; and that it was better to omit them.

. . .

Mr Wilson & Docr Johnson moved, that “or any of them” after “United States” be struck out in order to remove the embarrassment: which was agreed to nem. con.

. . .

It was then moved to insert after “two witnesses” the words “to the same overt act.”

Docr Franklin wished this amendment to take place—prosecutions for treason were generally virulent; and perjury too easily made use of against innocence.

Mr Wilson. much may be said on both sides. Treason may sometimes be practised in such a manner, as to render proof extremely difficult—as in a traitorous correspondence with an Enemy.

. . .

Edition: current; Page: [152]

Mr Wilson in cases of a general nature, treason can only be agst the U—States. and in such they shd have the sole right to declare the punishment—yet in many cases it may be otherwise. The subject was however intricate and he distrusted his present judgment on it.

. . .

N. H. ay. Mas. ay. Ct no. N. J. no. Pa ay. Del. ay. Md no. Va no. N. C. no. S. C. ay. Geo. no.—

Mr Wilson. the clause is ambiguous now. “Sole” ought either to have been inserted—or “against the U. S.” to be re-instated.

. . .

Tuesday August 21. In Convention

. . .

Art. VII. Sect. 4.—Mr Langdon. by this section the States are left at liberty to tax exports. N. H. therefore with other non-exporting States, will be subject to be taxed by the States exporting its produce. This could not be admitted. It seems to be feared that the Northern States will oppress the trade of the Southn. This may be guarded agst by requiring the concurrence of ⅔ or ¾ of the legislature in such cases.

. . .

Mr Wilson. Pennsylvania exports the produce of Maryd, N. Jersey, Delaware & will by & by when the River Delaware is opened, export for N- York. In favoring the general power over exports therefore, he opposed the particular interest of his State. He remarked that the power had been attacked by reasoning which could only have held good in case the Genl Govt had been compelled, instead of authorized, to lay duties on exports. To deny this power is to take from the Common Govt half the regulation of trade. It was his opinion that a power over exports might be more effectual than that over imports in obtaining beneficial treaties of commerce.

. . .

Mr Madison. In order to require ⅔ of each House to tax exports—as a lesser evil than a total prohibition moved to insert the words “unless by consent of two thirds of the Legislature.”

Mr Wilson 2ds and on this question, it passed in the Negative.

. . .

Edition: current; Page: [153]

Wednesday August 22. In Convention

Art VII sect 4. resumed. Mr Sherman was for leaving the clause as it stands. He disapproved of the slave trade; yet as the States were now possessed of the right to import slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it. He observed that the abolition of Slavery seemed to be going on in the U. S. & that the good sense of the several States would probably by degrees compleat it. He urged on the Convention the necessity of despatching its business.

. . .

Mr Wilson observed that if S. C. & Georgia were themselves disposed to get rid of the importation of slaves in a short time as had been suggested, they would never refuse to Unite because the importation might be prohibited. As the Section now stands all articles imported are to be taxed. Slaves alone are exempt. This is in fact a bounty on that article.

. . .

Mr Pinkney & Mr Langdon moved to commit Sect. 6. as to navigation act by two thirds of each House.

. . .

Mr Wilson wished for a commitment in order to reduce the proportion of votes required.

. . .

Mr Gerry & Mr McHenry6 moved to insert after the 2d sect.

Art: 7, the Clause following, to wit, “The Legislature shall pass no bill of attainder nor any ex post facto law.”

. . .

Mr Wilson was against inserting any thing in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution and proclaim that we are ignorant of the first principles of legislation, or are constituting a Government which will be so. The question being divided, Edition: current; Page: [154] The first part of the motion relating to bills of attainder was agreed to nem. contradicente.

. . .

Mr Wilson. If these prohibitions in the State Constitutions have no effect it will be useless to insert them in this Constitution. Besides both sides will agree to the principle, & will differ as to its application.

. . .

Art. IX being next for consideration,

Mr Govr Morris argued agst the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility. If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.

Mr Wilson was of the same opinion & for like reasons.

. . .

Mr C- Pinkney moved to add as an additional power to be vested in the Legislature of the U. S. “To negative all laws passed by the several States interfering in the opinion of the Legislature with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same.”

This principle he observed had formerly been agreed to. He considered the precaution as essentially necessary: The objection drawn from the predominance of the large States had been removed by the equality established in the Senate. Mr Broome 2ded the proposition.

. . .

Mr Wilson considered this as the key-stone wanted to compleat the wide arch of Government, we are raising. The power of self-defence had been urged as necessary for the State Governments. It was equally necessary for the General Government. The firmness of Judges is not of itself sufficient. Something further is requisite. It will be better to prevent the passage of an improper law, than to declare it void when passed.

. . .

Art IX. Sect. 1. being resumed, to wit “The Senate of the U. S. shall have power to make treaties, and to appoint Ambassadors and Judges of the Supreme Court.”

. . .

Edition: current; Page: [155]

Mr Wilson. In the most important Treaties, the King of G. Britain being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of Mr Morris will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause, without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.

. . .

Friday August 24. 1787 . In Convention

. . .

Sect: 2 & 3 of art: IX being taken up,

Mr Rutlidge said this provision for deciding controversies between the States was necessary under the Confederation, but will be rendered unnecessary by the National Judiciary now to be established, and moved to strike it out.

Docr Johnson 2ded the Motion.

. . .

Mr Wilson urged the striking out, the Judiciary being a better provision.

. . .

Mr Carrol moved to strike out “by the Legislature” and insert “by the people.” Mr Wilson 2ded him & on the question.

. . .

Mr Wilson urged the reasonableness of giving the larger States a larger share of the appointment, and the danger of delay from a disagreement of the two Houses. He remarked also that the Senate had peculiar powers balancing the advantage given by a joint balot in this case to the other branch of the Legislature.

. . .

Mr Wilson remarked that as the President of the Senate was to be President of the U. S. that Body in cases of vacancy might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required.

. . .

Mr Dickinson moved to strike out the words “and shall appoint to offices in all cases not otherwise provided for by this Constitution” and Edition: current; Page: [156] insert—“and shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law.”

. . .

Mr Dickinson then moved to annex to his last amendment “except where by law the appointment shall be vested in the Legislatures or Executives of the several States.” Mr Randolph 2ded the motion.

Mr Wilson—If this be agreed to it will soon be a standing instruction from the State Legislatures to pass no law creating offices, unless the apptsbe referred to them.

. . .

Monday Augst 27th 1787. In Convention

Art X. Sect. 2. being resumed.

Mr L. Martin moved to insert the words “after conviction” after the words “reprieves and pardons”

Mr Wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen.—Mr L. Martin withdrew his motion.

. . .

Col: Mason & Mr Madison, moved to add to the oath to be taken by the supreme Executive “and will to the best of my judgment and power preserve protect and defend the Constitution of the U. S.”

Mr Wilson thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary—

. . .

Mr Dickinson moved as an amendment to sect. 2. art XI after the words “good behavior” the words “provided that they may be removed by the Executive on the application by the Senate and House of Representatives.”

Mr Gerry 2ded the motion.

. . .

Mr Wilson considered such a provision in the British Government as less dangerous than here, the House of Lords & House of Commons Edition: current; Page: [157] being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had successively offended by his independent conduct, both houses of Parliament. Had this happened at the same time, he would have been ousted. The judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Govt.

. . .

Mr Govr Morris wished to know what was meant by the words “In all the cases before mentioned it [jurisdiction] shall be appellate with such exceptions &c,” whether it extended to matters of fact as well as law—and to cases of Common law as well as Civil law.

Mr Wilson. The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed.

. . .

Tuesday August 28. 1787. In Convention

Mr Govr Morris moved that “The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of Rebellion or invasion the public safety may require it.”

Mr Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail.

. . .

Art. XII. being taken up.

Mr Wilson & Mr Sherman moved to insert after the words “coin money” the words “nor emit bills of credit, nor make anything but gold & silver coin a tender in payment of debts” making these prohibitions absolute, instead of making the measures allowable (as in the XIII art:) with the consent of the Legislature of the U. S.

. . .

Mr King moved to add, in the words used in the Ordinance of Congsestablishing new States, a prohibition on the States to interfere in private contracts.

. . .

Edition: current; Page: [158]

Mr Wilson was in favor of Mr King’s motion.

. . .

Col: Mason. This is carrying the restraint too far. Cases will happen that can not be foreseen, where some kind of interference will be proper & essential. He mentioned the case of limiting the period for bringing actions on open account—that of bonds after a certain lapse of time—asking whether it was proper to tie the hands of the States from making provision in such cases?

Mr Wilson. The answer to these objections is that retrospective interferences only are to be prohibited.

. . .

Art: XV being taken up, the words “high misdemesnor,” were struck out, and “other crime” inserted, in order to comprehend all proper cases: it being doubtful whether “high misdemeanor” had not a technical meaning too limited.

Mr Butler and Mr Pinkney moved “to require fugitive slaves and servants to be delivered up like criminals.”

Mr Wilson. This would oblige the Executive of the State to do it at the public expence.

. . .

Wednesday August 29th 1787. In Convention

Art: XVI. taken up.

Mr Williamson moved to substitute in place of it, the words of the Articles of Confederation on the same subject. He did not understand precisely the meaning of the article.

Mr Wilson & Docr Johnson supposed the meaning to be that Judgments in one State should be the ground of actions in other States, & that acts of the Legislatures should be included, for the sake of Acts of insolvency &c.

. . .

Art VII Sect. 6 by ye Committee of eleven reported to be struck out (see the 24 instant) being now taken up.

. . .

Edition: current; Page: [159]

Mr Wilson took notice of the several objections and remarked that if every peculiar interest was to be secured, unanimity ought to be required. The majority he said would be no more governed by interest than the minority. It was surely better to let the latter be bound hand and foot than the former. Great inconveniences had, he contended, been experienced in Congress from the article of confederation requiring nine votes in certain cases.

. . .

Art. XVII—before the House, as amended.

. . .

Mr Wilson. When the majority of a State wish to divide they can do so. The aim of those in opposition to the article, he perceived, was that the Genl Government should abet the minority, & by that means divide a State against its own consent.

. . .

Thursday August 30th 1787. In Convention

Art XVII resumed for a question on it as amended by Mr Govr Morris’s substitutes.

Mr Carrol moved to strike out so much of the article as requires the consent of the State to its being divided.

. . .

Mr Wilson was against the committment. Unanimity was of great importance, but not to be purchased by the majority’s yielding to the minority. He should have no objection to leaving the case of new States as heretofore. He knew of nothing that would give greater or juster alarm than the doctrine, that a political society is to be torne asunder without its own consent.

. . .

Mr Dickinson moved to add the following clause to the last—

“Nor shall any State be formed by the junction of two or more States or parts thereof, without the consent of the Legislature of such States, as well as of the Legislature of the U. States,” which was agreed to without a count of the votes.

. . .

Edition: current; Page: [160]

Mr Wilson was agst the motion. There was nothing in the Constitution affecting one way or the other the claims of the U. S. & it was best to insert nothing leaving every thing on that litigated subject in statu quo.

. . .

Art: XXI. taken up. viz: The ratifications of the Conventions of States shall be sufficient for organizing this Constitution.”

Mr Wilson proposed to fill the blank with “seven” that being a majority of the whole number & sufficient for the commencement of the plan.

. . .

Mr Wilson mentioned “eight” as preferable.

. . .

Mr Madison, remarked that if the blank should be filled with “seven” eight, or “nine”—the Constitution as it stands might be put in force over the whole body of the people, tho’ less than a majority of them should ratify it.

Mr Wilson. As the Constitution stands, the States only which ratify can be bound. We must he said in this case go to the original powers of Society. The House on fire must be extinguished, without a scrupulous regard to ordinary rights.

. . .

Friday August 31st 1787. In Convention

. . .

Mr Madison proposed to fill the blank in the article with “any seven or more States entitled to thirty three members at least in the House of Representatives according to the allotment made in the 3 Sect: of art: 4.” This he said would require the concurrence of a majority both of the States and people.

. . .

Mr Wilson supported the motion of Mr Madison, requiring a majority both of the people and of States.

. . .

Edition: current; Page: [161]

Monday Sepr 3. 1787. In Convention

Mr Govr Morris moved to amend the Report concerning the respect to be paid to Acts Records &c of one State, in other States (see Sepr 1.) by striking out “judgments obtained in one State shall have in another” and to insert the word “thereof” after the word “effect”

Col: Mason favored the motion, particularly if the “effect” was to be restrained to judgments & Judicial proceedings.

Mr Wilson remarked, that if the Legislature were not allowed to declare the effect the provision would amount to nothing more than what now takes place among all Independent Nations.

. . .

Mr Pinkney moved to postpone the Report of the Committee of Eleven (see Sepr 1) in order to take up the following,

“The members of each House shall be incapable of holding any office under the U. S. for which they or any other for their benefit, receive any salary, fees or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively.”

. . .

Mr Wilson considered the exclusion of members of the Legislature, as increasing the influence of the Executive as observed by Mr Govr Morris at the same time that it would diminish, the general energy of the Government. He said that the legal disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction.

. . .

Tuesday Sepr 4. 1787. In Convention

Mr Brearly from the Committee of eleven made a further partial Report as follows

“The Committee of Eleven to whom sundry resolutions &c were referred on the 31st of August, report that in their opinion the following additions and alterations should be made to the Report before the Convention, viz

. . .

Edition: current; Page: [162]

Mr Wilson. This subject [election of the president] has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide. He had never made up an opinion on it entirely to his own satisfaction. He thought the plan on the whole a valuable improvement on the former. It gets rid of one great evil, that of cabal & corrup-tion; & Continental Characters will multiply as we more & more coalesce, so as to enable the electors in every part of the Union to know & judge of them. It clears the way also for a discussion of the question of re-eligibility on its own merits, which the former mode of election seems to forbid. He thought it might be better however to refer the eventual appointment to the Legislature than to the Senate, and to confine it to a smaller number than five of the Candidates. The eventual election by the Legislature wd not open cabal anew, as it would be restrained to certain designated objects of choice, and as these must have had the previous sanction of a number of the States: and if the election be made as it ought as soon as the votes of the electors are opened & it is known that no one has a majority of the whole, there can be little danger of corruption. Another reason for preferring the Legislature to the Senate in this business, was that the House of Reps will be so often changed as to be free from the influence & faction to which the permanence of the Senate may subject that branch.

. . .

Mr Pinkney moved a clause declaring “that each House should be judge of the privilege of its own members.” Mr Govr Morris 2ded the motion.

. . .

Mr Wilson thought the power involved, and the express insertion of it needless. It might beget doubts as to the power of other public bodies, as Courts &c. Every Court is the judge of its own privileges.

. . .

Wednesday Sepr 5. 1787. In Convention

. . .

Col. Mason admitted that there were objections to an appointment by the Legislature as originally planned. He had not yet made up his mind, but would state his objections to the mode proposed by the Committee. 1. It Edition: current; Page: [163] puts the appointment in fact into the hands of the Senate, as it will rarely happen that a majority of the whole votes will fall on any one candidate: and as the Existing President will always be one of the 5 highest, his reappointment will of course depend on the Senate. 2. Considering the powers of the President & those of the Senate, if a coalition should be established between these two branches, they will be able to subvert the Constitution—The great objection with him would be removed by depriving the Senate of the eventual selection. He accordingly moved to strike out the words “if such number be a majority of that of the electors.”

. . .

Mr Wilson moved to strike out “Senate” and insert the word “Legislature”

. . .

Thursday Sepr 6. 1787. In Convention

. . .

Mr Gerry proposed, as the President was to be elected by the Senate out of the five highest candidates, that if he should not at the end of his term be re-elected by a majority of the Electors, and no other candidate should have a majority, the eventual election should be made by the Legislature. This he said would relieve the president from his particular dependence on the Senate for his continuance in office.

. . .

Mr Wilson said that he had weighed carefully the report of the Committee for remodelling the constitution of the Executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have in fact, the appointment of the President, and through his dependence on them, the virtual appointment to offices; among others the offices of the Judiciary Department. They are to make Treaties; and they are to try all impeachments. In allowing them thus to make the Executive & Judiciary appointments, to be the Court of impeachments, and to make Treaties which are to be laws of the land, the Legislative, Executive & Judiciary powers are all blended in one branch of the Government. The power of making Treaties involves the case of subsidies, and here as an additional evil, foreign influence is to Edition: current; Page: [164] be dreaded. According to the plan as it now stands, the President will not be the man of the people as he ought to be, but the Minion of the Senate. He cannot even appoint a tide-waiter without the Senate. He had always thought the Senate too numerous a body for making appointments to office. The Senate, will moreover in all probability be in constant Session. They will have high salaries. And with all those powers, and the President in their interest, they will depress the other branch of the Legislature, and aggrandize themselves in proportion. Add to all this, that the Senate sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ultimately before themselves. Upon the whole, he thought the new mode of appointing the President, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the Report, nor befriend a system of which they make a part.

. . .

The Section 4.—to wit, “The President by & with the advice and consent of the Senate shall have power to make Treaties &c.”

Mr Wilson moved to add, after the word “Senate” the words, “and House of Representatives.” As treaties he said are to have the operation of laws, they ought to have the sanction of laws also. The circumstance of secrecy in the business of treaties formed the only objection; but this he thought, so far as it was inconsistent with obtaining the Legislative sanction, was outweighed by the necessity of the latter.

. . .

“He shall nominate &c Appoint Ambassadors &c.”

Mr Wilson objected to the mode of appointing, as blending a branch of the Legislature with the Executive. Good laws are of no effect without a good Executive; and there can be no good Executive without a responsible appointment of officers to execute. Responsibility is in a manner destroyed by such an agency of the Senate. He would prefer the council proposed by Col. Mason, provided its advice should not be made obligatory on the President.

. . .

On motion of Mr Spaight—“that the President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting Edition: current; Page: [165] Commissions which shall expire at the end of the next Session of the Senate” It was agreed to nem: con:

Section 4. “The President by and with the advice and consent of the Senate shall have power to make Treaties”—“But no treaty shall be made without the consent of two thirds of the members present”—this last being before the House.

Mr Wilson thought it objectionable to require the concurrence of ⅔ which puts it in the power of a minority to controul the will of a majority.

. . .

Col: Mason said that in rejecting a Council to the President we were about to try an experiment on which the most despotic Governments had never ventured. The Grand Signor himself had his Divan. He moved to postpone the consideration of the clause in order to take up the following

“That it be an instruction to the Committee of the States to prepare a clause or clauses for establishing an Executive Council, as a Council of State, for the President of the U. States, to consist of six members, two of which from the Eastern, two from the middle, and two from the Southern States, with a Rotation and duration of office similar to those of the Senate; such Council to be appointed by the Legislature or by the Senate.”

. . .

Mr Wilson approved of a Council in preference to making the Senate a party to appointmts.

. . .

Saturday September 8th. In Convention

The last Report of Committee of Eleven (see Sepr 4) was resumed.

Mr King moved to strike out the “exception of Treaties of peace” from the general clause requiring two thirds of the Senate for making Treaties.

Mr Wilson wished the requisition of two thirds to be struck out altogether. If the majority cannot be trusted, it was a proof, as observed by Mr Ghorum, that we were not fit for one Society.

A reconsideration of the whole clause was agreed to.

. . .

Edition: current; Page: [166]

Mr Wilson If two thirds are necessary to make peace, the minority may perpetuate war, against the sense of the majority.

. . .

Mr Wilson & Mr Dayton move to strike out the clause requiring two thirds of the Senate for making Treaties—on which,

. . .

Mr McHenry observed that the President had not yet been any where authorised to convene the Senate, and moved to amend Art. X. sect. 2. by striking out the words “he may convene them [the Legislature] on extraordinary occasions” & insert “He may convene both or either of the Houses on extraordinary occasions.” This he added would also provide for the case of the Senate being in Session at the time of convening the Legislature.

Mr Wilson said he should vote agst the motion, because it implied that the senate might be in Session, when the Legislature was not, which he thought improper.

. . .

Monday Sepr 10. 1787. In Convention

Mr Sherman moved to add to the article “or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.”

Mr Gerry 2ded the motion.

Mr Wilson moved to insert “two thirds of” before the words “several States”—on which amendment to the motion of Mr Sherman.

. . .

Mr Wilson then moved to insert “three fourths of” before “the several Sts” which was agreed to nem: con:

. . .

Mr Gerry moved to reconsider art: XXI and XXII. from the latter of which “for the approbation of Congs” had been struck out. He objected to proceeding to change the Government without the approbation of Congress, as being improper and giving just umbrage to that body. He repeated his objections also to an annulment of the confederation with so little scruple or formality.

. . .

Edition: current; Page: [167]

Mr Wilson was against a reconsideration for any of the purposes which had been mentioned.

. . .

Mr Hamilton then moved to postpone art XXI in order to take up the following, containing the ideas he had above expressed, viz

Resolved that the foregoing plan of a Constitution be transmitted to the U. S. in Congress assembled, in order that if the same shall be agreed to by them, it may be communicated to the Legislatures of the several States, to the end that they may provide for its final ratification by referring the same to the Consideration of a Convention of Deputies in each State to be chosen by the people thereof, and that it be recommended to the said Legislatures in their respective acts for organizing such convention to declare, that if the said Convention shall approve of the said Constitution, such approbation shall be binding and conclusive upon the State, and further that if the said Convention should be of opinion that the same upon the assent of any nine States thereto, ought to take effect between the States so assenting, such opinion shall thereupon be also binding upon such State, and the said Constitution shall take effect between the States assenting thereto”

. . .

Mr Wilson. This motion being seconded, it is necessary now to speak freely. He expressed in strong terms his disapprobation of the expedient proposed, particularly the suspending the plan of the Convention on the approbation of Congress. He declared it to be worse than folly to rely on the concurrence of the Rhode Island members of Congs in the plan. Maryland has voted on this floor, for requiring the unanimous assent of the 13 States to the proposed change in the federal System. N. York has not been represented for a long time past in the Convention. Many individual deputies from other States have spoken much against the plan. Under these circumstances can it be safe to make the assent of Congress necessary. After spending four or five months in the laborious & arduous task of forming a Government for our Country, we are ourselves at the close throwing insuperable obstacles in the way of its success.

. . .

Edition: current; Page: [168]

Friday Sepr 14th 1787. In Convention

The Report of the Committee of Stile & arrangement being resumed.

. . .

To define & punish piracies and felonies on the high seas, and “punish” offences against the law of nations.

Mr Govr Morris moved to strike out “punish” before the words “offences agst the law of nations,” so as to let these be definable as well as punishable, by virtue of the preceding member of the sentence.

Mr Wilson hoped the alteration would by no means be made. To pretend to define the law of nations which depended on the authority of all the civilized nations of the world, would have a look of arrogance, that would make us ridiculous.

. . .

Docr Franklin moved to add after the words “post roads” Art I. Sect. 8. “a power to provide for cutting canals where deemed necessary”

Mr Wilson 2ded the motion.

Mr Sherman objected. The expence in such cases will fall on the U. States, and the benefit accrue to the places where the canals may be cut.

Mr Wilson. Instead of being an expence to the U. S. they may be made a source of revenue.

Mr Madison suggested an enlargement of the motion into a power “to grant charters of incorporation where the interest of the U. S. might require & the legislative provisions of individual States may be incompetent.” His primary object was however to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for. The political obstacles being removed, a removal of the natural ones as far as possible ought to follow. Mr Randolph 2ded the proposition.

Mr King thought the power unnecessary.

Mr Wilson. It is necessary to prevent a State from obstructing the general welfare.

Mr King. The States will be prejudiced and divided into parties by it. In Philada & New York, it will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies.

Mr Wilson mentioned the importance of facilitating by canals, the Edition: current; Page: [169] communication with the Western Settlements. As to Banks he did not think with Mr King that the power in that point of view would excite the prejudices & parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.

Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr Wilson.

. . .

Mr Wilson supported the motion.

. . .

Mr Wilson 2ded & supported the motion. Many operations of finance can not be properly published at certain times.

. . .

Saturday Sepr 15th 1787. In Convention

. . .

Art: II. Sect. 2. “he shall have power to grant reprieves and pardons for offences against the U. S. &c”

. . .

Mr Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

. . .

Monday Sepr 17. 1787. In Convention

The engrossed Constitution being read,

Docr Franklin rose with a speech in his hand, which he had reduced to writing for his own conveniency, and which Mr Wilson read in the words following.

. . .

Mr King suggested that the Journals of the Convention should be either destroyed, or deposited in the custody of the President. He thought Edition: current; Page: [170] if suffered to be made public, a bad use would be made of them by those who would wish to prevent the adoption of the Constitution.

Mr Wilson prefered the second expedient, he had at one time liked the first best; but as false suggestions may be propagated it should not be made impossible to contradict them.

A question was then put on depositing the Journals and other papers of the Convention in the hands of the President, on which, N. H. ay. Mt ts ay. Ct ay. N. J. ay. Pena ay. Del. ay. Md no. Va ay. N. C. ay. S. C. ay. Geo. ay.

The President having asked what the Convention meant should be done with the Journals &c, whether copies were to be allowed to the members if applied for. It was Resolved nem: con “that he retain the Journal and other papers, subject to the order of the Congress, if ever formed under the Constitution.”

The members then proceeded to sign the instrument.

Whilst the last members were signing it Doctr Franklin looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicisitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun.

The Constitution being signed by all the members except Mr Randolph, Mr Mason, and Mr Gerry who declined giving it the sanction of their names, the Convention dissolved itself by an Adjournment sine die—7

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James Wilson’s State House Yard Speech October 6, 1787.*

Wilson’s “State House Yard Speech” was one of the first major public defenses of the proposed constitution. By the end of 1787 it had been reprinted in thirty-four newspapers in twelve states and circulated throughout the colonies as a pamphlet. Bernard Bailyn notes that “in the ‘transient circumstances’ of the time it was not so much the Federalist papers that captured most people’s imaginations as James Wilson’s speech of October 6, 1787, the most famous, to some the most notorious, federalist statement of the time” (Ideological Origins , 328).

Mr. Wilson then rose, and delivered a long and eloquent speech upon the principles of the Foederal Constitution proposed by the late convention. The outlines of this speech we shall endeavour to lay before the public, as tending to reflect great light upon the interesting subject now in general discussion.

Mr. Chairman and Fellow Citizens, Having received the honor of an appointment to represent you in the late convention, it is perhaps, my duty to comply with the request of many gentlemen whose characters and judgments I sincerely respect, and who have urged, that this would be a proper occasion to lay before you any information which will serve to explain and elucidate the principles and arrangements of the constitution, that has been submitted to the consideration of the United States. I confess that I am unprepared for so extensive and so important a disquisition; but the insidious attempts which are clandestinely and industriously made to pervert and destroy the new plan, induce me the more readily to engage in its defence; and the impressions of four months constant attention to the subject, have not been so easily effaced as to leave me without an answer to the objections which have been raised.

It will be proper however, before I enter into the refutation of the charges that are alledged, to mark the leading descrimination between the state constitutions, and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every Edition: current; Page: [172] question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating foederal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed constitution: for it would have been superfluous and absurd to have stipulated with a foederal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition, what controul can proceed from the foederal government to shackle or destroy that sacred palladium of national freedom? If indeed, a power similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation. With respect likewise to the particular district of ten miles, which is to be made the seat of foederal government, it will undoubtedly be proper to observe this salutary precaution, as there the legislative power will be exclusively lodged in the president, senate, and house of representatives of the United States. But this could not be an object with the convention, for it must naturally depend upon a future compact, to which the citizens immediately interested will, and ought to be parties; and there is no reason to suspect that so popular a privilege will in that case be neglected. In truth then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.

Another objection that has been fabricated against the new constitution, is expressed in this disingenuous form—“the trial by jury is abolished in civil cases.” I must be excused, my fellow citizens, if upon this Edition: current; Page: [173] point, I take advantage of my professional experience to detect the futility of the assertion. Let it be remembered then, that the business of the Foederal Convention was not local, but general; not limited to the views and establishments of a single state, but co-extensive with the continent, and comprehending the views and establishments of thirteen independent sovereignties. When therefore, this subject was in discussion, we were involved in diffculties which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a trial by jury differed in the different states, it was therefore impracticable on that ground to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless; and it could not, with any propriety, be said that “the trial by jury shall be as heretofore,” since there has never existed any foederal system of jurisprudence to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions, for causes depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in courts of equity, do not require the intervention of that tribunal. How then, was the line of discrimination to be drawn? The convention found the task too diffcult for them, and they left the business as it stands, in the fullest confidence that no danger could possibly ensue, since the proceedings of the supreme court, are to be regulated by the congress, which is a faithful representation of the people; and the oppression of government is effectually barred, by declaring that in all criminal cases the trial by jury shall be preserved.

This constitution, it has been further urged, is of a pernicious tendency, because it tolerates a standing army in the time of peace.—This has always been a topic of popular declamation; and yet, I do not know a nation in the world, which has not found it necessary and useful to maintain the appearance of strength in a season of the most profound tranquility. Nor is it a novelty with us; for under the present articles of confederation, congress certainly possesses this reprobated power, and the exercise of that power is proved at this moment by her cantonments along the banks of the Ohio. But what would be our national situation were it otherwise? Every principle of policy must be subverted, and the government must declare war, before they are prepared to carry it on. Whatever may be the provocation, however important the object in view, and however necessary dispatch Edition: current; Page: [174] and secrecy may be, still the declaration must precede the preparation, and the enemy will be informed of your intention, not only before you are equipped for an attack, but even before you are fortified for a defence. The consequence is too obvious to require any further delineation, and no man, who regards the dignity and safety of his country, can deny the necessity of a military force, under the controul and with the restrictions which the new constitution provides.

Perhaps there never was a charge made with less reasons than that which predicts the institution of a baneful aristocracy in the foederal senate. This body branches into two characters, the one legislative, and the other executive. In its legislative character it can effect no purpose, without the cooperation of the house of representatives, and in its executive character, it can accomplish no object, without the concurrence of the president. Thus fettered, I do not know any act which the senate can of itself perform, and such dependance necessarily precludes every idea of influence and superiority. But I will confess that in the organization of this body, a compromise between contending interests is descernible; and when we reflect how various are the laws, commerce, habits, population, and extent of the confederated states, this evidence of mutual concession and accommodation ought rather to command a generous applause, than to excite jealousy and reproach. For my part, my admiration can only be equalled by my astonishment, in beholding so perfect a system, formed from such heterogeneous materials.

The next accusation I shall consider, is that which represents the foederal constitution as not only calculated, but designedly framed, to reduce the state governments to mere corporations, and eventually to annihilate them. Those who have employed the term corporation upon this occasion, are not perhaps aware of its extent. In common parlance, indeed, it is generally applied to petty associations for the ease and conveniency of a few individuals; but in its enlarged sense, it will comprehend the government of Pennsylvania, the existing union of the states, and even this projected system is nothing more than a formal act of incorporation. But upon what pretence can it be alledged that it was designed to annihilate the state governments? For, I will undertake to prove that upon their existence, depends the existence of the foederal plan. For this purpose, permit me to call your attention to the manner in which the president, senate, and Edition: current; Page: [175] house of representatives, are proposed to be appointed. The president is to be chosen by electors, nominated in such manner as the legislature of each state may direct; so that if there is no legislature, there can be no electors, and consequently the office of president cannot be supplied. The senate is to be composed of two senators from each state, chosen by the legislature; and therefore if there is no legislature, there can be no senate. The house of representatives, is to be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature,—unless therefore, there is a state legislature, that qualification cannot be ascertained, and the popular branch of the foederal constitution must likewise be extinct. From this view, then it is evidently absurd to suppose, that the annihilation of the separate governments will result from their union; or, that having that intention, the authors of the new system would have bound their connection with such indissoluble ties. Let me here advert to an arrangement highly advantageous, for you will perceive, without prejudice to the powers of the legislature in the election of senators, the people at large will acquire an additional privilege in returning members to the house of representatives—whereas, by the present confederation, it is the legislature alone that appoints the delegates to Congress.

The power of direct taxation has likewise been treated as an improper delegation to the foederal government; but when we consider it as the duty of that body to provide for the national safety, to support the dignity of the union, and to discharge the debts contracted upon the collective faith of the states for their common benefit, it must be acknowledged, that those upon whom such important obligations are imposed, ought in justice and in policy to possess every means requisite for a faithful performance of their trust. But why should we be alarmed with visionary evils? I will venture to predict, that the great revenue of the United States must, and always will be raised by impost, for, being at once less obnoxious, and more productive, the interest of the government will be best promoted by the accommodation of the people. Still however, the objects of direct taxation should be within reach in all cases of emergency; and there is no more reason to apprehend oppression in the mode of collecting a revenue from this resource, than in the form of an impost, which, by universal assent, is Edition: current; Page: [176] left to the authority of the foederal government. In either case, the force of civil institutions will be adequate to the purpose; and the dread of military violence, which has been assiduously disseminated, must eventually prove the mere effusion of a wild imagination, or a factious spirit. But the salutary consequences that must flow from thus enabling the government to receive and support the credit of the union, will afford another answer to the objections upon this ground. The State of Pennsylvania particularly, which has encumbered itself with the assumption of a great proportion of the public debt, will derive considerable relief and advantage; for, as it was the imbecility of the present confederation, which gave rise to the funding law, that law must naturally expire, when a competent and energetic foederal system shall be substituted—the state will then be discharged from an extraordinary burthen, and the national creditor will find it to be his interest to return to his original security.

After all, my fellow citizens, it is neither extraordinary or unexpected, that the constitution offered to your consideration, should meet with opposition. It is the nature of man to pursue his own interest, in preference to the public good; and I do not mean to make any personal reflection, when I add, that it is the interest of a very numerous, powerful, and respectable body to counteract and destroy the excellent work produced by the late convention. All the offices of government, and all the appointments for the administration of justice and the collection of the public revenue, which are transferred from the individual to the aggregate sovereignty of the states, will necessarily turn the stream of influence and emolument into a new channel. Every person therefore, who either enjoys, or expects to enjoy, a place of profit under the present establishment, will object to the proposed innovation; not, in truth, because it is injurious to the liberties of his country, but because it affects his schemes of wealth and consequence. I will confess indeed, that I am not a blind admirer of this plan of government, and that there are some parts of it, which if my wish had prevailed, would certainly have been altered. But, when I reflect how widely men differ in their opinions, and that every man (and the observation applies likewise to every state) has an equal pretension to assert his own, I am satisfied that any thing nearer to perfection could not have been accomplished. If there are errors, it should be remembered, that the seeds of reformation are sown in the work itself, and the concurrence Edition: current; Page: [177] of two thirds of the congress may at any time introduce alterations and amendments. Regarding it then, in every point of view, with a candid and disinterested mind, I am bold to assert, that it is the best form of government which has ever been offered to the world.

Mr. Wilson’s speech was frequently interrupted with loud and unanimous testimonies of approbation, and the applause which was reiterated at the conclusion, evinced the general sense of its excellence, and the conviction which it had impressed upon every mind.

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Remarks of James Wilson in the Pennsylvania Convention to Ratify the Constitution of the United States, 1787.

Wilson’s remarks at the Pennsylvania Ratifying Convention are taken from volume 2 of Jonathan Elliot’s The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 1836. For the most complete account of the Pennsylvania Ratifying Convention see The Documentary History of the Ratification of the Constitution, Vol. 2, Ratification by the States: Pennsylvania, ed. Merrill Jensen, John P. Kaminski, Gaspare J. Saladino, 1976.

Monday, November 26, p.m.—Mr. WILSON. The system proposed, by the late convention, for the government of the United States, is now before you. Of that convention I had the honour to be a member. As I am the only member of that body who have the honour to be also a member of this, it may be expected that I should prepare the way for the deliberations of this assembly, by unfolding the difficulties which the late convention were obliged to encounter; by pointing out the end which they proposed to accomplish; and by tracing the general principles which they have adopted for the accomplishment of that end.

To form a good system of government for a single city or state, however limited as to territory, or inconsiderable as to numbers, has been thought to require the strongest efforts of human genius. With what conscious diffidence, then, must the members of the convention have revolved in their minds the immense undertaking which was before them. Their views could not be confined to a small or a single community, but were expanded to a great number of states; several of which contain an extent of territory, and resources of population, equal to those of some of the most respectable kingdoms on the other side of the Atlantick. Nor were even these the only objects to be comprehended within their deliberations. Numerous states yet unformed, myriads of the human race, who will inhabit regions hitherto uncultivated, were to be affected by the result of their proceedings. It was necessary, therefore, to form their calculations on a scale commensurate to a large portion of the globe.

For my own part, I have been often lost in astonishment at the vastness of the prospect before us. To open the navigation of a single river was lately thought, in Europe, an enterprise adequate to imperial glory. But Edition: current; Page: [179] could the commercial scenes of the Scheldt be compared with those that, under a good government, will be exhibited on the Hudson, the Delaware, the Potowmack, and the numerous other rivers, that water and are intended to enrich the dominions of the United States?

The difficulty of the business was equal to its magnitude. No small share of wisdom and address is requisite to combine and reconcile the jarring interests, that prevail, or seem to prevail, in a single community. The United States contain already thirteen governments mutually independent. Those governments present to the Atlantick a front of fifteen hundred miles in extent. Their soil, their climates, their productions, their dimensions, their numbers are different. In many instances a difference and even an opposition subsists among their interests; and a difference and even an opposition is imagined to subsist in many more. An apparent interest produces the same attachment as a real one; and is often pursued with no less perseverance and vigour. When all these circumstances are seen and attentively considered, will any member of this honourable body be surprised, that such a diversity of things produced a proportioned diversity of sentiment? will he be surprised that such a diversity of sentiment rendered a spirit of mutual forbearance and conciliation indispensably necessary to the success of the great work? and will he be surprised that mutual concessions and sacrifices were the consequences of mutual forbearance and conciliation? When the springs of opposition were so numerous and strong, and poured forth their waters in courses so varying, need we be surprised that the stream formed by their conjunction was impelled in a direction somewhat different from that, which each of them would have taken separately?

I have reason to think that a difficulty arose in the minds of some members of the convention from another consideration—their ideas of the temper and disposition of the people, for whom the constitution is proposed. The citizens of the United States, however different in some other respects, are well known to agree in one strongly marked feature of their character—a warm and keen sense of freedom and independence. This sense has been heightened by the glorious result of their late struggle against all the efforts of one of the most powerful nations of Europe. It was apprehended, I believe, by some, that a people so high spirited would ill brook the restraints of an efficient government. I confess that this Edition: current; Page: [180] consideration did not influence my conduct. I knew my constituents to be high spirited; but I knew them also to possess sound sense. I knew that, in the event, they would be best pleased with that system of government, which would best promote their freedom and happiness. I have often revolved this subject in my mind. I have supposed one of my constituents to ask me, why I gave such a vote on a particular question? I have always thought it would be a satisfactory answer to say—because I judged, upon the best consideration I could give, that such a vote was right. I have thought that it would be but a very poor compliment to my constituents to say, that, in my opinion, such a vote would have been proper, but that I supposed a contrary one would be more agreeable to those who sent me to the convention. I could not, even in idea, expose myself to such a retort as, upon the last answer, might have been justly made to me. Pray, sir, what reasons have you for supposing that a right vote would displease your constituents? Is this the proper return for the high confidence they have placed in you? If they have given cause for such a surmise, it was by choosing a representative, who could entertain such an opinion of them. I was under no apprehension, that the good people of this state would behold with displeasure the brightness of the rays of delegated power, when it only proved the superiour splendour of the luminary, of which those rays were only the reflection.

A very important difficulty arose from comparing the extent of the country to be governed, with the kind of government which it would be proper to establish in it. It has been an opinion, countenanced by high authority, “that the natural property of small states is, to be governed as a republick; of middling ones, to be subject to a monarch; and of large empires, to be swayed by a despotick prince; and that the consequence is, that, in order to preserve the principles of the established government, the state must be supported in the extent it has acquired; and that the spirit of the state will alter in proportion as it extends or contracts its limits.” This opinion seems to be supported, rather than contradicted, by the history of the governments in the old world. Here then the difficulty appeared in full view. On one hand, the United States contain an immense extent of territory, and, according to the foregoing opinion, a despotick government is best adapted to that extent. On the other hand, it was well known, that, however the citizens of the United States might, with pleasure, submit to Edition: current; Page: [181] the legitimate restraints of a republican constitution, they would reject, with indignation, the fetters of despotism. What then was to be done? The idea of a confederate republick presented itself. This kind of constitution has been thought to have “all the internal advantages of a republican, together with the external force of a monarchical government.” Its description is, “a convention, by which several states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of farther association.” The expanding quality of such a government is peculiarly fitted for the United States, the greatest part of whose territory is yet uncultivated.

But while this form of government enabled us to surmount the difficulty last mentioned, it conducted us to another, of which I am now to take notice. It left us almost without precedent or guide; and consequently, without the benefit of that instruction, which, in many cases, may be derived from the constitution, and history, and experience of other nations. Several associations have frequently been called by the name of confederate states, which have not, in propriety of language, deserved it. The Swiss cantons are connected only by alliances. The United Netherlands are indeed an assemblage of societies; but this assemblage constitutes no new one; and, therefore, it does not correspond with the full definition of a confederate republick. The Germanick body is composed of such disproportioned and discordant materials, and its structure is so intricate and complex, that little useful knowledge can be drawn from it. Ancient history discloses, and barely discloses to our view, some confederate republicks—the Achaean league, the Lycian confederacy, and the Amphyctionick council.1 But the facts recorded concerning their constitutions are so few and general, and their histories are so unmarked and defective, that no satisfactory information can be collected from them concerning many particular circumstances, from an accurate discernment and comparison of which alone, legitimate and practical inferences can be made from one constitution to another. Besides, the situation and dimensions of those confederacies, and the state Edition: current; Page: [182] of society, manners, and habits in them, were so different from those of the United States, that the most correct descriptions could have supplied but a very small fund of applicable remark. Thus, in forming this system, we were deprived of many advantages, which the history and experience of other ages and other countries would, in other cases, have afforded us.

Permit me to add, in this place, that the science even of government itself seems yet to be almost in its state of infancy. Governments, in general, have been the result of force, of fraud, and of accident. After a period of six thousand years has elapsed since the creation, the United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestick insurrections, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government, under which they would wish that they and their posterity should live. The ancients, so enlightened on other subjects, were very uninformed with regard to this. They seem scarcely to have had any idea of any other kinds of governments, than the three simple forms designated by the epithets, monarchical, aristocratical, and democratical. I know that much and pleasing ingenuity has been exerted, in modern times, in drawing entertaining parallels between some of the ancient constitutions and some of the mixed governments that have since existed in Europe. But I much suspect that, on strict examination, the instances of resemblance will be found to be few and weak; to be suggested by the improvements, which, in subsequent ages, have been made in government, and not to be drawn immediately from the ancient constitutions themselves, as they were intended and understood by those who framed them. To illustrate this, a similar observation may be made on another subject. Admiring criticks have fancied, that they have discovered in their favourite Homer the seeds of all the improvements in philosophy, and in the sciences, made since his time. What induces me to be of this opinion is, that Tacitus,2 the profound politician Tacitus, who lived towards the latter end of those ages which are now denominated ancient, who undoubtedly had studied the constitutions of all the states and kingdoms known before and in his time, and who certainly was qualified, in an uncommon Edition: current; Page: [183] degree, for understanding the full force and operation of each of them, considers, after all he had known and read, a mixed government, composed of the three simple forms, as a thing rather to be wished than expected: and he thinks, that if such a government could even be instituted, its duration could not be long. One thing is very certain, that the doctrine of representation in government was altogether unknown to the ancients. Now the knowledge and practice of this doctrine is, in my opinion, essential to every system, that can possess the qualities of freedom, wisdom, and energy.

It is worthy of remark, and the remark may, perhaps, excite some surprise, that representation of the people is not, even at this day, the sole principle of any government in Europe. Great Britain boasts, and she may well boast, of the improvement she has made in politicks, by the admission of representation: for the improvement is important as far as it goes; but it by no means goes far enough. Is the executive power of Great Britain founded on representation? This is not pretended. Before the revolution, many of the kings claimed to reign by divine right, and others by hereditary right; and even at the revolution, nothing farther was effected or attempted, than the recognition of certain parts of an original contract, supposed at some remote period to have been made between the king and the people. A contract seems to exclude, rather than to imply, delegated power. The judges of Great Britain are appointed by the crown. The judicial authority, therefore, does not depend upon representation, even in its most remote degree. Does representation prevail in the legislative department of the British government? Even here it does not predominate; though it may serve as a check. The legislature consists of three branches, the king, the lords, and the commons. Of these, only the latter are supposed by the constitution to represent the authority of the people. This short analysis clearly shows, to what a narrow corner of the British constitution the principle of representation is confined. I believe it does not extend farther, if so far, in any other government in Europe. For the American States were reserved the glory and the happiness of diffusing this vital principle through all the constituent parts of government. Representation is the chain of communication between the people, and those to whom they have committed the exercise of the powers of government. This chain may consist of one or more links; but in all cases it should be sufficiently strong and discernible.

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To be left without guide or precedent was not the only difficulty, in which the convention were involved, by proposing to their constituents a plan of a confederate republick. They found themselves embarrassed with another of peculiar delicacy and importance; I mean that of drawing a proper line between the national government and the governments of the several states. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined in its operation and effects within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends in its operation or effects beyond the bounds of a particular state, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty; because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care. It is only in mathematical science, that a line can be described with mathematical precision. But I flatter myself that, upon the strictest investigation, the enumeration will be found to be safe and unexceptionable; and accurate too, in as great a degree as accuracy can be expected in a subject of this nature. Particulars under this head will be more properly explained, when we descend to the minute view of the enumeration which is made in the proposed constitution.

After all, it will be necessary, that, on a subject so peculiarly delicate as this, much prudence, much candour, much moderation, and much liberality should be exercised and displayed, both by the federal government and by the governments of the several states. It is to be hoped, that those virtues in government will be exercised and displayed, when we consider, that the powers of the federal government and those of the state governments are drawn from sources equally pure. If a difference can be discovered between them, it is in favour of the federal government; because that government is founded on a representation of the whole union; whereas the government of any particular state is founded only on the representation of a part, inconsiderable when compared with the whole. Is it not more reasonable to suppose, that the counsels of the whole will embrace the interest Edition: current; Page: [185] of every part, than that the counsels of any part will embrace the interests of the whole.

I intend not, sir, by this description of the difficulties with which the convention were surrounded, to magnify their skill or their merit in surmounting them, or to insinuate that any predicament, in which the convention stood, should prevent the closest and most cautious scrutiny into the performance, which they have exhibited to their constituents and to the world. My intention is of far other and higher aim—to evince by the conflicts and difficulties which must arise from the many and powerful causes which I have enumerated, that it is hopeless and impracticable to form a constitution, which will, in every part, be acceptable to every citizen, or even to every government in the United States; and that all which can be expected is, to form such a constitution as, upon the whole, is the best that can possibly be obtained. Man and perfection!—a state and perfection!—an assemblage of states and perfection! Can we reasonably expect, however ardently we may wish, to behold the glorious union?

I can well recollect, though I believe I cannot convey to others, the impression, which, on many occasions, was made by the difficulties which surrounded and pressed the convention. The great undertaking, at some times, seemed to be at a stand; at other times, its motions seemed to be retrograde. At the conclusion, however, of our work, many of the members expressed their astonishment at the success with which it terminated.

Having enumerated some of the difficulties which the convention were obliged to encounter in the course of their proceedings, I shall next point out the end which they proposed to accomplish. Our wants, our talents, our affections, our passions, all tell us that we were made for a state of society. But a state of society could not be supported long or happily without some civil restraint. It is true that, in a state of nature, any one individual may act uncontrolled by others; but it is equally true, that, in such a state, every other individual may act uncontrolled by him. Amidst this universal independence, the dissensions and animosities between interfering members of the society would be numerous and ungovernable. The consequence would be, that each member, in such a natural state, would enjoy less liberty, and suffer more interruption, than he would in a regulated society. Hence the universal introduction of governments of some kind or other into the social state. The liberty of every member is increased by this introduction; for each gains more by the limitation of the freedom of every Edition: current; Page: [186] other member, than he loses by the limitation of his own. The result is, that civil government is necessary to the perfection and happiness of man. In forming this government, and carrying it into execution, it is essential that the interest and authority of the whole community should be binding on every part of it.

The foregoing principles and conclusions are generally admitted to be just and sound with regard to the nature and formation of single governments, and the duty of submission to them. In some cases they will apply, with much propriety and force, to states already formed. The advantages and necessity of civil government among individuals in society are not greater or stronger than, in some situations and circumstances, are the advantages and necessity of a federal government among states. A natural and a very important question now presents itself. Is such the situation—are such the circumstances of the United States? A proper answer to this question will unfold some very interesting truths.

The United States may adopt any one of four different systems. They may become consolidated into one government, in which the separate existence of the states shall be entirely absorbed. They may reject any plan of union or association, and act as separate and unconnected states. They may form two or more confederacies. They may unite in one federal republick. Which of these systems ought to have been proposed by the convention?—To support with vigour, a single government over the whole extent of the United States, would demand a system of the most unqualified and the most unremitted despotism. Such a number of separate states, contiguous in situation, unconnected and disunited in government, would be, at one time, the prey of foreign force, foreign influence, and foreign intrigue; at another, the victim of mutual rage, rancour, and revenge. Neither of these systems found advocates in the late convention: I presume they will not find advocates in this. Would it be proper to divide the United States into two or more confederacies? It will not be unadvisable to take a more minute survey of this subject. Some aspects, under which it may be viewed, are far from being, at first sight, uninviting. Two or more confederacies would be each more compact and more manageable, than a single one extending over the same territory. By dividing the United States into two or more confederacies, the great collision of interests, apparently or really different and contrary, in the whole extent of their dominion, would be broken, and in a great measure disappear in the several parts. But these advantages, Edition: current; Page: [187] which are discovered from certain points of view, are greatly overbalanced by inconveniences that will appear on a more accurate examination. Animosities, and perhaps wars, would arise from assigning the extent, the limits, and the rights of the different confederacies. The expenses of governing would be multiplied by the number of federal governments. The danger resulting from foreign influence and mutual dissensions would not, perhaps, be less great and alarming in the instance of different confederacies, than in the instance of different though more numerous unassociated states. These observations, and many others that might be made on the subject, will be sufficient to evince, that a division of the United States into a number of separate confederacies would probably be an unsatisfactory and an unsuccessful experiment. The remaining system which the American States may adopt is, a union of them under one confederate republick. It will not be necessary to employ much time or many arguments to show, that this is the most eligible system that can be proposed. By adopting this system, the vigour and decision of a wide spreading monarchy may be joined to the freedom and beneficence of a contracted republick. The extent of territory, the diversity of climate and soil, the number, and greatness, and connexion of lakes and rivers, with which the United States are intersected and almost surrounded, all indicate an enlarged government to be fit and advantageous for them. The principles and dispositions of their citizens indicate, that in this government liberty shall reign triumphant. Such indeed have been the general opinions and wishes entertained since the era of our independence. If those opinions and wishes are as well founded as they have been general, the late convention were justified in proposing to their constituents one confederate republick, as the best system of a national government for the United States.

In forming this system, it was proper to give minute attention to the interest of all the parts; but there was a duty of still higher import—to feel and to show a predominating regard to the superiour interests of the whole. If this great principle had not prevailed, the plan before us would never have made its appearance. The same principle that was so necessary in forming it, is equally necessary in our deliberations, whether we should reject or ratify it.

I make these observations with a design to prove and illustrate this great and important truth—that in our decisions on the work of the late convention, we should not limit our views and regards to the state of Edition: current; Page: [188] Pennsylvania. The aim of the convention was, to form a system of good and efficient government on the more extensive scale of the United States. In this, as in every other instance, the work should be judged with the same spirit with which it was performed. A principle of duty as well as of candour demands this.

We have remarked, that civil government is necessary to the perfection of society: we now remark, that civil liberty is necessary to the perfection of civil government. Civil liberty is natural liberty itself, devested only of that part, which, placed in the government, produces more good and happiness to the community, than if it had remained in the individual. Hence it follows, that civil liberty, while it resigns a part of natural liberty, retains the free and generous exercise of all the human faculties, so far as it is compatible with the publick welfare.

In considering and developing the nature and end of the system before us, it is necessary to mention another kind of liberty, which has not yet, as far as I know, received a name. I shall distinguish it by the appellation of federal liberty. When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republick is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as states. The principles which directed, in the former case, what part of the natural liberty of the man ought to be given up, and what part ought to be retained, will give similar directions in the latter case. The states should resign to the national government that part, and that part only, of their political liberty, which, placed in that government, will produce more good to the whole, than if it had remained in the several states. While they resign this part of their political liberty, they retain the free and generous exercise of all their other faculties as states, so far as it is compatible with the welfare of the general and superintending confederacy.

Since states as well as citizens are represented in the constitution before us, and form the objects on which that constitution is proposed to operate, it was necessary to notice and define federal as well as civil liberty.

These general reflections have been made in order to introduce, with more propriety and advantage, a practical illustration of the end proposed to be accomplished by the late convention.

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It has been too well known—it has been too severely felt—that the present confederation is inadequate to the government and to the exigencies of the United States. The great struggle for liberty in this country, should it be unsuccessful, will probably be the last one which she will have for her existence and prosperity, in any part of the globe. And it must be confessed, that this struggle has, in some of the stages of its progress, been attended with symptoms that foreboded no fortunate issue. To the iron hand of tyranny, which was lifted up against her, she manifested, indeed, an intrepid superiority. She broke in pieces the fetters which were forged for her, and showed that she was unassailable by force. But she was environed by dangers of another kind, and springing from a very different source. While she kept her eye steadily fixed on the efforts of oppression, licentiousness was secretly undermining the rock on which she stood.

Need I call to your remembrance the contrasted scenes, of which we have been witnesses? On the glorious conclusion of our conflict with Britain, what high expectations were formed concerning us by others! What high expectations did we form concerning ourselves! Have those expectations been realized? No. What has been the cause? Did our citizens lose their perseverance and magnanimity? No. Did they become insensible of resentment and indignation at any high handed attempt, that might have been made to injure or enslave them? No. What then has been the cause? The truth is, we dreaded danger only on one side: this we manfully repelled. But on another side, danger, not less formidable, but more insidious, stole in upon us; and our unsuspicious tempers were not sufficiently attentive, either to its approach or to its operations. Those, whom foreign strength could not overpower, have well nigh become the victims of internal anarchy.

If we become a little more particular, we shall find that the foregoing representation is by no means exaggerated. When we had baffled all the menaces of foreign power, we neglected to establish among ourselves a government, that would ensure domestick vigour and stability. What was the consequence? The commencement of peace was the commencement of every disgrace and distress, that could befal a people in a peaceful state. Devoid of national power, we could not prohibit the extravagance of our importations, nor could we derive a revenue from their excess. Devoid of national importance, we could not procure for our exports a tolerable sale at foreign markets. Devoid of national credit, we saw our publick securities Edition: current; Page: [190] melt in the hands of the holders, like snow before the sun. Devoid of national dignity, we could not, in some instances, perform our treaties on our parts; and, in other instances, we could neither obtain nor compel the performance of them on the part of others. Devoid of national energy, we could not carry into execution our own resolutions, decisions, or laws.

Shall I become more particular still? The tedious detail would disgust me: nor is it now necessary. The years of languor are past. We have felt the dishonour, with which we have been covered: we have seen the destruction with which we have been threatened. We have penetrated to the causes of both, and when we have once discovered them, we have begun to search for the means of removing them. For the confirmation of these remarks, I need not appeal to an enumeration of facts. The proceedings of congress, and of the several states, are replete with them. They all point out the weakness and insufficiency of the present confederation as the cause, and an efficient general government as the only cure of our political distempers.

Under these impressions, and with these views, was the late convention appointed; and under these impressions, and with these views, the late convention met.

We now see the great end which they proposed to accomplish. It was to frame, for the consideration of their constituents, one federal, and national constitution—a constitution that would produce the advantages of good, and prevent the inconveniences of bad government—a constitution, whose beneficence and energy would pervade the whole union, and bind and embrace the interests of every part—a constitution that would ensure peace, freedom, and happiness, to the states and people of America.

We are now naturally led to examine the means, by which they proposed to accomplish this end. This opens more particularly to our view the important discussion before us. But previously to our entering upon it, it will not be improper to state some general and leading principles of government, which will receive particular applications in the course of our investigations.

There necessarily exists in every government a power, from which there is no appeal; and which, for that reason, may be termed supreme, absolute, and uncontrollable. Where does this power reside? To this question, writers on different governments will give different answers. Sir William Blackstone will tell you, that in Britain, the power is lodged in the British parliament; that the parliament may alter the form of the government; Edition: current; Page: [191] and that its power is absolute and without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are, at least, no traces of practice, conformable to such a principle. The British constitution is just what the British parliament pleases. When the parliament transferred legislative authority to Henry the eighth, the act transferring it could not, in the strict acceptation of the term, be called unconstitutional.

To control the power and conduct of the legislature by an overruling constitution, was an improvement in the science and practice of government reserved to the American States.

Perhaps some politician, who has not considered, with sufficient accuracy, our political systems, would answer, that, in our governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superiour to our legislatures; so the people are superiour to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess, over our constitutions, control in act, as well as in right.

The consequence is, that the people may change the constitutions, whenever and however they please. This is a right, of which no positive institution can ever deprive them.

These important truths, sir, are far from being merely speculative: we, at this moment, speak and deliberate under their immediate and benign influence. To the operation of these truths, we are to ascribe the scene, hitherto unparallelled, which America now exhibits to the world—a gentle, a peaceful, a voluntary, and a deliberate transition from one constitution of government to another. In other parts of the world, the idea of revolutions in government is, by a mournful and indissoluble association, connected with the idea of wars, and all the calamities attendant on wars. But happy experience teaches us to view such revolutions in a very different light—to consider them only as progressive steps in improving the knowledge of government, and increasing the happiness of society and mankind.

Oft have I viewed with silent pleasure and admiration the force and prevalence, through the United States, of this principle—that the supreme power resides in the people; and that they never part with it. It may Edition: current; Page: [192] be called the panacea in politicks. There can be no disorder in the community but may here receive a radical cure. If the errour be in the legislature, it may be corrected by the constitution; if in the constitution, it may be corrected by the people. There is a remedy, therefore, for every distemper in government, if the people are not wanting to themselves. For a people wanting to themselves, there is no remedy: from their power, as we have seen, there is no appeal: to their errour, there is no superiour principle of correction.

There are three simple species of government—monarchy, where the supreme power is in a single person—aristocracy, where the supreme power is in a select assembly, the members of which either fill up, by election, the vacancies in their own body, or succeed to their places in it by inheritance, property, or in respect of some personal right or qualification—a republick or democracy, where the people at large retain the supreme power, and act either collectively or by representation.

Each of these species of government has its advantages and disadvantages.

The advantages of a monarchy are, strength, despatch, secrecy, unity of counsel. Its disadvantages are, tyranny, expense, ignorance of the situation and wants of the people, insecurity, unnecessary wars, evils attending elections or successions.

The advantages of aristocracy are, wisdom, arising from experience and education. Its disadvantages are, dissensions among themselves, oppression to the lower orders.

The advantages of democracy are, liberty, equal, cautious, and salutary laws, publick spirit, frugality, peace, opportunities of exciting and producing abilities of the best citizens. Its disadvantages are, dissensions, the delay and disclosure of publick counsels, the imbecility of publick measures retarded by the necessity of a numerous consent.

A government may be composed of two or more of the simple forms abovementioned. Such is the British government. It would be an improper government for the United States; because it is inadequate to such an extent of territory; and because it is suited to an establishment of different orders of men. A more minute comparison between some parts of the British constitution, and some parts of the plan before us, may, perhaps, find a proper place in a subsequent period of our business.

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What is the nature and kind of that government, which has been proposed for the United States, by the late convention? In its principle, it is purely democratical: but that principle is applied in different forms, in order to obtain the advantages, and exclude the inconveniences of the simple modes of government.

If we take an extended and accurate view of it, we shall find the streams of power running in different directions, in different dimensions, and at different heights, watering, adorning, and fertilizing the fields and meadows, through which their courses are led; but if we trace them, we shall discover, that they all originally flow from one abundant fountain. In this constitution, all authority is derived from the people.

Fit occasions will hereafter offer for particular remarks on the different parts of the plan. I have now to ask pardon of the house for detaining them so long.

Wednesday, October3 28, 1787, a.m.—Mr. Wilson. This will be a proper time for making an observation or two on what may be called the preamble to this Constitution. I had occasion, on a former day, to mention that the leading principle in the politics, and that which pervades the American constitutions, is, that the supreme power resides in the people. This Constitution, Mr. President, opens with a solemn and practical recognition of that principle:—“We, the people of the United States, in order to form a more perfect union, establish justice, &c., do ordain and establish this Constitution for the United States of America.” It is announced in their name—it receives its political existence from their authority: they ordain and establish. What is the necessary consequence? Those who ordain and establish have the power, if they think proper, to repeal and annul. A proper attention to this principle may, perhaps, give ease to the minds of some who have heard much concerning the necessity of a bill of rights.

Its establishment, I apprehend, has more force than a volume written on the subject. It renders this truth evident—that the people have a right to do what they please with regard to the government. I confess I feel a kind of pride in considering the striking difference between the foundation on which the liberties of this country are declared to stand in this Constitution, and the footing on which the liberties of England are said to be Edition: current; Page: [194] placed. The Magna Charta of England is an instrument of high value to the people of that country. But, Mr. President, from what source does that instrument derive the liberties of the inhabitants of that kingdom? Let it speak for itself. The king says, “We have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all the freemen of this our realm, these liberties following, to be kept in our kingdom of England forever.”When this was assumed as the leading principle of that government, it was no wonder that the people were anxious to obtain bills of rights, and to take every opportunity of enlarging and securing their liberties. But here, sir, the fee-simple remains in the people at large, and by this Constitution they do not part with it.

I am called upon to give a reason why the Convention omitted to add a bill of rights to the work before you. I confess, sir, I did think that, in point of propriety, the honorable gentleman ought first to have furnished some reasons to show such an addition to be necessary; it is natural to prove the affirmative of a proposition; and, if he had established the propriety of this addition, he might then have asked why it was not made.

I cannot say, Mr. President, what were the reasons of every member of that Convention for not adding a bill of rights. I believe the truth is, that such an idea never entered the mind of many of them. I do not recollect to have heard the subject mentioned till within about three days of the time of our rising; and even then, there was no direct motion offered for any thing of the kind. I may be mistaken in this; but as far as my memory serves me, I believe it was the case. A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned at, in that house, with the greatest indignation. Even in a single government, if the powers of the people rest on the same establishment as is expressed in this Constitution, a bill of rights is by no means a necessary measure. In a government possessed of enumerated powers, such a measure would be not only unnecessary, but preposterous and dangerous. Whence comes this notion, that in the United States there is no security without a bill of rights? Have the citizens of South Carolina no security for their liberties? They have no bill of rights. Are the citizens on the eastern side of the Delaware less free, or less secured in their liberties, than those on the western side? The state of New Jersey has no bill of rights. The state of New York Edition: current; Page: [195] has no bill of rights. The states of Connecticut and Rhode Island have no bill of rights. I know not whether I have exactly enumerated the states who have not thought it necessary to add a bill of rights to their constitutions; but this enumeration, sir, will serve to show by experience, as well as principle, that, even in single governments, a bill of rights is not an essential or necessary measure. But in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete. On the other hand, an imperfect enumeration of the powers of government reserves all implied power to the people; and by that means the constitution becomes incomplete. But of the two, it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous nor important as an omission in the enumeration of the rights of the people.

Mr. President, as we are drawn into this subject, I beg leave to pursue its history a little farther. The doctrine and practice of declarations of rights have been borrowed from the conduct of the people of England on some remarkable occasions; but the principles and maxims, on which their government is constituted, are widely different from those of ours. I have already stated the language of Magna Charta. After repeated confirmations of that instrument, and after violations of it repeated equally often, the next step taken in this business was, when the petition of rights was presented to Charles I.

It concludes in this manner: “All of which they most humbly pray to be allowed, as their rights and liberties, according to the laws and statutes of this realm.” (8 th Par. Hist. 150.) One of the most material statutes of the realm was Magna Charta; so that we find they continue upon the old ground, as to the foundation on which they rest their liberties. It was not till the era of the revolution that the two houses assume a higher tone, and “demand and insist upon all the premises as their undoubted rights Edition: current; Page: [196] and liberties.” (Par. Deb. 261.) But when the whole transaction is considered, we shall find that those rights and liberties are claimed only on the foundation of an original contract, supposed to have been made, at some former period, between the king and the people. (1 Blackstone, 233.)

But, in this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with. When, therefore, they possess, as I have already mentioned, the fee-simple of authority, why should they have recourse to the minute and subordinate remedies, which can be necessary only to those who pass the fee, and reserve only a rent-charge?

To every suggestion concerning a bill of rights, the citizens of the United States may always say, We reserve the right to do what we please.

I concur most sincerely with the honorable gentleman who was last up in one sentiment—that if our liberties will be insecure under this system of government, it will become our duty not to adopt, but to reject it. On the contrary, if it will secure the liberties of the citizens of America,—if it will not only secure their liberties, but procure them happiness,—it becomes our duty, on the other hand, to assent to and ratify it. With a view to conduct us safely and gradually to the determination of that important question, I shall beg leave to notice some of the objections that have fallen from the honorable gentleman from Cumberland, (Whitehill).4 But, before I proceed, permit me to make one general remark. Liberty has a formidable enemy on each hand; on one there is tyranny, on the other licentiousness. In order to guard against the latter, proper powers ought to be given to government: in order to guard against the former, those powers ought to be properly distributed. It has been mentioned, and attempts have been made to establish the position, that the adoption of this Constitution will necessarily be followed by the annihilation of all the state governments. If this was a necessary consequence, the objection would operate in my mind wiThexceeding great force. But, sir, I think the inference is rather unnatural, that a government will produce the annihilation of others, upon the very existence of which its own existence depends. Edition: current; Page: [197] Let us, sir, examine this Constitution, and mark its proportions and arrangements. It is composed of three great constituent parts—the legislative department, the executive department, and the judicial department. The legislative department is subdivided into two branches—the House of Representatives and the Senate. Can there be a House of Representatives in the general government, after the state governments are annihilated? Care is taken to express the character of the electors in such a manner, that even the popular branch of the general government cannot exist unless the governments of the states continue in existence.

How do I prove this? By the regulation that is made concerning the important subject of giving suffrage. Article 1, section 2: “And the electors in each state shall have the qualifications for electors of the most numerous branch of the state legislature.” Now, sir, in order to know who are qualified to be electors of the House of Representatives, we are to inquire who are qualified to be electors of the legislature of each state. If there be no legislature in the states, there can be no electors of them: if there be no such electors, there is no criterion to know who are qualified to elect members of the House of Representatives. By this short, plain deduction, the existence of state legislatures is proved to be essential to the existence of the general government.

Let us proceed now to the second branch of the legislative department. In the system before you, the senators, sir,—those tyrants that are to devour the legislatures of the states,—are to be chosen by the state legislatures themselves. Need any thing more be said on this subject? So far is the principle of each state’s retaining the power of self-preservation from being weakened or endangered by the general government, that the Convention went further, perhaps, than was strictly proper, in order to secure it; for, in this second branch of the legislature, each state, without regard to its importance, is entitled to an equal vote. And in the articles respecting amendments of this Constitution, it is provided “That no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

Does it appear, then, that provision for the continuance of the state governments was neglected, in framing this Constitution? On the contrary, it was a favorite object in the Convention to secure them.

The President of the United States is to be chosen by electors appointed in the differens, in such manner as the legislature shall direct. Unless Edition: current; Page: [198] there be legislatures to appoint electors, the President canot be chosen: the idea, therefore, of the existing government of the states, is presupposed in the very mode of constituting the legislative and the executive departments of the general government. The same principle will apply to the judicial department. The judges are to be nominated by the President, and appointed by him, with the advice and consent of the Senate. This shows that the judges cannot exist without the President and Senate. I have already shown that the President and Senate cannot exist without the existence of the state legislatures. Have I misstated any thing? Is not the evidence indisputable, that the state governments will be preserved, or that the general government must tumble amidst their ruins? It is true, indeed, sir, although it presupposes the existence of state governments, yet this Constitution does not suppose them to be the sole power to be respected.

In the Articles of Confederation, the people are unknown, but in this plan they are represented; and in one of the branches of the legislature, they are represented immediately by persons of their own choice.

I hope these observations on the nature and formation of this system are seen in their full force; many of them were so seen by some gentlemen of the late Convention. After all this, could it have been expected that assertions such as have been hazarded on this floor would have been made—“that it was the business of their deliberations to destroy the state governments; that they employed four months to accomplish this object; and that such was their intentions”? That honorable gentleman may be better qualified to judge of their intentions than themselves. I know my own; and as to those of the other members, I believe that they have been very improperly and unwarrantably represented. Intended to destroy! Where did he obtain his information? Let the tree be judged of by its fruit.

Mr. President, the only proof that is attempted to be drawn from the work itself, is that which has been urged from the fourth section of the first article. I will read it: “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 places of choosing senators.”

And is this a proof that it was intended to carry on this government after the state governments should be dissolved and abrogated? This clause Edition: current; Page: [199] is not only a proper, but necessary one. I have already shown what pains have been taken in the Convention to secure the preservation of the state governments. I hope, sir, that it was no crime to sow the seed of self-preservation in the federal government; without this clause, it would not possess self-preserving power. By this clause, the times, places, and manner of holding elections, shall be prescribed in each state, by the legislature thereof. I think it highly proper that the federal government should throw the exercise of this power into the hands of the state legislatures; but not that it should be placed there entirely without control.

If the Congress had it not in their power to make regulations, what might be the consequences? Some states might make no regulations at all on the subject. And shall the existence of the House of Representatives, the immediate representation of the people in Congress, depend upon the will and pleasure of the state governments? Another thing may possibly happen; I don’t say it will; but we were obliged to guard even against possibilities, as well as probabilities. A legislature may be willing to make the necessary regulations; yet the minority of that legislature may, by absenting themselves, break up the house, and prevent the execution of the intention of the majority. I have supposed the case, that some state governments may make no regulations at all; it is possible, also, that they may make improper regulations. I have heard it surmised by the opponents of this Constitution, that the Congress may order the election for Pennsylvania to be held at Pittsburg, and thence conclude that it would be improper for them to have the exercise of the power. But suppose, on the other hand, that the assembly should order an election to be held at Pittsburg; ought not the general government to have the power to alter such improper election of one of its own constituent parts? But there is an additional reason still that shows the necessity of this provisionary clause. The members of the Senate are elected by the state legislatures. If those legislatures possessed, uncontrolled, the power of prescribing the times, places, and manner, of electing members of the House of Representatives, the members of one branch of the general legislature would be the tenants at will of the electors of the other branch; and the general government would lie prostrate at the mercy of the legislatures of the several states.

I will ask, now, Is the inference fairly drawn, that the general government was intended to swallow up the state governments? Or was it calculated Edition: current; Page: [200] to answer such end? Or do its framers deserve such censure from honorable gentlemen? We find, on examining this paragraph, that it contains nothing more than the maxims of self-preservation, so abundantly secured by this Constitution to the individual states. Several other objections have been mentioned. I will not, at this time, enter into a discussion of them, though I may hereafter take notice of such as have any show of weight; but I thought it necessary to offer, at this time, the observations I have made, because I consider this as an important subject, and think the objection would be a strong one, if it was well founded.

Friday, November 30, 1787, a.m.—Mr. Wilson. It is objected that the number of members in the House of Representatives is too small. This is a subject somewhat 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 reason 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 numbers—that a large number is not so necessary in this case as in the cases of state legislatures. Edition: current; Page: [201] 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.

Saturday, December 1, 1787, a.m.—Mr. Wilson. 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 cannot, 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 Edition: current; Page: [202] 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 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 vested 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 the 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 objects 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 Edition: current; Page: [203] her just proportion to discharge; no 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 coextensive with the objects of the national government. As 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 restricted 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 state! and 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 resort—from 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 Edition: current; Page: [204] 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 power 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 inconsistently 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 itself; they 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 Edition: current; Page: [205] 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 indigested 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 who 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 Edition: current; Page: [206] such a man must have every law presented to him, before it can become binding on 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 legislation. If 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. This 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 words 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,)5 on the subject of the press, I beg leave to make an observation. It is very Edition: current; Page: [207] 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 would drop 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 country. What 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 2d section of the 3d 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 Edition: current; Page: [208] consider that this Constitution was not meant merely for Pennsylvania. In some states, the juries are not taken from a single country. 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 this 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,6 these opponents rise only to destroy each other.

Monday, December 3, 1787, a.m.—Mr. Wilson. Take detached parts of any system whatsoever, in the manner these gentlemen have hitherto taken this Constitution, and you will make it absurd and inconsistent with itself. I do not confine this observation to human performances alone; it will apply to divine writings. An anecdote, which I have heard, exemplifies this observation. When Sternhold and Hopkins’s7 version of the Psalms was usually sung in the churches, a line was first read by the clerk, Edition: current; Page: [209] and then sung by the congregation. A sailor had stepped in, and heard the clerk read this line—

“The Lord will come, and he will not—”

the sailor stared, and when the clerk read the next line—

“Keep silence, but speak out—”

the sailor left the church, thinking the people were not in their senses.

This story may convey an idea of the treatment of the plan before you; for, although it contains sound sense when connected, yet, by the detached manner of considering it, it appears highly absurd.

Much fault has been found with the mode of expression used in the 1st clause of the 9th section of the 1st article. I believe I can assign a reason why that mode of expression was used, and why the term slave was not 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)8 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 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 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 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.

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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 mean time, 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, &c., 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, a.m.—Mr. Wilson. 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 Edition: current; Page: [211] 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 them: in 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 Grotius9 and Puffendorf, down to Vattel,10 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 Edition: current; Page: [212] 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 ask 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 any thing 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 unfortunate, 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 the 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.

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After having mentioned, in a cursory manner, the foregoing objections, we now arrive 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 soverergnty 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 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 soverergnty 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 supposed it to be vested in that body. I stated further, that if the question was asked, some politicians who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, he 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 Edition: current; Page: [214] 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 not—that the people meant not—and 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 powers 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 abolish it, and institute 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.

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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)11 was well warranted in saying that all that could be done was done, to cut off the people from the right of amending; for it cannot 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 under 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. But, because this recognition is made in the proposed Constitution, an exception is taken to the whole of it; for we are Edition: current; Page: [216] told it is a violation of the present Confederation—a 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 others, 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 in the same hour, we are told by honorable gentlemen that those 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 Edition: current; Page: [217] 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 governments 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 by 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 little to the people. Let not this be called cajoling the people—the 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 to show 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 governments, and to place it in the general government. It was Edition: current; Page: [218] also the design that the people should be admitted to the exercise of some powers which they did not exercise under the present federation. 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 objection—

That the last clause of the 8th section 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 legislature 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 Union,—so far it was intended to be a consolidation, and Edition: current; Page: [219] 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 governments 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 Edition: current; Page: [220] 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 and 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; not 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 members 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 government.

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 powers 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 Edition: current; Page: [221] 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 Edition: current; Page: [222] state legislatures relate 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 elections, 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 said; and 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 Edition: current; Page: [223] a standing army, they may be made for seven, ten, or fourteen years: the civil list is established during the life of a prince. Another objection is, “that the members of the Senate may enrich themselves; they may hold their office as long as they live, and there is no power to prevent them; the Senate will swallow up every thing.” 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 extent of every one of them, the Senate stands controlled. If it is that monster which it is 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 lays 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 Edition: current; Page: [224] 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 the 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 rest the matter there? Suppose this fund should not prove sufficient; ought the public debts to remain unpaid, or the exigencies of government be left unprovided for? should our tranquillity 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 8th section of the 1st article; that is, “to Edition: current; Page: [225] 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 taxes 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 state governments.

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 unlimitted 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 to point to the words in the constitution, beginning at the 8th sect. art. 1st. “The Congress (it says) shall have power, &c.” 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 this 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 Edition: current; Page: [226] whatsoever to interfere with it, by licensing it to 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 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 consequences 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 gainst 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 Pennsylvania Edition: current; Page: [227] 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 has 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 intrusted 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,12 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 accident happened. One evening, a link-boy was lighting him along, and, coming to a gutter, the boy jumped nimbly over it. Mr. Pope called to him to turn, adding, “God mend me!” The arch rogue, turning to light him, looked at him, and repeated, “God mend you! He would sooner make half-a-dozen new ones.” This would apply to the present Confederation; for it would be easier to make another than to amend 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 that the power of war, peace, and treaties, that of levying money and regulating commerce, and the corresponding executive and judicial authorities, should be fully Edition: current; Page: [228] 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 that 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 nowhere 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.

Eodem Die,13 p.m.—Mr. Wilson. Before I proceed to consider those qualities in the Constitution before us, which I think will insure it 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 Edition: current; Page: [229] 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 excellences. 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 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 III., 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 encumber 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 1, “All legislative powers, herein granted, shall be vested in a Congress of the United States, Edition: current; Page: [230] 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 assent: therefore, he possesses no legislative authority.

The effect of this 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 explanations 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 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 Edition: current; Page: [231] 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 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. Goreham, 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 Edition: current; Page: [232] 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 preventive 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 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 treasury. 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. “O!” say they, “if we could enumerate the offices, and the numerous officers that must be employed every day in collecting, receiving, and comptrolling, the moneys of the United States, the number would be almost beyond imagination.”

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I have been told, but I do not vouch for the fact, that there are, in one shape or another, more than a thousand persons, in this very state, who get their living by 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 number: instead 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 every thing; 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 regulation 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 Edition: current; Page: [234] 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 the 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 a 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 are 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 proceed to take some notice of those qualities in this Constitution Edition: current; Page: [235] 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 had 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 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 the 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 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 members of another. The king has the power of introducing members Edition: current; Page: [236] 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 extends into the other 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 could wish, yet it is more perfect than any 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 reason, 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 Edition: current; Page: [237] 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 behavior, this object has not been sufficiently secured; for if, every five or seven years, the judges are obliged to make court for their 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 behavior. 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 or 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 those 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)14 therefore I shall not Edition: current; Page: [238] 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 system: all authority, of every kind, is derived by REPRESENTATION from the PEOPLE, and the DEMOCRATIC principle is carried into every part 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, chap. 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 suffarages, 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 Edition: current; Page: [239] 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 qualifications 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 guaranties 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, chap. 3d, speaking of Holland, observes,

It is difficult for the united states to be all of equal power and extent. The Lycian (Strabo, lib. 14) 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 (Strabo, lib. 14) contributed to the expenses of the state, 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, (Strabo, lib. 14,) 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 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;15 and however excellent the model it might present, we were reduced to the Edition: current; Page: [240] necessity of working without it. Give me leave to quote the sentiments of another author, whose peculiar situation and extensive worth throw a lustre on all he says. I mean Mr. Necker,16 whose 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, (Necker on Finance, vol. i. p. 308,)—

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.

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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 section, art. 1, 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 philanthrophic European! Would he cavil at an expression? catch at a phrase? Now, 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 now mentioned, we may learn from the following sentiments on this subject; they cannot be expressed so well as in his own words (vol. 1, page 329).

The colonies of France contain, as we have seen, near five hundred thousand slaves, and it is from the number of these wretches, 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 the 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 Edition: current; Page: [242] 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 chimercial 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 any thing 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 Edition: current; Page: [243] 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.

Friday, December 7, 1787, a.m.—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 farther—there is not one of them but will be discovered to be of such a 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 interest and views of the people. To say that officers of government will oppress, when nothing can be got by oppression, Edition: current; Page: [244] is making an inference, 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 on 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 represented, where 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 Edition: current; Page: [245] 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 give 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 legislature—the 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 arisen, what a handle has been made to 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 offices; it is declared that the judges shall hold them during good behavior;—nor to the security which they will have for their salaries; they 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 Edition: current; Page: [246] this: “The 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 Carmarthen17 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 it into effect, let the legislatures of the different states do what they may.

The power of judges extends to all cases affecting ambassadors, other Edition: current; Page: [247] 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 has, and unavoidably must have, admitted 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 suiter 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 decree 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 Edition: current; Page: [248] 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 government.

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. Private credit, which fell to decay from the destruction of public credit, by a too inefficient general government, will be restored; and this valuable intercourse among ourselves must give an increase to those useful improvements that will astonish the world. At present, how are we circumstanced! Merchants of eminence will tell you that they cannot trust their property to 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 Edition: current; Page: [249] 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 any thing 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 foreigner, 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 that any gentleman, possessed of experience or knowledge on this subject, will agree that it was impossible to go Edition: current; Page: [250] 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 in their 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 verdicts 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 the system.

Tuesday, December 11, 1787, a.m.—Mr. Wilson. Three weeks have now elapsed since this Convention met. Some of the delegates attended on Tuesday, the 20th November; a great majority within a day or two afterwards; and all but one on the 4th day. We have been since employed in discussing the business for which we are sent here. I think it will now become evident to every person who takes a candid view of our discussions, that it is high time our proceedings should draw towards a conclusion.

Perhaps our debates have already continued as long, nay, longer than is sufficient for every good purpose. The business which we were intended to perform is necessarily reduced to a very narrow compass. The single question to be determined is, Shall we assent to and ratify the Constitution proposed?

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As this is the first state whose Convention has met on the subject, and as the subject itself is of very great importance, not only to Pennsylvania, but to the United States, it was thought proper fairly, openly, and candidly to canvass it. This has been done. You have heard, Mr. President, from day to day, and from week to week, the objections that could be offered from any quarter. We have heard these objections once: we have heard a great number of them repeated much oftener than once. Will it answer any valuable end, sir, to protract these debates longer? I suppose it will not. I apprehend it may serve to promote very pernicious and destructive purposes. It may, perhaps, be insinuated to other states, and even to distant parts of this state, by people in opposition to this system, that the expediency of adopting is at most very doubtful, and that the business lingers among the members of the Convention.

This would not be a true representation of the fact; for there is the greatest reason to believe that there is a very considerable majority who do not hesitate to ratify the Constitution. We were sent here to express the voice of our constituents on the subject, and I believe that many of them expected to hear the echo of that voice before this time.

When I consider the attempts that have been made on this floor, and the many misrepresentations of what has been said among us that have appeared in the public papers, printed in this city, I confess that I am induced to suspect that opportunity may be taken to pervert and abuse the principles on which the friends of this Constitution act. If attempts are made here, will they not be repeated when the distance is greater, and the means of information fewer? Will they not at length produce an uneasiness, for which there is, in fact, no cause? Ought we not to prohibit any such uses being made of the continuance of our deliberations? We do not wish to preclude debate: of this our conduct has furnished the most ample testimony. The members in opposition have not been prevented a repetition of all their objections that they could urge against this plan.

The honorable gentleman from Fayette, (Mr. Smilie,) the other evening, claimed for the minority the merit of contending for the rights of mankind; and he told us that it has been the practice of all ages to treat such minorities with contempt; he further took the liberty of observing, that, if the majority had the power, they do not want the inclination, to consign the minority to punishment. I know that claims, self-made, form Edition: current; Page: [252] no small part of the merit to which we have heard undisguised pretences; but it is one thing to claim, and it is another thing, very different indeed, to support that claim. The minority, sir, are contending for the rights of mankind; what, then, are the majority contending for? If the minority are contending for the rights of mankind, the majority must be contending for the doctrines of tyranny and slavery. Is it probable that that is the case? Who are the majority in this assembly?—Are they not the people? are they not the representatives of the people, as well as the minority? Were they not elected by the people, as well as the minority? Were they not elected by the greater part of the people? Have we a single right separate from the rights of the people? Can we forge fetters for others that will not be clasped round our own limbs? Can we make heavy chains that shall not cramp the growth of our own posterity? On what fancied distinction shall the minority assume to themselves the merit of contending for the rights of mankind?

Sir, if the system proposed by the late Convention, and the conduct of its advocates who have appeared in this house, deserve the declarations and insinuations that have been made concerning them, well may we exclaim, “Ill-fated America! thy crisis was approaching! perhaps it was come! Thy various interests were neglected—thy most sacred rights were insecure. Without a government, without energy, without confidence internally, without respect externally, the advantages of society were lost to thee! In such a situation, distressed, but not despairing, thou desiredst to reassume thy native vigor, and to lay the foundation of future empire. Thou selectedst a number of thy sons, to meet together for the purpose. The selected and honored characters met; but, horrid to tell, they not only consented, but they combined in an aristocratic system, calculated and intended to enslave their country! Unhappy Pennsylvania! thou, as a part of the Union, must share in its unfortunate fate; for when this system, after being laid before thy citizens, comes before the delegates selected by them for its consideration, there are found but three of the numerous members that have virtue enough to raise their voices in support of the rights of mankind!” America, particularly Pennsylvania, must be ill-starred, indeed, if this is a true state of the case. I trust we may address our country in far other language.

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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 a matter of surprise to see the great leading principle of this system still so very much misunderstood. “The Convention, no doubt, thought they were forming a contract!” I cannot answer for what every member thought; but I believe it cannot be said that they thought they were making a contract, because I cannot discover the least trace of a compact in that system. There can be no compact unless there are more parties than one. It is a new doctrine that one can make a compact with himself. “The Convention were forming compacts!” With whom? I know no bargains that were Edition: current; Page: [254] made there. I am unable to conceive who the parties could be. The state governments make a bargain with one another; that is the doctrine that is endeavored to be established by gentlemen in opposition,—that state sovereignties wish to be represented! But far other were the ideas of the Convention, and far other are those conveyed in the system itself.

As this subject has been often mentioned, and as often misunderstood, it may not be improper to take some further notice of it. This, Mr. President, is not a government founded upon compact; it is founded upon the power of the people. They express in their name and their authority—“We, the people, do ordain and establish,” &c.; from their ratification alone it is to take its constitutional authenticity; without that, it is no more than tabula rasa.

I know very well all the common-place rant of state sovereignties, and that government is founded in original compact. If that position was examined, it will be found not to accede very well with the true principle of free government. It does not suit the language or genius of the system before us. I think it does not accord with experience, so far as I have been able to obtain information from history.

The greatest part of governments have been founded on conquest: perhaps a few early ones may have had their origin in paternal authority. Sometimes a family united, and that family afterwards extended itself into a community. But the greatest governments which have appeared on the face of the globe have been founded in conquest. The great empires of Assyria, Persia, Macedonia, and Rome, were all of this kind. I know well that in Great Britain, since the revolution, it has become a principle that the constitution is founded in contract; but the form and time of that contract, no writer has yet attempted to discover. It was, however, recognized at the time of the revolution, therefore is politically true. But we should act very imprudently to consider our liberties as placed on such foundation.

If we go a little further on this subject, I think we shall see that the doctrine of original compact cannot be supported consistently with the best principles of government. If we admit it, we exclude the idea of amendment; because a contract once entered into between the governor and governed becomes obligatory, and cannot be altered but by the mutual consent of both parties. The citizens of united America, I presume, do not wish to stand on that footing with those to whom, from convenience, they please Edition: current; Page: [255] to delegate the exercise of the general powers necessary for sustaining and preserving the Union. They wish a principle established, by the operation of which the legislatures may feel the direct authority of the people. The people, possessing that authority, will continue to exercise it by amending and improving their own work. This Constitution may be found to have defects in it; hence amendments may become necessary; but the idea of a government founded on contract destroys the means of improvement. We hear it every time the gentlemen are up, “Shall we violate the Confederation, which directs every alteration that is thought necessary to be established by the state legislatures only!” Sir, those gentlemen must ascend to a higher source: the people fetter themselves by no contract. If your state legislatures have cramped themselves by compact, it was done without the authority of the people, who alone possess the supreme power.

I have already shown that this system is not a compact, or contract; the system itself tells you what it is; it is an ordinance and establishment of the people. I think that the force of the introduction to the work must by this time have been felt. It is not an unmeaning flourish. The expressions declare, in a practical manner, the principle of this Constitution. It is ordained and established by the people themselves; and we, who give our votes for it, are merely the proxies of our constituents. We sign it as their attorneys, and, as to ourselves, we agree to it as individuals.

We are told, by honorable gentlemen in opposition, “that the present Confederation should have been continued, but that additional powers should have been given to it; that such was the business of the late Convention, and that they had assumed to themselves the power of proposing another in its stead; and that which is proposed is such a one as was not expected by the legislature nor by the people.” I apprehend this would have been a very insecure, very inadequate, and a very pernicious mode of proceeding. Under the present Confederation, Congress certainly do not possess sufficient power; but one body of men we know they are; and were they invested with additional powers, they must become dangerous. Did not the honorable gentleman himself tell us that the powers of government, vested either in one man or one body of men, formed the very description of tyranny? To have placed in the present the legislative, the executive, and judicial authority, all of which are essential to the general government, would indubitably have produced the severest despotism. Edition: current; Page: [256] From this short deduction, one of these two things must have appeared to the Convention, and must appear to every man who is at the pains of thinking on the subject. It was indispensably necessary either to make a new distribution of the powers of government, or to give such powers to one body of men as would constitute a tyranny. If it is proper to avoid tyranny, it becomes requisite to avoid placing additional powers in the hands of a Congress constituted like the present; hence the conclusion is warranted, that a different organization ought to take place.

Our next inquiry ought to be, whether this is the most proper disposition and organization of the necessary powers. But before I consider this subject, I think it proper to notice one sentiment, expressed by an honorable gentleman from the county of Cumberland, (Mr. Whitehill.) He asserts that the extent of the government is too great, and this system cannot be executed. What is the consequence, if this assertion is true? It strikes directly at the root of the Union.

I admit, Mr. President, there are great difficulties in adapting a system of good and free government to the extent of our country. But I am sure that our interests, as citizens, as states, and as a nation, depend essentially upon a union. This Constitution is proposed to accomplish that great and desirable end. Let the experiment be made; let the system be fairly and candidly tried, before it is determined that it cannot be executed.

I proceed to another objection; for I mean to answer those that have been suggested since I had the honor of addressing you last week. It has been alleged, by honorable gentlemen, that this general government possesses powers for internal purposes, and that the general government cannot exercise internal powers. The honorable member from Westmoreland (Mr. Findley) dilates on this subject, and instances the opposition that was made by the colonies against Great Britain, to prevent her imposing internal taxes or excises. And before the federal government will be able to impose the one, or obtain the other, he considers it necessary that it should possess power for every internal purpose.

Let us examine these objections: If this government does not possess internal as well as external power, and that power for internal as well as external purposes, I apprehend that all that has hitherto been done must go for nothing. I apprehend a government that cannot answer the purposes for which it was intended is not a government for this country. I Edition: current; Page: [257] 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 defence and general welfare of the United States.

What is to be done to effect these great purposes, if an impost should be found insufficient? Suppose a war was suddenly declared against us by a foreign power, possessed of a formidable navy; our navigation would be laid prostrate, our imposts must cease; and shall our existence as a nation depend upon the peaceful navigation of our seas? A strong exertion of maritime power, on the part of an enemy, might deprive us of these sources of revenue in a few months. It may suit honorable gentlemen, who live at the western extremity of this state, that they should contribute nothing, by internal taxes, to the support of the general government. They care not what restraints are laid upon our commerce; for what is the commerce of Philadelphia to the inhabitants on the other side of the Alleghany Mountains? But though it may suit them, it does not suit those Edition: current; Page: [258] 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, more likely to be productive of that good which ought to be our constant aim.

The powers both of the general government and the state governments, under this system, are acknowledged to be so many emanations of power from the people. The great object now to be attended to, instead of disagreeing about who shall possess the supreme power, is, to consider whether the present arrangement is well calculated to promote and secure the tranquillity and happiness of our common country. These are the dictates of sound and unsophisticated sense, and what ought to employ the attention and judgment of this honorable body.

We are next told by the honorable gentleman in opposition, (as indeed Edition: current; Page: [259] 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 definition, but it does not seem to me, at least, that they have as yet expressed clear ideas upon that subject. I will endeavor to state their different ideas upon this point. The gentleman from Westmoreland, (Mr. Findley,) when speaking on this subject, says that he means, by a consolidation, that government which puts the thirteen states into one.

The honorable gentleman from Fayette (Mr. Smilie) gives you this definition: “What I mean by a consolidated government, is one that will transfer the sovereignty from the state governments to the general government.”

The honorable member from Cumberland, (Mr. Whitehill,) instead of giving you a definition, sir, tells you again, that “it is a consolidated government, and we have proved it so.”

These, I think, sir, are the different descriptions given to us of a consolidated government. As to the first, that it is a consolidated government, that puts the thirteen United States into one,—if it is meant that the general government will destroy the governments of the states, I will admit that such a government would not suit the people of America. It would be improper for this country, because it could not be proportioned to its extent, on the principles of freedom. But that description does not apply to the system before you. This, instead of placing the state governments in jeopardy, is founded on their existence. On this principle its organization depends; it must stand or fall, as the state governments are secured or ruined. Therefore, though this may be a very proper description of a consolidated government, yet it must be disregarded, as inapplicable to the proposed Constitution. It is not treated with decency when such insinuations are offered against it.

The honorable gentleman (Mr. Smilie) tells you that a consolidated government “is one that will transfer the sovereignty from the state governments to the general government.” Under this system, the sovereignty is not in the possession of the governments, therefore it cannot be transferred from them to the general government; so that in no point of view of this definition can we discover that it applies to the present system.

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In the exercise of its powers will be insured the exercise of their powers to the state governments; it will insure peace and stability to them; their strength will increase with its strength; their growth will extend with its growth.

Indeed, narrow minds—and some such there are in every government—narrow minds and intriguing spirits will be active in sowing dissensions 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 North Carolina, the executive power is blended with the legislative. Turn to their constitutions, and see in how many instances.

In North Carolina, the Senate and House of Commons elect the governor himself: they likewise elect seven persons to be a council of state, to advise the governor in the execution of his office. Here we find the whole executive department under the nomination of the legislature, at least the most important part of it.

In South Carolina, the legislature appoints the governor and commander-in-chief, Edition: current; Page: [261] 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 people—I mean the President of the United States. They can make no treaty without his concurrence. The same observation applies in the appointment of officers. Every officer must be nominated solely and exclusively by the President.

Much has been said on the subject of treaties; and this power is denominated a blending of the legislative and executive powers in the Senate. It is but justice to represent the favorable, as well as unfavorable, side of a question, and from thence determine whether the objectionable parts are of a sufficient weight to induce a rejection of this Constitution.

There is no doubt, sir, but, under this Constitution, treaties will become the supreme law of the land; nor is there any doubt but the Senate and President possess the power of making them. But though the treaties are to have the force of laws, they are in some important respects very different from other acts of legislation. In making laws, our own consent alone is necessary. In forming treaties, the concurrence of another power becomes necessary. Treaties, sir, are truly contracts, or compacts, between the different states, nations, or princes, who find it convenient or necessary to enter into them. Some gentlemen are of opinion that the power Edition: current; Page: [262] of making treaties should have been placed in the legislature at large; there are, however, reasons that operate with great force on the other side. Treaties are frequently (especially in time of war) of such a nature, that it would be extremely improper to publish them, or even commit the secret of their negotiation to any great number of persons. For my part, I am not an advocate for secrecy in transactions relating to the public; not generally even in forming treaties, because I think that the history of the diplomatic corps will evince, even in that great department of politics, the truth of an old adage, that “honesty is the best policy,” and this is the conduct of the most able negotiators; yet sometimes secrecy may be necessary, and therefore it becomes an argument against committing the knowledge of these transactions to too many persons. But in their nature treaties originate differently from laws. They are made by equal parties, and each side has half of the bargain to make; they will be made between us and powers at the distance of three thousand miles. A long series of negotiation will frequently precede them; and can it be the opinion of these gentlemen that the legislature should be in session during this whole time? It well deserves to be remarked, that, though the House of Representatives possess no active part in making treaties, yet their legislative authority will be found to have strong restraining influences upon both President and Senate. In England, if the king and his ministers find themselves, during their negotiation, to be embarrassed because an existing law is not repealed, or a new law is not enacted, they give notice to the legislature of their situation, and inform them that it will be necessary, before the treaty can operate, that some law be repealed, or some be made. And will not the same thing take place here? Shall less prudence, less caution, less moderation, take place among those who negotiate treaties for the United States, than among those who negotiate them for the other nations of the earth? And let it be attended to, that, even in the making of treaties, the states are immediately represented, and the people mediately represented; two of the constituent parts of government must concur in making them. Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people.

I might suggest other reasons, to add weight to what has already been offered; but I believe it is not necessary; yet let me, however, add one Edition: current; Page: [263] 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, country, or state.

A defect in minute information has not certainly been an objection in the management of the business of the United States; but the want of enlarged ideas has hitherto been chargeable on our councils; yet, even with regard to minute knowledge, I do not conceive it impossible to find eight characters that may be very well informed as to the situation, interests, and views, of every part of this state, and who may have a concomitant interest with their fellow-citizens; they could not materially injure others without affecting their own fortunes.

I did say that, in order to obtain that enlarged information in our representatives, a large district for election would be more proper than a small one. When I speak of large districts, it is not agreeably to the idea entertained by the honorable member from Fayette, (Mr. Smilie,) who tells you that elections for large districts must be ill attended, because the people will not choose to go very far on this business. It is not meant, sir, by me, that the votes should be taken at one place; no, sir; the elections may be held through this state in the same manner as elections for members of the General Assembly; and this may be done, too, without any additional inconvenience or expense.

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If it could be effected, all the people of the same society ought to meet in one place, and communicate freely with each other on the great business of representation. Though this cannot be done in fact, yet we find that it is the most favorite and constitutional idea. It is supported by this principle too, that every member is the representative of the whole community, and not of a particular part. The larger, therefore, the district is, the greater is the probability of selecting wise and virtuous characters, and the more agreeable it is to the constitutional principle of representation.

As to the objection that the House of Representatives may be bribed by the Senate, I confess I do not see that bribery is an objection against this system; it is rather an objection against human nature. I am afraid that bribes in every government may be offered and received; but let me ask of the gentlemen who urge this objection to point out where any power is given to bribe under this Constitution. Every species of influence is guarded against as much as possible. Can the Senate procure money to effect such design? All public moneys must be disposed of by law, and it is necessary that the House of Representatives originate such law. Before the money can be got out of the treasury, it must be appropriated by law. If the legislature had the effrontery to set aside three or four hundred thousand pounds for this purpose, and the people would tamely suffer it, I grant it might be done; and in Pennsylvania the legislature might do the same; for, by a law, and that conformably to the Constitution, they might divide among themselves what portion of the public money they pleased. I shall just remark, sir, that the objections which have repeatedly been made with regard to “the number of representatives being too small, and that they may possibly be made smaller; that the districts are too large, and not within the reach of the people; and that the House of Representatives may be bribed by the Senate,” come with an uncommon degree of impropriety from those who would refer us back to the Articles of Confederation; for, under these, the representation of this state cannot exceed seven members, and may consist of only two; and these are wholly without the reach or control of the people. Is there not also greater danger that the majority of such a body might be more easily bribed than the majority of one not only more numerous, but checked by a division of two or three distinct and independent parts? The danger is certainly better guarded against in the proposed system than in any other yet devised.

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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 that the states ought to be represented according to their importance; but in this system there is a considerable improvement; for the true principle of representation is carried into the House of Representatives, and into the choice of the President; and without the assistance of one or the other of these, the Senate is inactive, and can do neither good nor evil.

It is repeated, again and again, by the honorable gentleman, that “the power over elections, which is given to the general government in this system, is a dangerous power.” I must own I feel, myself, surprised that an objection of this kind should be persisted in, after what has been said by the honorable colleague in reply. I think it has appeared, by a minute investigation of the subject, that it would have been not only unwise, but highly improper, in the late Convention, to have omitted this clause, or given less power than it does over elections. Such powers, sir, are enjoyed by every state government in the United States. In some they are of a much greater magnitude; and why should this be the only one deprived of them? Ought not these, as well as every other legislative body, to have the power of judging of the qualifications of its own members? “The times, places, and manner of holding elections for representatives, may be altered by Congress.” This power, sir, has been shown to be necessary, not only on some particular occasions, but even to the very existence of the federal government. I have heard 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 Edition: current; Page: [266] regulating the time, place, or manner of holding elections, is exercised by the Congress, it will be to correct the improper regulations of a particular state.

I now proceed to the second article of this Constitution, which relates to the executive department.

I find, sir, from an attention to the arguments used by the gentlemen on the other side of the house, that there are but few exceptions taken to this part of the system. I shall take notice of them, and afterwards point out some valuable qualifications, which I think this part possesses in an eminent degree.

The objection against the powers of the President is not that they are too many or too great; but, to state it in the gentlemen’s own language, they are so trifling, that the President is no more than the tool of the Senate.

Now, sir, I do not apprehend this to be the case, because I see that he may do a great many things independently of the Senate; and, with respect to the executive powers of government in which the Senate participate, they can do nothing without him. Now, I would ask, which is most likely to be the tool of the other? Clearly, sir, he holds the helm, and the vessel can proceed neither in one direction nor another, without his concurrence. It was expected by many, that the cry would have been against the powers of the President as a monarchical power; indeed, the echo of such sound was heard some time before the rise of the late Convention. There were men, at that time, determined to make an attack upon whatever system should be proposed; but they mistook the point of direction. Had the President possessed those powers, which the opposition on this floor are willing to consign him, of making treaties and appointing officers, with the advice of a council of state, the clamor would have been, that the House of Representatives and the Senate were the tools of the monarch. This, sir, is but conjecture; but I leave it to those who are acquainted with the current of the politics pursued by the enemies of this system, to determine whether it is a reasonable conjecture or not.

The manner of appointing the President of the United States, I find, is not objected to; therefore I shall say little on that point. But I think it well worth while to state to this house how little the difficulties, even in the most difficult part of this system, appear to have been noticed by the honorable gentlemen in opposition. The Convention, sir, were perplexed with Edition: current; Page: [267] no part of this plan so much as with the mode of choosing the President of the United States. For my own part, I think the most unexceptionable mode, next after the one prescribed in this Constitution, would be that practised by the Eastern States and the state of New York; yet, if gentlemen object that an eighth part of our country forms a district too large for election, how much more would they object, if it was extended to the whole Union! On this subject, it was the opinion of a great majority in Convention, that the thing was impracticable; other embarrassments presented themselves.

Was the President to be appointed by the legislature? Was he to continue a certain time in office, and afterwards was he to become ineligible?

To have the executive officers dependent upon the legislative, would certainly be a violation of that principle, so necessary to preserve the freedom of republics, that the legislative and executive powers should be separate and independent. Would it have been proper that he should be appointed by the Senate? I apprehend that still stronger objections could be urged against that: cabal—intrigue—corruption—every thing bad, would have been the necessary concomitant of every election.

To avoid the inconveniences already enumerated, and many others that might be suggested, the mode before us was adopted. By it we avoid corruption; and we are little exposed to the lesser evils of party intrigue; and when the government shall be organized, proper care will undoubtedly be taken to counteract influence even of that nature. The Constitution, with the same view, has directed, that the day on which the electors shall give their votes shall be the same throughout the United States. I flatter myself the experiment will be a happy one for our country.

The choice of this officer is brought as nearly home to the people as is practicable. With the approbation of the state legislatures, the people may elect with only one remove; for “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in Congress.” Under this regulation, it will not be easy to corrupt the electors, and there will be little time or opportunity for tumult or intrigue. This, sir, will not be like the elections of a Polish diet, begun in noise and ending in bloodshed.

If gentlemen will look into this article, and read for themselves, they Edition: current; Page: [268] will find that there is no well-grounded reason to suspect the President will be the tool of the Senate. “The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States. He may require the opinion, in writing, of the principal officers in each of the executive departments, upon any subject relative to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States.” Must the President, after all, be called the tool of the Senate? I do not mean to insinuate that he has more powers than he ought to have, but merely to declare that they are of such a nature as to place him above expression of contempt.

There is another power of no small magnitude intrusted to this officer. “He shall take care that the laws be faithfully executed.”

I apprehend that, in the administration of this 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 exercised. We are happily removed from the vortex of European politics, and the fewer and the more simple our negotiations with european powers, the better they will be. If such be the case, it will be but once in a number of years that a single treaty will come before the Senate. I think, therefore, that on this account it will be unnecessary to sit constantly. With regard to the trial of impeachments, I hope it is what will seldom happen. In this observation, the experience of the ten last years supports me. Now, there is only left the power of concurring in the appointment of officers; but care is taken, in this Constitution, that this branch of business may be done without their presence. The president is authorized to fill up all vacancies that may happen, during the recess of the Senate, by granting commissions, which shall expire at the end of their next session; so that, on the whole, the Senate need not sit longer than the House of Representatives, Edition: current; Page: [269] at the public expense; and no doubt, if apprehensions are entertained of the Senate, the House of Representatives will not provide pay for them one day longer than is necessary. But what (it will be asked) is this great power of the President? He can fill the offices only by temporary appointments. True; but every person knows the advantage of being once introduced into an office; it is often of more importance than the highest recommendation.

Having now done with the legislative and executive branches of this government, I shall just remark, that, upon the whole question of the executive, it appears that the gentlemen in opposition state nothing as exceptionable but the deficiency of powers in the President; but rather seem to allow some degree of political merit in this department of government.

I now proceed to the judicial department; and here, Mr. President, I meet an objection, I confess, I had not expected; and it seems it did not occur to the honorable gentleman (Mr. Findley) who made it until a few days ago.

He alleges that the judges, under this Constitution, are not rendered sufficiently independent, because they may hold other offices; and though they may be independent as judges, yet their other office may depend upon the legislature. I confess, sir, this objection appears to me to be a little wire-drawn. In the first place, the legislature can appoint to no office; therefore, the dependence could not be on them for the office, but rather on the President and Senate; but then these cannot add the salary, because no money can be appropriated but in consequence of a law of the United States. No sinecure can be bestowed on any judge but by the concurrence of the whole legislature and the President; and I do not think this an event that will probably happen.

It is true that there is a provision made in the Constitution of Pennsylvania, that the judges shall 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 those services to their country for which they are found eminently qualified. New York, far from restricting their chancellor, or judges of the Supreme Court, from a seat in Edition: current; Page: [270] Congress, expressly provide for sending them there on extraordinary occasions. In Connecticut, the judges are not precluded from enjoying other offices. Judges from many states have sat in Congress. Now, it is not to be expected that eleven or twelve states are to change their sentiments and practice, on this subject, to accommodate themselves to Pennsylvania.

It is again alleged, against this system, that the powers of the judges are too extensive; but I will not trouble you, sir, with a repetition of what I had the honor of delivering the other day. I hope the result of those arguments gave satisfaction, and proved that the judicial were commensurate with the legislative powers; that they went no farther, and that they ought to go so far.

The laws of Congress being made for the Union, no particular state can be alone affected; and as they are to provide for the general purposes of the Union, so ought they to have the means of making the provisions effectual over all that country included within the Union.

Eodem die, 1787, p.m.—Mr. Wilson. I shall now proceed, Mr. President, to notice the remainder of the objections that have been suggested by the honorable gentlemen who oppose the system now before you.

We have been told, sir, by the honorable member from Fayette, (Mr. Smilie,) “that the trial by jury was intended to be given up, and the civil law was intended to be introduced into its place, in civil cases.”

Before a sentiment of this kind was hazarded, I think, sir, the gentleman ought to be prepared with better proof in its support than any he has yet attempted to produce. It is a charge, sir, not only unwarrantable, but cruel: the idea of such a thing, I believe, never entered into the mind of a single member of that Convention; and 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 excellences are so well understood, it may not be necessary to be very prolix in Edition: current; Page: [271] pointing them out. For my part, I shall confine myself to a few observations in reply to the objections that have been suggested.

The member from Fayette (Mr. Smilie) has labored to infer that, under the Articles of Confederation, the Congress possessed no appellate jurisdiction; but this being decided against him by the words of that instrument, by which is granted to Congress the power of “establishing courts for receiving, and determining finally, appeals in all cases of capture,” he next attempts a distinction, and allows the power of appealing from the decisions of the judges, but not from the verdict of a jury; but this is determined against him also by the practice of the states; for, in every instance which has occurred, this power has been claimed by Congress, and exercised by the Courts of Appeals. But what would be the consequence of allowing the doctrine for which he contends? Would it not be in the power of a jury, by their verdict, to involve the whole Union in a war? They may condemn the property of a neutral, or otherwise infringe the law of nations; in this case, ought their verdict to be without revisal? Nothing can be inferred from this to prove that trials by jury were intended to be given up. In Massachusetts, and all the Eastern States, their causes are tried by juries, though they acknowledge the appellate jurisdiction of Congress.

I think I am not now to learn the advantages of a trial by jury. It has excellences that entitle it to a superiority over any other mode, in cases to which it is applicable.

Where jurors can be acquainted with the characters of the parties and the witnesses,—where the whole cause can be brought within their knowledge and their view,—I know no mode of investigation equal to that by a jury: they hear every thing that is alleged; they not only hear the words, but they see and mark the features of the countenance; they can judge of weight due to such testimony; and moreover, it is a cheap and expeditious manner of distributing justice. There is another advantage annexed to the trial by jury; the jurors may indeed return a mistaken or ill-founded verdict, but their errors cannot be systematical.

Let us apply these observations to the objects of the judicial department, under this Constitution. I think it has been shown, already, that they all extend beyond the bounds of any particular state; but further, a great number of the civil causes there enumerated depend either upon the Edition: current; Page: [272] law of nations, or the marine law, that is, the general law of mercantile countries. Now, sir, in such cases, I presume it will not be pretended that this mode of decision ought to be adopted; for the law with regard to them is the same here as in every other country, and ought to be administered in the same manner. There are instances in which I think it highly probable that the trial by jury will be found proper; and if it is highly probable that it will be found proper, is it not equally probable that it will be adopted? There may be causes depending between citizens of different states; and as trial by jury is known and regarded in all the states, they will certainly prefer that mode of trial before any other. The Congress will have the power of making proper regulations on this subject, but it was impossible for the Convention to have gone minutely into it; but if they could, it must have been very improper, because alterations, as I observed before, might have been necessary; and whatever the Convention might have done would have continued unaltered, unless by an alteration of the Constitution. Besides, there was another difficulty with regard to this subject. In some of the states they have courts of chancery, and other appellate jurisdictions, and those states are as attached to that mode of distributing justice as those that have none are to theirs.

I have desired, repeatedly, that honorable gentlemen, who find fault, would be good enough to point out what they deem to be an improvement. The member from Westmoreland (Mr. Findley) tells us that the trial between citizens of different states ought to be by a jury of that state in which the cause of action rose. Now, it is easy to see that, in many instances, this would be very improper and very partial; for, besides the different manner of collecting and forming juries in the several states, the plaintiff comes from another state; he comes a stranger, unknown as to his character or mode of life, while the other party is in the midst of his friends, or perhaps his dependants. Would a trial by jury, in such a case, insure justice to the stranger? But again: I would ask that gentleman whether, if a great part of his fortune was in the hands of some person in Rhode Island, he would wish that his action to recover it should be determined by a jury of that country, under its present circumstances.

The gentleman from Fayette (Mr. Smilie) says that, if the Convention found themselves embarrassed, at least they might have done thus much—they Edition: current; Page: [273] 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 reëxamined, and the verdict of the jury sometimes is set aside; but I think, in all cases where the cause has come originally before a jury, that the last examination ought to be before a jury likewise.

The power of having appellate jurisdiction, as to facts, has been insisted upon as a proof, “that the Convention intended to give up the trial by jury in civil cases, and to introduce the civil law.” I have already declared my own opinion on this point, and have shown not merely that it is founded on reason and authority;—the express declaration of Congress (Journals of Congress, March 6, 1779) is to the same purpose. They insist upon this power, as requisite to preserve the peace of the Union; certainly, therefore, it ought always to be possessed by the head of the confederacy. We are told, as an additional proof, that the trial by jury was intended to be given up; “that appeals are unknown to the common law; that the term is a civil-law term, and with it the civil law is intended to be introduced.” I confess I was a good deal surprised at this observation being made; for Blackstone, in the very volume which the honorable member (Mr. Smilie) had in his hand, and read us several extracts from, has a chapter entitled “Of Proceeding in the Nature of Appeals,”—and in that chapter says, that the principal method of redress for erroneous judgments, in the king’s courts of record, is by writ of error to some superior “court of appeal.” (3 Blackstone, 406.) Now, it is well known that his book is a commentary upon the common law. Here, then, is a strong refutation of the assertion, “that appeals are unknown to the common law.”

I think these were all the circumstances adduced to show the truth of Edition: current; Page: [274] the assertion, that, in this Constitution, the trial by jury was intended to be given up by the late Convention in framing it. Has the assertion been proved? I say not; and the allegations offered, if they apply at all, apply in a contrary direction. I am glad that this objection has been stated, because it is a subject upon which the enemies of this Constitution have much insisted. We have now had an opportunity of investigating it fully; and the result is, that there is no foundation for the charge, but it must proceed from ignorance, or something worse.

I go on to another objection which has been taken to this system: “that the expense of the general government and of the state governments will be too great, and that the citizens will not be able to support them.” If the state governments are to continue as cumbersome and expensive as they have hitherto been, I confess it would be distressing to add to their expenses, and yet it might be necessary; but I think I can draw a different conclusion on this subject, from more conjectures than one. The additional revenue to be raised by a general government will be more than sufficient for additional expense; and a great part of that revenue may be so contrived as not to be taken from the citizens of this country; for I am not of opinion that the consumer always pays the impost that is laid on imported articles; it is paid sometimes by the importer, and sometimes by the foreign merchant who sends them to us. Had a duty of this nature been laid at the time of the peace, the greatest part of it would have been the contribution of foreigners. Besides, whatever is paid by the citizens is a voluntary payment.

I think, sir, it would be very easy and laudable to lessen the expenses of the state governments. I have been told (and perhaps it is not very far from the truth) that there are two thousand members of assembly in the several states. The business of revenue is done in consequence of requisitions from Congress; and whether it is furnished or not, it commonly becomes a subject of discussion. Now, when this business is executed by the legislature of the United States, I leave it to those who are acquainted with the expense of long and frequent sessions of Assembly, to determine the great saving that will take place. Let me appeal to the citizens of Pennsylvania, how much time is taken up in this state every year, if not every session, in providing for the payment of an amazing interest due on her funded debt. There will be many sources of revenue, and many opportunities for Edition: current; Page: [275] economy, when the business of finance shall be administered under one government: the funds will be more productive, and the taxes, in all probability, less burdensome, than they are now.

I proceed to another objection that is taken against the power, given to Congress, of raising and keeping up standing armies. I confess I have been surprised that this objection was ever made; but I am more so that it is still repeated and insisted upon. I have taken some pains to inform myself how the other governments of the world stand with regard to this power, and the result of my inquiry is, that there is not one which has not the power of raising and keeping up standing armies. A government without the power of defence! it is a solecism.

I well recollect the principle insisted upon by the patriotic body in Great Britain; it is, that, in time of peace, a standing army ought not to be kept up without the consent of Parliament. Their only apprehension appears to be, that it might be dangerous, were the army kept up without the concurrence of the representatives of the people. Sir, we are not in the millennium. Wars may happen; and when they do happen, who is to have the power of collecting and appointing the force, then become immediately and indispensably necessary?

It is not declared, in this Constitution, that the Congress shall raise and support armies. No, sir: if they are not driven to it by necessity, why should we suppose they would do it by choice, any more than the representatives of the same citizens in the state legislatures? For we must not lose sight of the great principle upon which this work is founded. The authority here given to the general government flows from the same source as that placed in the legislatures of the several states.

It may be frequently necessary to keep up standing armies in time of peace. The present Congress have experienced the necessity, and seven hundred troops are just as much a standing army as seventy thousand. The principle which sustains them is precisely the same. They may go further, and raise an army, without communicating to the public the 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 Edition: current; Page: [276] quarter; they were formed by the correspondents of state officers, (to whom an allusion was made on a former day,) and from one end to the other of the continent, we walked on ashes, concealing fire beneath our feet; and ought Congress to be deprived of power to prepare for the defence and safety of our country? Ought they to be restricted from arming, until they divulge the motive which induced them to arm? I believe the power of raising and keeping up an army, in time of peace, is essential to every government. No government can secure its citizens against dangers, internal and external, without possessing it, and sometimes carrying it into execution. I confess it is a power in the exercise of which all wise and moderate governments will be as prudent and 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 a uniformity of arms, accoutrements, and discipline, are no more than a mob in a camp; that, in the field, instead of assisting, they interfere with one another. If a soldier drops his musket, and his companion, unfurnished with one, takes it up, it is of no service, because his cartridges do not fit it. By means of this system, a uniformity of arms and discipline will prevail throughout the United States.

I really expected that, for this part of the system at least, the framers of it would have received plaudits instead of censures, as they here discover a strong anxiety to have this body put upon an effective footing, and thereby, in a great measure, to supersede the necessity of raising or keeping up standing armies.

The militia formed under this system, and trained by the several states, will be such a bulwark of internal strength, as to prevent the attacks of Edition: current; Page: [277] foreign enemies. I have been told that, about the year 1744, an attack was intended by France upon Massachusetts Bay, but was given up on reading the militia law of the province.

If a single state could deter an enemy from such attempts, what influence will the proposed arrangement have upon the different powers of Europe?

In every point of view, this regulation is calculated to produce good effects. How powerful and respectable must the body of militia appear under general and uniform regulations! How disjointed, weak, and inefficient are they at present! I appeal to military experience for the truth of my observations.

The next objection, sir, is a serious one indeed; it was made by the honorable gentleman from Fayette, (Mr. Smilie.) “The Convention knew this was not a free government; otherwise, they would not have asked the powers of the purse and sword.” I would beg to ask the gentleman what free government he knows that has not the powers of both? There was, indeed, a government under which we unfortunately were for a few years past, that had them not; but it does not now exist. A government without these powers is one of the improvements with which opposition wish to astonish mankind.

Have not the freest governments those powers? And are they not in the fullest exercise of them? This is a thing so clear, that really it is impossible to find facts or reasons more clear, in order to illustrate it. Can we create a government without the power to act? How can it act without the assistance of men? And how are men to be procured without being paid for their services? Is not the one power the consequence of the other?

We are told,—and it is the last and heaviest charge,—“that this government is an aristocracy, and was intended so to be by the late Convention;” and we are told (the truth of which is not disputed) that an aristocratical government is incompatible with freedom. I hope, before this charge is believed, some stronger reasons will be given in support of it than any that have yet been produced.

The late Convention were assembled to devise some plan for the security, safety, and happiness of the people of the United States. If they have devised a plan that robs them of their power, and constitutes an aristocracy, they are the parricides of their country, and ought to be punished as such. What part of this system is it that warrants the charge?

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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 every thing they held near and dear to them?

Far, far other is the genius of this system. I have had already the honor of mentioning its general nature; but I will repeat it, sir. In its principle it is purely democratical; but its parts are calculated in such manner as to obtain those advantages, also, which are peculiar to the other forms of government in other countries. By appointing a single magistrate, we secure strength, vigor, energy, and responsibility 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, 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, Edition: current; Page: [279] 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; and 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 consequence? Let the farmer say, he whose produce remains unasked for; nor can he find a single market for its consumption, though his fields are blessed with luxuriant abundance. Let the manufacturer, and let the mechanic, say; they can feel, and tell their feelings. Go along the wharves of Philadelphia, and observe the melancholy silence that reigns. I appeal not to those who enjoy places and abundance under the present government; they may well dilate upon the easy and happy situation of our country. Let the merchants tell you what is our commerce; let them say what has been their situation since the return of peace—an era which they might have expected would furnish additional sources to our trade, and a continuance, and even an increase, to their fortunes. Have these ideas been realized? or do they not lose some of their capital in every adventure, and continue the unprofitable trade from year to year, subsisting under the hopes of happier times under an efficient general government? The ungainful trade carried on by our merchants has a baneful influence on the interests of the manufacturer, the mechanic, and the farmer; and these, I believe, are the chief interests of the people of the United States.

I will go further. Is there now a government among us that can do a single act that a national government ought to do? Is there any power of Edition: current; Page: [280] the United States that can command a single shilling? This is a plain and a home question.

Congress may recommend; they can do no more: they may require; but they must not proceed one step further. If things are bad now,—and that they are not worse is only owing to hopes of improvement or change in the system,—will they become better when those hopes are disappointed? We have been told, by honorable gentlemen on this floor, (Mr. Smilie, Mr. Findley, and Mr. Whitehill,) that it is improper to urge this kind of argument in favor of a new system of government, or against the old one: unfortunately, sir, these things are too severely felt to be omitted; the people feel them; they pervade all classes of citizens, and every situation from New Hampshire to Georgia: the argument of necessity is the patriot’s defence, as well as the tyrant’s plea.

Is it likely, sir, that, if this system of government is rejected, a better will be framed and adopted? I will not expatiate on this subject; but I believe many reasons will suggest themselves to prove that such expectation would be illusory. If a better could be obtained at a future time, is there any thing essentially wrong in this? I go further. Is there any thing wrong that cannot be amended more easily by the mode pointed out in the system itself, than could be done by calling convention after convention, before the organization of the government? Let us now turn to the consequences that will result if we assent to and ratify the instrument before you. I shall trace them as concisely as I can, because I have trespassed already too long on the patience and indulgence of the house.

I stated, on a former occasion, one important advantage; by adopting this system, we become a nation; at present, we are not one. Can we perform a single national act? Can we do any thing to procure us dignity, or to preserve peace and tranquillity? Can we relieve the distress of our citizens? Can we provide for their welfare or happiness? The powers of our government are mere sound. If we offer to treat with a nation, we receive this humiliating answer: “You cannot, in propriety of language, make a treaty, because you have no power to execute it.” Can we borrow money? There are too many examples of unfortunate creditors existing, both on this and the other side of the Atlantic, to expect success from this expedient. But could we borrow money, we cannot command a fund, to enable us to pay either the principal or interest; for, in instances where our Edition: current; Page: [281] friends have advanced the principal, they have been obliged to advance the interest also, in order to prevent the principal from being annihilated in their hands by depreciation. Can we raise an army? The prospect of a war is highly probable. The accounts we receive, by every vessel from Europe, mention that the highest exertions are making in the ports and arsenals of the greatest maritime powers. But whatever the consequence may be, are we to lie supine? We know we are unable, under the Articles of Confederation, to exert ourselves; and shall we continue so, until a stroke be made on our commerce, or we see the debarkation of a hostile army on our unprotected shores? Who will guaranty that our property will not be laid waste, that our towns will not be put under contribution, by a small naval force, and subjected to all the horror and devastation of war? May not this be done without opposition, at least effectual opposition, in the present situation of our country? There may be safety over the Appalachian Mountains, but there can be none on our sea-coast. With what propriety can we hope our flag will be respected, while we have not a single gun to fire in its defence?

Can we expect to make internal improvement, or accomplish any of those great national objects which I formerly alluded to, when we cannot find money to remove a single rock out of a river?

This system, sir, will at least make us a nation, and put it in the power of the Union to act as such. We shall be considered as such by every nation in the world. We shall regain the confidence of our citizens, and command the respect of others.

As we shall become a nation, I trust that we shall also form a national character, and that this character will be adapted to the principles and genius of our system of government: as yet we possess none; our language, manners, customs, habits, and dress, depend too much upon those of other countries. Every nation, in these respects, should possess originality; there are not, on any part of the globe, finer qualities for forming a national character, than those possessed by the children of America. Activity, perseverance, industry, laudable emulation, docility in acquiring information, firmness in adversity, and patience and magnanimity under the greatest hardships;—from these materials, what a respectable national character may be raised! In addition to this character I think there is strong reason to believe that America may take the lead in literary improvements and Edition: current; Page: [282] national importance. This is a subject which, I confess, I have spent much pleasing time in considering. That language, sir, which shall become most generally known in the civilized world, will impart great importance over the nation that shall use it. The language of the United States will, in future times, be diffused over a greater extent of country than any other that we know. The French, indeed, have made laudable attempts toward establishing a universal language; but, beyond the boundaries of France, even the French language is not spoken by one in a thousand. Besides the freedom of our country, the great improvements she has made, and will make, in the science of government, will induce the patriots and literati of every nation to read and understand our writings on that subject; and hence it is not improbable that she will take the lead in political knowledge.

If we adopt this system of government, I think we may promise security, stability, and tranquillity, to the governments of the different states. They would not be exposed to the danger of competition on questions of territory, or any other that have heretofore disturbed them. A tribunal is here found to decide, justly and quietly, any intefering claim; and now is accomplished what the great mind of Henry IV.18 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 Sully19 that this was the favorite pursuit of that good king during the last years of his life; and he would probably have carried it into execution, had not the dagger of an assassin deprived the world of his valuable life. I have, with pleasing emotion, seen the wisdom and beneficence of a less efficient power under the Articles of Confederation, in the determination of the controversy between the states of Pennsylvania and Connecticut; but I have lamented that the authority of Congress did not extend to extinguish, entirely, the spark which has kindled a dangerous flame in the district of Wyoming.

Let gentlemen turn their attention to the amazing consequences which Edition: current; Page: [283] this principle will have in this extended country. The several states cannot war with each other; the general government is the great arbiter in contentions between them; the whole force of the Union can be called forth to reduce an aggressor to reason. What a happy exchange for the disjointed, contentious state sovereignties!

The adoption of this system will also secure us from danger, and procure us advantages from foreign nations. This, in our situation, is of great consequence. We are still an inviting object to one European power at least; and, if we cannot defend ourselves, the temptation may become too alluring to be resisted. I do not mean that, with an efficient government, we should mix with the commotions of Europe. No, sir, we are happily removed from them, and are not obliged to throw ourselves into the scale with any. This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war. I cannot forbear, on this occasion, the pleasure of mentioning to you the sentiments of the great and benevolent man, whose works I have already quoted on another subject. Mr. Necker has addressed this country in language important and applicable in the strictest degree to its situation and to the present subject. Speaking of war, and the greatest caution that all nations ought to use in order to avoid its calamities,—“And you, rising nation,” says he, “whom generous efforts have freed from the yoke of Europe! let the universe be struck with still greater reverence at the sight of the privileges you have acquired, by seeing you continually employed for the public 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 showing that, when left to its own feelings, it is still capable of those virtues that maintain public order, and of that prudence which insures public tranquillity.”

Permit me to offer one consideration more, that ought to induce our acceptance Edition: current; Page: [284] 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, but will draw from Europe many worthy characters, who pant for the enjoyment of freedom. It will induce princes, in order to preserve their subjects, to restore to them a portion of that liberty of which they have for many ages been deprived. It will be subservient to the great designs of Providence with regard to this globe—the multiplication of mankind, their improvement in knowledge, and their advancement in happiness.

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Oration Delivered on the Fourth of July 1788, at the Procession Formed at Philadelphia to Celebrate the Adoption of the Constitution of the United States.

My friends and fellow citizens,

Your candid and generous indulgence I may well bespeak, for many reasons. I shall mention but one. While I express it, I feel it in all its force. My abilities are unequal—abilities far superiour to mine would be unequal—to the occasion on which I have the honour of being called to address you.

A people free and enlightened, establishing and ratifying a system of government, which they have previously considered, examined, and approved! This is the spectacle, which we are assembled to celebrate; and it is the most dignified one that has yet appeared on our globe. Numerous and splendid have been the triumphs of conquerors. But from what causes have they originated?—Of what consequences have they been productive? They have generally begun in ambition: they have generally ended in tyranny. But nothing tyrannical can participate of dignity: and to freedom’s eye, Sesostris1 himself appears contemptible, even when he treads on the necks of kings.

The senators of Rome, seated on their curule chairs, and surrounded with all their official lustre, were an object much more respectable: and we view, without displeasure, the admiration of those untutored savages, who considered them as so many gods upon earth. But who were those senators? They were only a part of a society: they were vested only with inferiour powers.

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What is the object exhibited to our contemplation? A whole people exercising its first and greatest power—performing an act of sovereignty, original and unlimited!

The scene before us is unexampled as well as magnificent. The greatest part of governments have been the deformed offspring of force and fear. With these we deign not comparison. But there have been others which have formed bold pretensions to higher regard. You have heard of Sparta, of Athens, and of Rome; you have heard of their admired constitutions, and of their high-prized freedom. In fancied right of these, they conceived themselves to be elevated above the rest of the human race, whom they marked with the degrading title of barbarians. But did they, in all their pomp and pride of liberty, ever furnish, to the astonished world, an exhibition similar to that which we now contemplate? Were their constitutions framed by those, who were appointed for that purpose, by the people? After they were framed, were they submitted to the consideration of the people? Had the people an opportunity of expressing their sentiments concerning them? Were they to stand or fall by the people’s approving or rejecting vote? To all these questions, attentive and impartial history obliges us to answer in the negative. The people were either unfit to be trusted, or their lawgivers were too ambitious to trust them.

The far-famed establishment of Lycurgus2 was introduced by deception and fraud. Under the specious pretence of consulting the oracle concerning his laws, he prevailed on the Spartans to make a temporary experiment of them during his absence, and to swear that they would suffer no alteration of them till his return. Taking a disingenuous advantage of their scrupulous regard for their oaths, he prevented his return by a voluntary death, and, in this manner, endeavoured to secure a proud immortality to his system.

Even Solon3—the mild and moderating Solon—far from considering himself as employed only to propose such regulations as he should think Edition: current; Page: [287] best calculated for promoting the happiness of the commonwealth, made and promulgated his laws with all the haughty airs of absolute power. On more occasions than one, we find him boasting, with much selfcomplacency, of his extreme forbearance and condescension, because he did not establish a despotism in his own favour, and because he did not reduce his equals to the humiliating condition of his slaves.

Did Numa4 submit his institutions to the good sense and free investigation of Rome? They were received in precious communications from the goddess Egeria,5 with whose presence and regard he was supremely favoured; and they were imposed on the easy faith of the citizens, as the dictates of an inspiration that was divine.

Such, my fellow citizens, was the origin of the most splendid establishments that have been hitherto known; and such were the arts, to which they owed their introduction and success.

What a flattering contrast arises from a retrospect of the scenes which we now commemorate! Delegates were appointed to deliberate and propose. They met and performed their delegated trust. The result of their deliberations was laid before the people. It was discussed and scrutinized in the fullest, freest, and severest manner—by speaking, by writing, and by printing—by individuals and by publick bodies—by its friends and by its enemies. What was the issue? Most favourable and most glorious to the system. In state after state, at time after time, it was ratified—in some states unanimously—on the whole, by a large and very respectable majority.

It would be improper now to examine its qualities. A decent respect for those who have accepted it, will lead us to presume that it is worthy of their acceptance. The deliberate ratifications, which have taken place, at once recommend the system, and the people by whom it has been ratified.

But why, methinks I hear some one say—why is so much exultation displayed in celebrating this event? We are prepared to give the reasons of our joy. We rejoice, because, under this constitution, we hope to see just government, and to enjoy the blessings that walk in its train.

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Let us begin with Peace—the mild and modest harbinger of felicity! How seldom does the amiable wanderer choose, for her permanent residence, the habitations of men! In their systems, she sees too many arrangements, civil and ecclesiastical, inconsistent with the calmness and benignity of her temper. In the old world, how many millions of men do we behold, unprofitable to society, burthensome to industry, the props of establishments that deserve not to be supported, the causes of distrust in the times of peace, and the instruments of destruction in the times of war? Why are they not employed in cultivating useful arts, and in forwarding publick improvements? Let us indulge the pleasing expectation, that such will be the operation of government in the United States. Why may we not hope, that, disentangled from the intrigues and jealousies of European politicks, and unmolested with the alarm and solicitude to which these intrigues and jealousies give birth, our counsels will be directed to the encouragement, and our strength will be exerted in the cultivation, of all the arts of peace?

Of these, the first is agriculture. This is true in all countries: in the United States, its truth is of peculiar importance. The subsistence of man, the materials of manufactures, the articles of commerce—all spring originally from the soil. On agriculture, therefore, the wealth of nations is founded. Whether we consult the observations that reason will suggest, or attend to the information that history will give, we shall, in each case, be satisfied of the influence of government, good or bad, upon the state of agriculture. In a government, whose maxims are those of oppression, property is insecure. It is given, it is taken away, by caprice. Where there is no security for property, there is no encouragement for industry. Without industry, the richer the soil, the more it abounds with weeds. The evidence of history warrants the truth of these general remarks. Attend to Greece; and compare her agriculture in ancient and in modern times. Then, smiling harvests bore testimony to the bountiful boons of liberty. Now, the very earth languishes under oppression. View the Campania of Rome. How melancholy the prospect! Whichever way you turn your afflicted eyes, scenes of desolation crowd before them. Waste and barrenness appear around you in all their hideous forms. What is the reason? With double tyranny the land is cursed. Open the classick page: you trace, in chaste description, the beautiful reverse of every thing you have seen. Whence Edition: current; Page: [289] proceeds the difference? When that description was made, the force of liberty pervaded the soil.

But is agriculture the only art, which feels the influence of government? Over manufactures and commerce its power is equally prevalent. There the same causes operate—and there they produce the same effects. The industrious village, the busy city, the crowded port—all these are the gifts of liberty; and without a good government, liberty cannot exist.

These are advantages, but these are not all the advantages, that result from a system of good government.—Agriculture, manufactures, and commerce will ensure to us plenty, convenience, and elegance. But is there not something still wanting to finish the man? Are internal virtues and accomplishments less estimable, or less attracting than external arts and ornaments? Is the operation of government less powerful upon the former than upon the latter? By no means. Upon this as upon a preceding topick, reason and history will concur in their information and advice. In a serene mind, the sciences and the virtues love to dwell. But can the mind of a man be serene, when the property, liberty, subsistence of himself, and of those for whom he feels more than he feels for himself, depend on a tyrant’s nod. If the dispirited subject of oppression can, with difficulty, exert his enfeebled faculties, so far as to provide, on the incessant demands of nature, food just enough to lengthen out his wretched existence, can it be expected that, in such a state, he will experience those fine and vigorous movements of the soul, without the full and free exercise of which, science and virtue will never flourish? Look around you to the nations that now exist. View, in historick retrospect, the nations that have heretofore existed. The collected result will be, an entire conviction of these allinteresting truths—where tyranny reigns, there is the country of ignorance and vice—where good government prevails, there is the country of science and virtue. Under a good government, therefore, we must look for the accomplished man.

But shall we confine our views even here? While we wish to be accomplished men and citizens, shall we wish to be nothing more? While we perform our duty, and promote our happiness in this world, shall we bestow no regards upon the next? Does no connexion subsist between the two? From this connexion flows the most important of all the blessings of good government. But here let us pause—unassisted reason can guide us Edition: current; Page: [290] no farther—she directs us to that heaven-descended science, by which life and immortality have been brought to light.

May we not now say, that we have reason for our joy? But while we cherish the delightful emotion, let us remember those things, which are requisite to give it permanence and stability. Shall we lie supine, and look in listless langour, for those blessings and enjoyments, to which exertion is inseparably attached? If we would be happy, we must be active. The constitution and our manners must mutually support and be supported. Even on this festivity, it will not be disagreeable or incongruous to review the virtues and manners that both justify and adorn it.

Frugality and temperance first attract our attention. These simple but powerful virtues are the sole foundation, on which a good government can rest with security. They were the virtues, which nursed and educated infant Rome, and prepared her for all her greatness. But in the giddy hour of her prosperity, she spurned from her the obscure instruments, by which it was procured; and, in their place, substituted luxury and dissipation. The consequence was such as might have been expected. She preserved, for some time, a gay and flourishing appearance; but the internal health and soundness of her constitution were gone. At last, she fell a victim to the poisonous draughts, which were administered by her perfidious favourites. The fate of Rome, both in her rising and in her falling state, will be the fate of every other nation that shall follow both parts of her example.

Industry appears next among the virtues of a good citizen. Idleness is the nurse of villains. The industrious alone constitute a nation’s strength. I will not expatiate on this fruitful subject. Let one animating reflection suffice. In a well constituted commonwealth, the industry of every citizen extends beyond himself. A common interest pervades the society. Each gains from all, and all gain from each. It has often been observed, that the sciences flourish all together: the remark applies equally to the arts.

Your patriotick feelings attest the truth of what I say, when, among the virtues necessary to merit and preserve the advantages of a good government, I number a warm and uniform attachment to liberty, and to the constitution. The enemies of liberty are artful and insidious. A counterfeit steals her dress, imitates her manner, forges her signature, assumes her name. But the real name of the deceiver is licentiousness. Such is her effrontery, that she will charge liberty to her face with imposture: and she Edition: current; Page: [291] will, with shameless front, insist that herself alone is the genuine character, and that herself alone is entitled to the respect, which the genuine character deserves. With the giddy and undiscerning, on whom a deeper impression is made by dauntless impudence than by modest merit, her pretensions are often successful. She receives the honours of liberty, and liberty herself is treated as a traitor and a usurper. Generally, however, this bold impostor acts only a secondary part. Though she alone appear upon the stage, her motions are regulated by dark ambition, who sits concealed behind the curtain, and who knows that despotism, his other favourite, can always follow the success of licentiousness. Against these enemies of liberty, who act in concert, though they appear on opposite sides, the patriot citizen will keep a watchful guard.

A good constitution is the greatest blessing, which a society can enjoy. Need I infer, that it is the duty of every citizen to use his best and most unremitting endeavours for preserving it pure, healthful, and vigorous? For the accomplishment of this great purpose, the exertions of no one citizen are unimportant. Let no one, therefore, harbour, for a moment, the mean idea, that he is and can be of no value to his country: let the contrary manly impression animate his soul. Every one can, at many times, perform, to the state, useful services; and he, who steadily pursues the road of patriotism, has the most inviting prospect of being able, at some times, to perform eminent ones. Allow me to direct your attention, in a very particular manner, to a momentous part, which, by this constitution, every citizen will frequently be called to act. All those in places of power and trust will be elected either immediately by the people, or in such a manner that their appointment will depend ultimately on such immediate election. All the derivative movements of government must spring from the original movement of the people at large. If to this they give a sufficient force and a just direction, all the others will be governed by its controlling power. To speak without a metaphor, if the people, at their elections, take care to choose none but representatives that are wise and good, their representatives will take care, in their turn, to choose or appoint none but such as are wise and good also. The remark applies to every succeeding election and appointment. Thus the characters proper for publick officers will be diffused from the immediate elections of the people over the remotest parts of administration. Of what immense consequence is it, then, that this primary duty Edition: current; Page: [292] should be faithfully and skilfully discharged! On the faithful and skilful discharge of it, the publick happiness or infelicity, under this and every other constitution, must, in a very great measure, depend. For, believe me, no government, even the best, can be happily administered by ignorant or vicious men. You will forgive me, I am sure, for endeavouring to impress upon your minds, in the strongest manner, the importance of this great duty. It is the first concoction in politicks; and if an errour is committed here, it can never be corrected in any subsequent process: the certain consequence must be disease. Let no one say, that he is but a single citizen; and that his ticket will be but one in the box. That one ticket may turn the election. In battle, every soldier should consider the publick safety as depending on his single arm: at an election, every citizen should consider the publick happiness as depending on his single vote.

A progressive state is necessary to the happiness and perfection of man. Whatever attainments are already reached, attainments still higher should be pursued. Let us, therefore, strive with noble emulation. Let us suppose we have done nothing, while any thing yet remains to be done. Let us, with fervent zeal, press forward, and make unceasing advances in every thing that can support, improve, refine, or embellish society. To enter into particulars under each of these heads, and to dilate them according to their importance, would be improper at this time. A few remarks on the last of them will be congenial with the entertainments of this auspicious day.

If we give the slightest attention to nature, we shall discover, that with utility, she is curious to blend ornament. Can we imitate a better pattern? Publick exhibitions have been the favourite amusements of some of the wisest and most accomplished nations. Greece, in her most shining era, considered her games as far from being the least respectable among her publick establishments. The shows of the circus evince that, on this subject, the sentiments of Greece were fortified by those of Rome.

Publick processions may be so planned and executed as to join both the properties of nature’s rule. They may instruct and improve, while they entertain and please. They may point out the elegance or usefulness of the sciences and the arts. They may preserve the memory, and engrave the importance of great political events. They may represent, with peculiar felicity and force, the operation and effects of great political truths. The Edition: current; Page: [293] picturesque and splendid decorations around me furnish the most beautiful and most brilliant proofs, that these remarks are far from being imaginary.

The commencement of our government has been eminently glorious: let our progress in every excellence be proportionably great. It will—it must be so. What an enrapturing prospect opens on the United States! Placid husbandry walks in front, attended by the venerable plough. Lowing herds adorn our vallies: bleating flocks spread over our hills: verdant meadows, enamelled pastures, yellow harvests, bending orchards, rise in rapid succession from east to west. Plenty, with her copious horn, sits easy smiling, and, in conscious complacency, enjoys and presides over the scenes. Commerce next advances in all her splendid and embellished forms. The rivers, and lakes, and seas, are crowded with ships. Their shores are covered with cities. The cities are filled with inhabitants. The arts, decked with elegance, yet with simplicity, appear in beautiful variety, and well adjusted arrangement. Around them are diffused, in rich abundance, the necessaries, the decencies, and the ornaments of life. With heartfelt contentment, industry beholds his honest labours flourishing and secure. Peace walks serene and unalarmed over all the unmolested regions—while liberty, virtue, and religion go hand in hand, harmoniously, protecting, enlivening, and exalting all! Happy country! May thy happiness be perpetual!

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Speech on Choosing the Members of the Senate by Electors; Delivered, on the 31st December, 1789, in the Convention of Pennsylvania, Assembled for the Purpose of Reviewing, Altering, and Amending the Constitution of the State.a

Well assured I am, that the subject now before the convention must appear to honourable members, for whom I have much regard, under an aspect very different from that, in which it makes its approaches to me. Indeed it has not always appeared to myself in precisely the same light, in which I now view it. One reason may be, that I have not formerly been accustomed to contemplate it from the point of sight, at which I now stand, and from which it is my duty, enjoined by the strongest ties, to make the most attentive and accurate observations. I have considered it as a subject of speculative discussion. I have taken of it such a slight and general survey, as one person would take of the estate of another, without any expectation that it, or one similar to it, would ever become his own. On such a vague and superficial examination, I have not studied or investigated its inconveniences or defects.

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The very respectable senate of Maryland, chosen by electors, furnishes with letters of recommendation every institution, to which it bears even a distant resemblance. The moderation, the firmness, the wisdom, and the consistency, which have characterized the proceedings of that body, have been of signal benefit to the state, of whose government it forms a part; and have been the theme of just applause in her sister states. It is by no means surprising, that a favourable opinion has been entertained concerning the principles and manner of its constitution.

But now that the question relative to those points comes before us, in the discharge of our high trust, we must devest ourselves of every prepossession, which we may have hitherto indulged; and must scrutinize the subject closely, strictly, deeply, and minutely. It is incumbent upon us to weigh well, 1. Whether the qualities, that so deservedly appreciate the senate of Maryland, may not be secured to a senate, formed and organized upon very different and more eligible principles. 2. Whether the principles, upon which that senate has been formed and organized, are applicable to the plan laid before the convention.

It is admitted, on one side, that the electors should be chosen by the same persons, by whom it is contended, on the other side, that the senators should be chosen. The only question, then, is, whether an intermediate grade of persons, called electors, should be introduced between the senators and the people.

I beg leave to state to the house the light, in which this subject has appeared to me, on an examination which I may venture to style attentive; and to make some remarks, naturally resulting, in my opinion, from the views I have taken of it on different sides.

When I am called upon to appoint other persons to make laws for me, I do it because such an appointment is of absolute necessity; for the citizens Edition: current; Page: [296] of Pennsylvania can neither assemble nor deliberate together in one place. When I reflect, that the laws which are to be made may affect my own life, my own liberty, my own property, and the lives, liberties, properties, and prospects of others likewise, who are dearest to me, I consider the trust, which I place in those for whom I vote to be legislators, as the greatest that one man can, in the course of the business of life, repose in another. I know none, indeed, that can be greater, except that, with which the members of this convention are now honoured; and which happens not but once, and often not once, in the successive revolutions of numerous centuries. But I console myself, that the same trust, which is committed by me, is also committed by others, who are as deeply interested in its exercise as I am. I console myself further, that those, to whom this trust is committed, are the immediate choice of myself, and of those others equally interested with myself.

But, by the plan before you, I am now called upon to delegate this trust in a manner, and to transfer it to a distance, which I have never experienced before—I am called upon, not to appoint legislators of my own choice, but to impower others to appoint whomsoever they shall think proper, to be legislators over me, and over those nearest to me in the different relations of life—I am called upon to do this, not only for myself, but for thousands of my constituents, who have confided to me their interests and rights in this convention.—I am called upon to do this for my constituents, and for myself, for the avowed purpose of introducing a choice, different from that which they or I would make. I say different; because, if the people and the electors would choose the same senators, there cannot be even a shadow of pretence for acting by the nugatory intervention of electors. I am called upon to do this, not only for the purpose of introducing a choice of senators different from that which the people would make; but for the additional purpose of introducing a new state of things and relations hitherto unknown between the people and their legislators. On the principles of representation, as hitherto understood and practised, there was a trust, and one of the most intimate and important kind, between the people and their representatives, and a responsibility of the latter to the former. On the plan reported, that trust and that responsibility will certainly be weakened: it is doubtful whether they will not be wholly destroyed. Can a trust subsist without some mutual agreement or consent? Can responsibility, Edition: current; Page: [297] resulting from an election, operate in behalf of those who do not choose? Suppose one of the citizens, who chose an elector, who chose a senator, to expostulate with that senator concerning some part of his senatorial conduct; might not the senator retort upon him—Sir, I know not you in this business: I was not chosen a senator by you: I was chosen by——. To them I am ready to account for what I have done. You chose them my electors: if any thing is amiss, you will please to look to them for satisfaction. For, give me leave to tell you, that I know not you nor the other people of your district in my conduct as a senator: neither you nor they chose me. The constitution, sir, supposes that neither they nor you would have chosen me, if you had been indulged with a choice; for the constitution supposes an election made by electors to be very different indeed from that which would be made by the people.—What answer could be made to this?

But if this must be styled a trust, it is certainly one of a new and of a very extraordinary nature. It may subsist not only without the will or knowledge of those from whom it originates; but, on the principles of this plan, it may subsist against their will declared in the most publick and explicit manner. Suppose a senator to behave altogether to the dissatisfaction of a district, for which he is appointed: suppose the people unanimously inclined to remove him at the next election. Can they do it? No. Suppose them to give the most unequivocal instructions to the electors for this purpose: the electors may choose him, the instructions notwithstanding: and the senator may brave them and tell them that he will legislate for them, and make them feel all the effects of his legislative power, in spite of their unavailing efforts to the contrary.

Sir, I will consider well—I will ponder long—before I consent that legislators be introduced in a shape so very questionable. I am placed in a new situation. Permit me to view it again. I am called upon to transfer a right—the right of immediate representation in the legislature—a right which I have hitherto retained unalienated—a right which has never, heretofore, been transferred by the citizens of Pennsylvania. Certainly, sir, this new situation requires that I should make a solemn pause—look around me, and reflect what my constituents and I have been, and what we are likely to be.

Many honourable members of this convention are, I presume, in the same predicament with myself; both as it respects their constituents, and Edition: current; Page: [298] as it respects themselves. On every account, it is proper to weigh this subject well.

Those who advocate the plan of electors must do so, either to avoid inconveniences which cannot be avoided, or to obtain advantages which cannot be obtained, in an election by the people themselves. We are, therefore, naturally led to institute a comparison between the two modes of election; and to estimate and balance the qualities and consequences of each.

The subject is of high and extensive importance in the theory and practice of government; and well deserves a full, a patient, and a candid investigation.

The works of human invention are progressive; and frequently are not completed, till after a slow and lengthened series of gradual improvements, remotely distant from one another both in place and in time. To the theory and practice of government this observation is applicable with peculiar justness and peculiar force. In this science, few opportunities have been given to the human mind of indulging itself in easy and unrestrained investigation: still fewer opportunities have offered of verifying and correcting investigation by experiment. An age—a succession of ages elapses, before a system of jurisprudence rises from its first rude beginnings. When we have made a little progress, and look forward, a few eminences in prospect are fondly supposed the greatest elevation we shall be obliged to ascend. But these, once gained, disclose, behind them, new and superiour degrees of excellence yet unattained. In beginning and continuing the pursuit of those arduous paths, through which this science leads us, the tracts, which we explore, point to others, which yet remain to be explored.

If the discoveries in government are difficult and slow; how much more arduous must it be to attain, in practice, the advantage of those discoveries, after they have been made! Of some governments, the foundation has been laid in necessity; of others, in fraud; of others, in force; of how few, in deliberate and discerning choice! If, in their commencement, they have been so unpropitious to the principles of freedom, and to the means of happiness; shall we wonder that, in their progress, they have been equally unfavourable to advances in virtue and excellence?

Let us ransack the records of history: in all our researches, how few fair instances shall we be able to find, in which a government has been formed, Edition: current; Page: [299] whose end has been the happiness of those for whom it was designed? how few fair instances shall we be able to find, in which such a government has been administered with a steady direction towards that end?

To these considerations, we must add others, which show still further the numerous and strong obstacles, that lie in the way of improvement in jurisprudence. Government founded on improper principles, and directed to improper objects, has a powerful and pernicious bias both upon those who rule, and those who are ruled. Its bias upon the first will occasion no surprise: its bias upon the second, however surprising, is not, perhaps, less efficacious, whether we consider their sentiments or their conduct. Thus the principles of despotism become the principles of a whole nation, blinded and degraded by its destructive influence. Power, splendour, influence, prejudice, fashion, habit, pride, and meanness, are all arranged to countenance and support those principles.

When we revolve, when we compare, when we combine the remarks we have been now making; when we take a slight glance of others that might be offered; we shall be at no loss to account for the slow and small progress, that, after a long lapse of ages, has been made in the science and practice of government.

This progress has been peculiarly slow and small in the discovery and improvement of the interesting doctrines and rules of election and representation. If government, with regard to other subjects, may be said, as with propriety it has been said, to be still in its infancy; we may well consider it, with regard to this subject, as only in its childhood. And yet this is the subject, which must form the basis of every government, that is, at once, efficient, respectable, and free. The pyramid of government—and a republican government may well receive that beautiful and solid form—should be raised to a dignified altitude: but its foundations must, of consequence, be broad, and strong, and deep. The authority, the interests, and the affections of the people at large are the only basis, on which a superstructure, proposed to be at once durable and magnificent, can be rationally erected.

Representation is the chain of communication between the people, and those to whom they have committed the exercise of the powers of government. If the materials, which form this chain, are sound and strong; I shall not be very anxious about the degree to which they are polished. Edition: current; Page: [300] But, in order to impart the true republican lustre to freemen, I know no means more efficacious, than to invite and admit them to the rights of suffrage, and to enhance, as much as possible, the value of that right.

I well know how shamefully this right, all-important as it is, has been neglected—I well know how often we have seen the election ground, thinly frequented, or almost deserted, bear mournful testimony to the indolence or to the indifference of the electors. I well know by what frivolous causes they have sometimes been induced to forego the enjoyment of the noblest right of men. But we will indulge the fond conjecture, that this supineness has been owing neither to defect nor degeneracy in the minds and principles of our citizens, nor to ignorance or disregard of the exalted rank, to which, as citizens of a free commonwealth, they are entitled. It has been occasioned, we flatter ourselves, by the narrow point of view, in which the right of election, before the revolution, was considered; and by the few objects, to which the exercise of it was directed. Before that event, the doctrine and the exercise of authority by representation was confined in Pennsylvania, as in England, to one branch of one of the great powers, into which we have seen government divided: and over even that branch a double negative was held suspended by two powers, neither of them professing to derive their authority from the people. Our surprise will be diminished, and our reprehension will be softened, by reflecting, that, in this dependent situation, the ardour of citizenship was probably damped as well as confined. Habits, once formed and become familiar, are not soon or easily laid aside. Our customs do not always or immediately vary in proportion to the variation of their causes. Indifference to elections, once less important, has continued, though their importance has been amazingly increased. But this, we hope, will not be the case long. The magnitude of the right will, we trust, secure, in future, the merited attention to the exercise of it.

What is the right of suffrage, which we now display, to be viewed, admired, and enjoyed by our constituents? Is it to go to an obscure tavern in an obscure corner of an obscure district, and to vote, amidst the fumes of spiritous liquors, for a justice of the peace? There, indeed, no lesson would probably be learned, but that of low vice; no example would probably be shown, but that of illiberal cunning. Is it even to choose the members of one part of a legislature, the patriotick counsels and efforts of which part Edition: current; Page: [301] are liable, at every moment, to be controlled and frustrated by the negatives of other powers, independent of the authority, and indifferent, perhaps unfriendly, to the interests of the people? Here, indeed, there might be room for lessons of frigid caution, and timid prudence. It might not be thought advisable to elect a representative of bold, undissembled, and inflexible virtue: he might be obnoxious to his superiours in the other line; and, instead of averting, might provoke the exercise of their overruling power.

Of much higher import—of much more improving efficacy, is that right, which is now the object of our contemplation. It is a right to choose, in large and respectable assemblies, all the legislative, and many of the executive officers of the government; it is a right to choose those, who shall be invested with the authority and with the confidence of the people, and who may employ that authority and that confidence for the noblest interests of the commonwealth, without the apprehension of disappointment or control.

This, surely, must have a powerful tendency to open, to enlighten, to enlarge, and to exalt the mind. I cannot sufficiently express my own ideas of the dignity and value of this right. In real majesty, an independent and unbiassed elector stands superiour to princes, addressed by the proudest titles, attended by the most magnificent retinues, and decorated with the most splendid regalia. His sovereignty is original: theirs is only derivative.

The benign influence flowing from the possession and exercise of this right deserves to be fully and clearly pointed out. The man who enjoys the right of suffrage on the extensive scale which we have marked, will naturally turn his attention to the contemplation of publick men and publick measures. The inquiries he will make, the information he will receive, and his own reflections on both will afford a beneficial and amusing employment to his mind. I am far from insinuating that every citizen should be an enthusiast in politicks, or that the interests of himself, his family, and those who depend on him for their comfortable situation in life, should be absorbed in Quixote speculations about the management or the reformation of the state. But there is surely a golden mean in things; and there can be no real incompatibility between the discharge of one’s publick and that of his private duty. Let private industry receive the warmest encouragement; for it is the basis of publick happiness. But must the bow of honest industry be always bent? At no moment shall a little relaxation be allowed? Edition: current; Page: [302] That relaxation, if properly directed, may prove to be instructive as well as agreeable. It may consist in reading a newspaper, or in conversing with a fellow citizen. May not the newspaper convey some interesting intelligence, or contain some useful essay? For all newspapers are not dedicated to the demon of slander. May not the conversation take a pleasing and an improving turn? Many hours, I believe, are every where spent in talking about the unimportant occurrences of the day or in the neighbourhood; and, perhaps, the frailties or the involuntary imperfections of a neighbour form too often one of the sweet but poisonous ingredients of the discourse. Would it be any great detriment to society or to individuals, if other characters, and with different views, were brought upon the carpet?

At every election, a number of important appointments must be made. To do this, is, indeed, the business of a day. But it ought to be the business of much more than a day to be prepared for doing it well. When a citizen elects to office—give me leave to repeat it—he performs an act of the first political consequence. He should be employed, on every convenient occasion, in making researches after proper persons for filling the different departments of power; in discussing, with his neighbours and fellow citizens, the qualities that should be possessed by those who fill the several offices; and in acquiring information, with the spirit of manly candour, concerning the manners, and history, and characters of those, who are likely to be candidates for the publick choice. A habit of conversing and reflecting on these subjects, and of governing his actions by the result of his deliberations, will form, in the mind of the citizen, a uniform, a strong, and a lively sensibility to the interests of his country. The same causes will produce a warm and an enlightened attachment to those, who are best fitted and best disposed to support and advance those interests.

By these means, and in this manner, pure and genuine patriotism—that kind, which consists in liberal investigation and disinterested conduct—is produced, cherished, and strengthened in the mind: by these means, and in this manner, the warm and generous emotion glows and is reflected from breast to breast.

Investigations of this nature would be useful and improving not to their authors only: they would be so to their objects likewise. The love of honest and well-earned fame is deeply rooted in honest and susceptible minds. Can there be a stronger incentive to the energy of this passion, than the Edition: current; Page: [303] hope of becoming the object of wellfounded and distinguishing applause? Can there be a more complete gratification of this passion, than the satisfaction of knowing that this applause is given—that it is given upon the most honourable principles, and acquired by the most honourable pursuits? To souls truly ingenuous, indiscriminate praise, misplaced praise, flattering praise, interested praise have no bewitching charms. But when publick approbation is the result of publick discernment, it must be highly pleasing to those who give, and to those who receive it.

Let us now review a little the steps we have trod: let us reconsider the ground we have passed over, and the observations we have made. Have I painted the rights of election in colours too flattering?—Have I placed their importance in a light too strong?—Have I described their influence in language, or in sentiments, that have been exaggerated? I presume that I have not.

If, then, the remarks which I have made, and the deductions which I have drawn, will bear—and I trust they will bear—the test of strict and sober scrutiny; what is the result necessarily flowing from the whole? It is undeniably this—that the rights of suffrage, properly understood, properly valued, properly cultivated, and properly exercised, is a rich mine of intelligence and patriotism—that it is an abundant source of the most rational, the most improving, and the most endearing connexion among the citizens—and that it is a most powerful, and, at the same time, a most pleasing bond of union between the citizens, and those whom they select for the different offices and departments of government.

If these things are so; why should this right, so valuable and important, the cause of so many blessings, moral, intellectual, and political, be weakened—why should it be interrupted by the interjection of electors? Reasons irresistibly cogent will certainly be urged and supported, before such a measure will be adopted by the members of this convention.

It has been already mentioned, that those who advocate the plan of electors must do so, either to avoid inconveniences which cannot be avoided, or to obtain advantages which cannot be obtained, in an election by the people. What inconveniences will be avoided?

Will the meetings of the people be less frequent, less troublesome, or less expensive in choosing electors than in choosing senators? In respect both of frequency and of trouble they will be precisely the same. In respect Edition: current; Page: [304] of expense, the inconvenience will be increased by choosing electors; for it will be but reasonable that an allowance be made to them for their time, their trouble, and their services. In these respects, therefore, no inconvenience will be avoided, but an inconvenience will be incurred, by choosing electors.

Will inconveniences respecting the objects of choice attend elections by the people, and be avoided in elections by electors? What are those inconveniences?

Will the choice of the people be less valid than the choice of electors? That will not be pretended, since the electors themselves will derive all their authority from the people.

Will the choice of the people be less honourable than the choice of electors? In republican governments, the people are the fountain of honour as well as of power.

Will the choice of the people be less disinterested than the choice of electors? Interest will probably be consulted in both choices: but, in the first, the interests of the individuals, added together, will form precisely the aggregate interest of the whole; whereas, in the last, the interests of the electors, added together, will form but a small part of the interests of the whole; and that small part may be altogether unattached, nay, it may be altogether repugnant, to the remainder.

Will the choice of the people be less impartial than the choice of electors? The answer to this question is determined by the answer to the last. An impartial choice, in the case before us, is a choice that embraces the interests of the whole; a partial choice is that which embraces the interests only of a part. A choice by the people is most likely to suit the first description: a choice by electors is most likely to suit the last.

Will the choice of the people be made with less solicitude and fewer precautions for their common advantage than the choice of electors? If every individual among the people attends to his own advantage; the common advantage, which is the joint result of the whole, will be provided for. But every elector may be very attentive to his own advantage; and yet the common advantage may be left wholly unprovided for.

Will the choice of the people be less wise than the choice of electors? We have already seen that it will not be less valid, nor less honourable, Edition: current; Page: [305] nor less disinterested, nor less impartial, nor less for the common advantage: having seen all this, we may pronounce the presumption to be violent, that it will not be less wise. Upon this presumption we shall leave the matter for the present.

Permit me to observe, in the mean time, that inconveniences unavoidable in elections by the people, but altogether foreign from elections by electors, ought to be shown clearly and undeniably on the other side.

The next inquiry is—what advantages can be obtained in elections by electors, that are unattainable in elections by the people.

This side of the inquiry is, in my view, very much anticipated by the discussion of the other side: indeed it appears to me wholly unproductive. To those who think and speak in favour of electors, it may disclose sources of abundant fertility: to their investigations and discoveries I cheerfully leave it; observing, under this head, that the advantages to be gained, as well as the inconveniences to be avoided, ought to be shown clearly and undeniably on the other side. For if, upon the whole, the balance shall hang in equilibrio; the predilection, for the strong reason already mentioned, will certainly be in favour of a choice by the people themselves, and not by electors.

This predilection ought to operate for another reason, which has not yet been mentioned. It will be cheerfully admitted, that all power is originally in the people: the consequence, unavoidable, is, that power ought to be exercised personally by the people, when this can be done without inconvenience and without disadvantage. In some of the small republicks of Greece, and in the first ages of the commonwealth of Rome, the people voted, even on the passing of laws, in their aggregate capacity. Among the ancient Germans this was also done upon great occasions. “De minoribus consultant principes,” says Tacitus, in his masterly account of Germany, “de majoribus omnes.”1 And from the practices of the ancient Germans, some of the finest maxims of modern government are drawn. If, therefore, no inconvenience will be avoided, and no advantage will be obtained by Edition: current; Page: [306] the plan of electors—and this is the case, so far as we have yet seen—that plan should not be substituted in the place of a choice of senators by the people themselves.

Were we to satisfy ourselves with this partial and incomplete consideration of the subject; I apprehend we should be extremely unwilling to transfer the choice of senators from the people to electors. But if we pursue the examination a little further, we shall find still stronger reasons for this reluctance: for we shall find, I believe, that, by such a transfer, instead of avoiding inconveniences and obtaining advantages, we shall sacrifice advantages for the acquisition of inconveniences.

The political connexion between the people and those whom they distinguish by elective offices, and the reciprocal sensations and engagements resulting from that connexion, I consider as most interesting in their nature, and most momentous in their consequences. This connexion should be as intimate as possible: if possible, it should be indissoluble. Confidence—mutual and endearing confidence—between those who impart power and those to whom power is imparted, is the brightest gem in the diadem of a republick. Let us sedulously avoid every danger of its being broken or lost.

Will there be the same generous emotions of confidence in the body of citizens towards the senators?—Will there be the same warm effusions of gratitude in the senators towards the body of the citizens, if the cold breath of electors is suffered to blow between them? Can the senator say to the people—you are my constituents; for you chose me? Can the people say to the senator—you are our trustee, for you are the object of our choice? Will not these relations, equally delightful and attractive on both sides, be greatly weakened—will not their influence be greatly diminished, by the interposition of electors?

But let us contemplate this subject in a still more serious and important point of view. The great desideratum in politicks is, to form a government, that will, at the same time, deserve the seemingly opposite epithets—efficient and free. I am sanguine enough to think that this can be done. But, I think, it can be done only by forming a popular government. To render government efficient, powers must be given liberally: to render it free as well as efficient, those powers must be drawn from the people, as directly and as immediately as possible. Every degree of removal is attended with Edition: current; Page: [307] a corresponding degree of danger. I know that removals, or at least one removal, is, in many instances, necessary in the executive and judicial departments. But is this a reason for multiplying or lengthening them without necessity? Is it a reason for introducing them into the legislative department, the most powerful, and, if ill constituted, the most dangerous, of all? No. But it is a strong reason for excluding them wherever they can be excluded; and for shortening them as much as possible wherever they necessarily take place. Corruption and putridity are more to be dreaded from the length, than from the strength, of the streams of authority.

On this great subject, I offer my sentiments, as it is my duty to do, without reserve. I think—that all the officers in the legislative department should be the immediate choice of the people—that only one removal should take place in the officers of the executive and judicial departments—and that, in this last department, a very important share of the business should be transacted by the people themselves.

These are, in a few words, the great outlines of the government, which I would choose. I fondly flatter myself that all the parts of it might be safely, compactly, and firmly knit together; and that the qualities of goodness, wisdom, and energy might animate, sustain, and pervade the whole.

And for what should we sacrifice all the valuable connexions, principles, and advantages, which have been mentioned? For electors?—Who are those electors to be? Logicians sometimes describe the subjects of their profound lucubrations negatively as well as positively. Let us borrow a hint from them, on this occasion. Who are those electors not to be? 1. They will be such as the people will think not the fittest to represent them in the most numerous branch of the legislature; for no representatives can be electors. 2. They will be such as the people will think not the fittest to be senators; for no elector can be a senator; and therefore the people will not choose those to be electors, whom they would wish to see in the senate. 3. They will be such as the governour has thought not the fittest for any office in the executive or judicial departments; for persons holding appointments in any of those departments cannot be electors. I was going to say, in the fourth place, that they will be such as will be thought not the fittest for any office under the executive department in future. But here, I find, I am mistaken. For they may hold offices the moment after their election of senators; and I will not assert it to be impossible, that they Edition: current; Page: [308] will acquire their qualifications for those offices by their conduct in that election.

Thus far we have pursued their negative descriptions. The task of expatiating on their positive qualities, I beg leave, for the present, to assign to those who must be supposed to understand them much better. For they must certainly know well the purifying virtues of those political alembicks, through which they wish to see our senators sublimated and refined.

Among the numerous good qualities of the electors, we hope, one will be—that they will be unsusceptible of intrigue or cabal among themselves. A second, we hope, will be—that they will be inaccessible to the impressions of intrigue and cabal from others. A third, we hope, will be—that as the people, by choosing them electors, have intimated decently that they think them not the fittest persons to be senators, they will cultivate the same decent reserve with regard to their brothers, their cousins, their other relations, their friends, their dependents, and their patrons.

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Speech Delivered, on 19th January, 1790, in the Convention of Pennsylvania, Assembled for the Purpose of Reviewing, Altering, and Amending the Constitution of the State.

on a motion that

“No member of congress from this state, nor any person holding or exercising any office of trust or profit under the United States, shall, at the same time, hold and exercise any office whatever in this state.”

It has frequently been my lot to plead the cause of others; sometimes of individuals, sometimes of publick bodies, oftener than once of the commonwealth of Pennsylvania. It is now my lot to be under the hard necessity of pleading my own. That commonwealth, whose cause I have pleaded—and pleaded successfully—that commonwealth, in whose service I have laboured faithfully—I defy even my enemies to refute the assertion—though, to myself, very unprofitably—that commonwealth, which I have served in times of safety and in times of danger, through good report, and through bad report—that commonwealth, sir, if the present motion shall be adopted, is about to strip me of the most valuable rights of citizenship. And this is to be done without any offence or cause of forfeiture on my part; unless to have been highly honoured by the president and senate of the United States is, in her consideration, now become a crime, and to have accepted of the high honour is, in her eye, become a cause of forfeiture.

Well, then, may I say, that I am now to plead my own cause. All the citizen is roused within me; and I dissemble neither my feelings nor my interest: for both my interest and my feelings as a citizen of Pennsylvania Edition: current; Page: [310] assure me, in a manner which I cannot mistake, but which, at the same time, I cannot express, that this cause is personally my own. As such, therefore, I shall openly and directly consider and plead it. I am afraid, however, that I shall acquit myself but awkwardly: the task is new and unfamiliar: the path before me I have not hitherto trod. But a ray of consolation darts upon me. Though the cause is personally, it is not exclusively my own. I plead the cause likewise of some of the most distinguished citizens of Pennsylvania: I plead what will soon be the cause of others of her citizens equally distinguished: I plead what will continue, in future ages, to be the cause of her best, and those who ought to be her most favoured sons: I plead, sir, the cause of Pennsylvania herself: for Pennsylvania herself will certainly suffer, if she shall be deprived of the services of such of her citizens, as shall be best qualified for serving her. To deprive her of the services of such citizens is the evident tendency, the evident object, and the evident principle of the present motion: for such will be the citizens selected for the offices of the United States.

But here, sir, I must beg not to be misunderstood. When I speak of the principle and object and tendency of the motion, I mean not to apply those expressions to the principles, the views, or the wishes of its honourable mover. Between the first and the last there may be, and, I think, there probably is, a very considerable difference. In suggesting this, I pay not, to his principles, a compliment at the expense of his understanding; for to the most enlightened mind it is no disparagement to suppose, that, at first sight, it does not perceive all the distant bearings and relations and dependencies, which a motion, especially one so extensive as this, may, on investigation, be found to have.

The motion is in these words: “No member of congress from this state, nor any person holding or exercising any office of trust or profit under the United States, shall, at the same time, hold and exercise any office whatever in this state.” It embraces all this broad and comprehensive position—every person, who is employed or trusted by the United States, ought, for that reason, to be incapacitated from being employed or trusted by the commonwealth of Pennsylvania, one of those states who compose the union. This position, your adoption of the motion will establish in its fullest force and extent. It will become a part, not merely of the law, but of the constitution of the land; and will be a binding and perpetual rule for Edition: current; Page: [311] the future conduct of this commonwealth. This, sir, and nothing short of this, is the true and necessary import of the question before you.

It is not, that some offices under the United States may, in point of propriety, or in point of policy, in the nature of their exercise, or in the place where they are exercised, be inconsistent with some offices under Pennsylvania. This, I will readily admit, may be the case under those different governments. It has been admitted to be the case in an instance already agreed to without opposition—I mean that of the governour. This may often be the case with regard to different offices even under the same government. Of this there are many examples in the system before you. They have encountered no disapprobation from me or any other member.

Again: the position, in the motion before you, is not, that it would be inconsistent or improper for the same person to hold, in any case, more offices than one. No, sir: this motion may be adopted, and yet one person may have twenty different offices accumulated upon him under this very constitution. For the position is not, “that no person, holding any one office, shall, at the same time, hold any other office, under this state:” but the position is, “that every person, holding an office under the United States, should be excluded from every office whatsoever in this state.” For this reason, sir, all the numerous observations, which we heard on Saturday, from the honourable mover, concerning the profuse and improvident donations of offices, which the people, in a fit of fondness, might heap on the head of a popular favourite, however they might suit other purposes, were evidently beside the purpose of the motion. The motion, though adopted, will not prevent, nor is it calculated to prevent, such thoughtless and injudicious accumulations.

I have always flattered myself, that the constitution of the United States would be a bond of union, and not a principle of inveterate alienage, far less of hostility, between the several states; certainly and more particularly, between each of them and the United States. “A more perfect union” is declared to be one end of that constitution. That constitution, I believe, was intended to be the centre of attraction for that “more perfect union.” Shall we convert that constitution, as far as it can depend on Pennsylvania—fortunately for the union, we can convert it no farther—into a principle of repulsion? If that is the design of this committee; if that is an object, for the accomplishment of which our constituents sent us here; the Edition: current; Page: [312] motion before you is well fitted for fulfilling that design; it is well fitted for accomplishing that object. Under the operation of this motion, if the government of the United States shall hereafter distinguish a citizen of Pennsylvania with an “office of profit or trust;” that government must become, however reluctantly, the repulsive agent in destroying the better half of his right of citizenship; and, consequently, of diminishing, by the better half, his political connexion with this commonwealth.

This, sir, is no inflated or exaggerated representation of the matter: the account is strictly and severely true. The right of citizenship consists in these two things: 1. A right to elect. 2. A right to be elected into office. Of the two, the last is certainly not the least valuable or important. Of the last I shall be deprived by your adoption of the motion before you. I call for the principles and reasons of deprivation. I demand, sir—for I have a right to demand—from the justice of this committee, that those principles and reasons be clearly shown and incontestably proved, before the sentence of deprivation be passed against me. I think I heard, on Saturday, an opinion mentioned as being decidedly formed. I trust that the expression was used inadvertently: I trust that the honourable members of this committee will hear, and weigh, and consider, before they decide.

Believe me, sir, the principle, more than any foreseen consequence, of disfranchisement wounds and alarms me. We are told in history, that a person, whose inclination had never led him beyond the gates of Rome, sickened and died, when Augustus, in a wanton trick of his absolute power, confined him within those very limits, beyond which he had never previously wished to go. ’Tis one thing, sir, to be without an office: ’tis a very different thing to be disqualified from holding an office, and to wander about like a person attainted and cut off from the community. The first is often the effect of choice; the last never is; it is the result of dire necessity. The idea of disqualification is a most mortifying idea, when applied by one to himself: it is a most insulting idea, when applied to him by others. And can you think, sir, that I would wish to become or continue the constant mark of mortification or insult? No, sir; I can, at least, comfort myself, that I will not be reduced to this situation. The motion of the honourable gentleman is not armed—fortunately it cannot be armed—with the sting of the edict of Augustus: it may prompt me to go; but it cannot compel me to stay. I can cross the Delaware. In New Jersey, I shall be received as a citizen—a Edition: current; Page: [313] full citizen—of the state; and, at the same time, may hold a dignified and important office under the United States. What I say concerning New Jersey, I may say concerning New Hampshire, Massachusetts, Connecticut, New York, Delaware, Maryland, North Carolina, South Carolina, and Georgia. For none of those states, so far as I know or have been informed, view honourable employments under the national government through the inverted speculum of the motion, which presents them as causes of disqualification and disfranchisement. Nay, sir, I believe I can go to Rhode Island, and be received there as more than a half citizen, if I choose it; for I have not heard, that that state, antifederal as it is, has passed an act of incapacity against the officers of the United States.

But we are told, that the commonwealth of Virginia has observed a different conduct; and has exhibited an example, which we are now solicited to imitate. I wish, sir, to know if this favourite example forms a part of the constitution of Virginia. If it does not—and I presume it does not—I wish to see the law that has produced it: I wish to examine that law: I wish to know the reason of that law: I wish to know the time when, and the occasion on which, that law was made: I wish to know the temper and the national principles of the legislature, which made that law. I have been informed, how correctly I will not undertake to vouch, that an antifederal leader in Virginia, foiled by the convention of that commonwealth in his opposition to the national government, introduced into the legislature, and succeeded in fixing some stigma, as far as that legislature could fix a stigma, upon the federal characters of that state. Perhaps, sir, my information is correct; and this law may be the very thing. Perhaps, sir, it may have been the production of the convulsive throes of an antifederal fit. If so—and I think the conjecture a probable one—so soon as the fit shall be over—and, I hope, it will be over soon, if it is not over already—Virginia will remove its effects by considerately repealing the law, which it had precipitately occasioned.

But shall we, sir, suffer ourselves to become infected with the transient, though violent disorder of a neighbouring state? Shall we do more, sir?—shall we inoculate this disorder to become a perpetual and incurable poison in the very vitals of our constitution? I confess I did not expect to see the symptoms of this distemper reappear so soon in Pennsylvania, after all the successful efforts that have been made to expel them from her borders.

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It seems that I ought to be incapacitated from enjoying the confidence of this state, while I hold an office under the United States. And yet I may hold one office in this state, and not be incapacitated from holding twenty or thirty more. And yet I may hold an office under New Jersey, and not be incapacitated. I may hold an office under any other, and even under every other state in the Union, and not be incapacitated. I may hold an office under France, under any other state in Europe, under any other state in the world, and not be incapacitated. I may have held an office under Great Britain, and, under that office, may have acted against the United States and against this state, during all the late war; I may still hold that very office, and not be incapacitated. But—the position occurs again—if I hold an office under the United States, I must be incapacitated from any trust under Pennsylvania.

Whence, sir?—in the name of wonder—whence this principle of hostility—this principle of hostility, operating solely and peculiarly—between this commonwealth and the United States? Let it be explained: let us know its origin: let us know its nature: let us know its extent: let us know its effects.

If this principle exists, and ought to be provided against; it is surprising that no such provision was made or recommended against it, by the general convention, formed of members from all the states in the Union—a convention, which, I believe, understood the interests of the Union and of all its parts. If it ought to be a part of our constitution that “no person, holding any office under the United States, shall, at the same time, hold any office in this state;” it ought to have been a part of the constitution of the United States, that “no person holding any office under Pennsylvania, or any other state in the Union, shall, at the same time, hold any office in the national government.” But no such part is to be found in that constitution. We may presume—I suggest it with deference—we may presume, that the whole knew the proper connexion between itself and its parts; and provided for the preservation, the strength, and the limits of that connexion, as well as one of the parts can know and provide for the preservation, the strength, and the limits of its connexion with the whole. But no such provision as this is made by those, who had the whole state of the Union before them: the inference is fair, that this provision is dictated, not by a general and comprehensive, but by a partial and contracted view of the subject.

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Will the principle of this motion contribute to preserve or to strengthen the political connexion between the United States and the commonwealth of Pennsylvania? Will it not, on the other hand, contribute to weaken, to interrupt, or to dissolve it? The principle of this motion, sir, is a principle of political alienage: I go farther—it contains a declaration of political hostility by this commonwealth against the United States. It declares that this commonwealth ought not to trust or employ any person, whom the United States have thought worthy of trust or employment. On what foundation can such a declaration rest? It can have no reasonable foundation, unless the interests and views of the United States are, in their nature and tendency, hostile to the interests and views of this commonwealth. Let it be shown wherein this hostility of views and interests consists.

I have already admitted, that there are many instances, in which offices under different governments are incompatible in point of propriety, or in point of policy, in the nature of their exercise, or in the place where they are exercised. I have admitted also, that an accumulation of offices may be very improper under the same government. But it has appeared, that the principle, the tendency, and the object of this motion are not to prevent any incompatibilities or improprieties of these kinds.

On the other hand, there are many instances, in which different offices, not only under the same government, but even under different governments, may be held, not only with great propriety, but even with great advantage to the publick, by the same persons. Against the enjoyment of this publick advantage, the motion before you is levelled and directed.

And yet, sir, our own experience has attested its happy effects. During the late war, we reaped solid benefits from the exertions and talents of officers—in one instance, of a very distinguished officer—in the service of France. Would we have reaped those benefits, had France adopted, against the United States, the unfriendly principle, which is now recommended to a state, hitherto one of the most federal and one of the most affectionate in the Union? Suppose the sovereign of those officers to have declared to them in the spirit of this motion—“the moment you accept any office under the United States, you shall be disqualified, by that acceptance, from holding any office in my service,”—what would have been the consequence? The United States would have been deprived of their military skill and assistance. But, happily for us, the king of France was Edition: current; Page: [316] not actuated by the spirit of this motion: shall I risk the expression, that he was more federal?

On how many sudden and unforeseen emergencies may the services of a stated officer of the United States be useful, perhaps, in the opinion of the publick, necessary for this commonwealth! On how many sudden and unforeseen emergencies may the services of a stated officer of this commonwealth be useful, perhaps, in the opinion of the publick, necessary for the United States? Why, in both cases, should the door of mutual, useful, necessary, and patriotick exertion be constitutionally shut? For this motion will operate both ways. If the officers of the United States are to be considered as aliens with regard to their capacity of holding offices under this commonwealth: the officers of this commonwealth must be considered as aliens with regard to their capacity of holding offices under the United States.

When I say, sir, that, in both instances, they must be considered as aliens; I use an expression much too soft: for under both constitutions—that of the United States and that which we propose—aliens may be employed in many offices. This motion, if adopted, will, therefore, introduce, between the United States, and this state, as to offices, more than a state of alienage. I was justified in saying, that this motion contained a principle and declaration of political hostility, as to offices, between this commonwealth and the United States. Before the sentence of disfranchisement from office in Pennsylvania be passed, by the adoption of this motion, against the officers of the United States; I again demand that it be clearly shown wherein the principle of political hostility between the two governments consists.

I think it has been suggested, that unless the principle of this motion be introduced into the constitution, the government of the United States may acquire, in Pennsylvania, an influence dangerous to her counsels, dangerous to her interests, and dangerous even to her existence. That government, it was supposed, might, by appointing to its offices the officers of this state, attach them to the measures, the interests, and the counsels of the United States, in opposition to the measures, the interests, and the counsels of Pennsylvania. Like the motion, this reasoning in support of it is founded on an implied principle of hostility between the two Edition: current; Page: [317] governments. Before the committee subscribe to the reasoning, they will require that the principle of hostility be shown.

But let us, for a moment, suppose it to exist: let us suppose that the measures, and interests, and counsels of the United States are in diametrical and inveterate opposition to those of Pennsylvania: let us suppose, that, in order to promote those adverse interests, to establish those adverse counsels, and to carry into effect those adverse measures, the president and senate of the United States should call to their aid, and associate in their designs, the officers of Pennsylvania; would it be politick or wise in Pennsylvania to cooperate, in the most effectual manner, with the president and senate for the accomplishment of their plans? Could she do this more effectually by any means, than by detaching from her all the officers of the state, whom the president and senate would wish to attach to them? Could she detach them from her more effectually by any means, than by disfranchising them from their offices, and by treating them as aliens, nay, worse than aliens? Could she do this more effectually by any means, than by cutting asunder the strongest ties of political connexion and political affection between her and them?

I believe, sir, you may hear, from some states, a series of reasoning, very opposite to that before mentioned: you may hear a train of reflection to the following purpose: What! shall we part with the interests, with the affections, and with the services of our citizens, because they are called into the service of the United States? No. Let us retain their interests; for their interests will be ours: let us retain their affections; for these, at least, may remain with us: let us retain their services, as far as they shall be compatible—and, in many instances, they will be compatible—with their superiour duty to the United States.

Whether this train of reflection and reasoning be just and strong, I shall not pretend to determine. I shall only observe, that, as far as I know, the conduct of every state in the union has been consonant to it, excepting only that of the commonwealth of Virginia—and shall I, after some time, be obliged to make the cruel addition—and excepting likewise that of the commonwealth of Pennsylvania?

’Tis possible, sir, though I will not allow it to be probable, that this cruel addition must be made. ’Tis possible, though, again, I will not allow Edition: current; Page: [318] it to be probable, that Pennsylvania may become as infamous for her antifederal, as she has hitherto been renowned for her federal principles. ’Tis possible, though, still, I will not allow it to be probable, that she may hereafter be as much dishonoured by the littleness, as she has heretofore been admired for the liberality, of her politicks. Her counsels may take an inverted and diminishing turn. Those, sir, who cannot shine in a spacious sphere, will wish to draw some notice in a contracted one. Those, who cannot be distinguished by acting a part in an enlarged system, will endeavour to distinguish themselves by acting as the little but principal puppets in a narrow and separated scene. Into such hands, sir, it is possible—though I once more enter my protest against the probability of the event,—that Pennsylvania, for her sins, may fall.

If this very improbable, but very possible event should take place; then, indeed, the cruel addition, which I have already mentioned, must be made. Yet even then, this cruel circumstance would carry with it, in some degree, its own alleviation. In such a circumstance, the pangs of separation from Pennsylvania would become less severe. Even in such a circumstance, I hope one consolation might be constitutionally allowed me. On my way to the government of the United States, I might turn and look back from the opposite shore of the Delaware; and though Pennsylvania should reject my faithful services, she might permit me, with a fluttering heart and faultering tongue, to wish her well.

But, sir, I will not pursue the consideration of an event so irreconcilable with the present genius and principles of Pennsylvania. Is she jealous, because her sons are received into the arms of the United States? No, sir. Was she to open her lips upon this occasion, we should hear the following, or some such as the following, accents: “Though I cheerfully resign you to the service of the Union, in which my own service is, to many important purposes, included; yet I renounce not your affections; nor do I abdicate my well founded claim to your duty. You may still be of use to me; and I retain my right to the exertions of your usefulness, whenever I shall call upon you on a proper occasion. In the mean time, employ your utmost efforts for the interest of the United States: by doing this, you will essentially promote mine; and you will be likewise better prepared, and better disposed for serving me, whenever I shall particularly require Edition: current; Page: [319] your service.” Such would be the language, such would be the sentiments, of our venerable political parent. Such, sir, without personification, and without an allegory, I believe to be literally and strictly the language and sentiments of a great majority of the people of this commonwealth. This language and these sentiments are in direct contradiction to the language and principles of the motion before you. To which will this committee pay the greatest regard?

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A Charge Delivered to the Grand Jury in the Circuit Court of the United States, for the District of Virginia, in May, 1791.

Gentlemen of the Grand Jury,

To prevent crimes is the noblest end and aim of criminal jurisprudence.

To punish them is one of the means necessary for the accomplishment of this noble end and aim. The impunity of an offender encourages him to repeat his offences. The witnesses of his impunity are tempted to become his disciples in his guilt. These considerations form the strongest—some view them as the sole argument for the infliction of punishments by human laws.

There are, in punishments, three qualities, which render them the fit preventives of crimes. The first is their moderation. The second is their speediness. The third is their certainty.

We are told by some writers, that the number of crimes is unquestionably diminished by the severity of punishments. If we inspect the greatest part of the criminal codes; their unwieldy bulk and their ensanguined hue will force us to acknowledge, that this opinion may plead, in its favour, a very high antiquity, and a very extensive reception. On accurate and unbiassed examination, however, it will appear to be an opinion unfounded and pernicious, inconsistent with the principles of our nature, and, by a necessary consequence, with those of wise and good government.

So far as any sentiment of generous sympathy is suffered, by a merciless code, to remain among the citizens, their abhorrence of crimes is, by the barbarous exhibitions of human agony, sunk in their commiseration of criminals. These barbarous exhibitions are productive of another bad effect—a latent and gradual, but a powerful, because a natural, aversion to the laws. Can laws, which are a natural and a just object of aversion, receive a cheerful obedience, or secure a regular and uniform execution? Edition: current; Page: [321] The expectation is forbidden by some of the strongest principles in the human frame. Such laws, while they excite the compassion of society for those who suffer, rouse its indignation against those who are active in the steps preparatory to their sufferings.

We may easily conjecture the result of those combined emotions, operating vigorously in concert. The criminal will, probably, be dismissed without prosecution by those whom he has injured. If prosecuted and tried, the jury will probably find, or think they find, some decent ground, on which they may be justified, or at least excused, in giving a verdict of acquittal. If convicted, the judges will, with avidity, receive and support every, the nicest exception to the proceedings against him; and, if all other things should fail, will have recourse to the last expedient within their reach for exempting him from rigorous punishment—that of recommending him to the mercy of the pardoning power. In this manner, the acerbity of punishment deadens the execution of the law.

The criminal, pardoned, repeats the crime, under the expectation that the impunity also will be repeated. The habits of vice and depravity are gradually formed within him. Those habits acquire, by exercise, continued accessions of strength and inveteracy. In the progress of his career, he is led to engage in some desperate attempt. From one desperate attempt he boldly proceeds to another, till, at last, he necessarily becomes the victim of that preposterous rigour, which repeated impunity had taught him to despise, because it had persuaded him that he might always escape.

When, on the other hand, punishments are moderate and mild, every one will, from a sense of interest and of duty, take his proper part in detecting, in exposing, in trying, and in passing sentence on crimes. The consequence will be, that criminals will seldom elude the vigilance, or baffle the energy, of publick justice.

True it is, that, on some emergencies, excesses of a temporary nature may receive a sudden check from rigorous penalties: but their continuance and their frequency introduce and diffuse a hardened insensibility among the citizens; and this insensibility, in its turn, gives occasion or pretence to the farther extension and multiplication of those penalties. Thus one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law.

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Such a system is calculated to eradicate all the manly sentiments of the soul, and to substitute, in their place, dispositions of the most depraved and degrading kind. It is the parent of pusillanimity. A nation broke to cruel punishments becomes dastardly and contemptible. For, in nations, as well as individuals, cruelty is always attended by cowardice. It is the parent of slavery. In every government, we find the genius of freedom depressed in proportion to the sanguinary spirit of the laws. It is hostile to the prosperity of nations, as well as to the dignity and virtue of men. The laws, which Draco1 framed for Athens, are said emphatically to have been written in blood. What did they produce? An aggravation of those very calamities, which they were intended to remove. A scene of the greatest and most complicated distress was accordingly exhibited by the miserable Athenians, till they found relief in the wisdom and moderation of Solon. It is a standing observation in China—and China has enjoyed a very long experience—that in proportion as the punishments of criminals are increased, the empire approaches to a new revolution. The Porcian law provided, that no citizen of Rome should be exposed to a sentence of death. Under the Porcian law, the commonwealth grew and flourished. Severe punishments were established by the emperours. Under the emperours, Rome declined and fell.

The principles both of utility and of justice require, that the commission of a crime should be followed by a speedy infliction of its punishment.

The association of ideas has vast power over the sentiments, the passions, and the conduct of men. When a penalty marches close in the rear of the offence, against which it is denounced; an association, strong and striking, is produced between them: and they are viewed in the inseparable relation of cause and effect. When, on the contrary, the punishment is procrastinated to a remote period; this connexion is considered as weak and precarious; and the execution of the law is beheld and suffered as a detached instance of severity, warranted by no cogent reason, and springing from no laudable motive.

It is just, as well as useful, that the punishment should be inflicted soon after the commission of the crime. It should never be forgotten, that imprisonment, though often necessary for the safe custody of the person Edition: current; Page: [323] accused, is, nevertheless, in itself, a punishment—a punishment galling to some of the finest feelings of the heart—a punishment too, which, since it precedes conviction, may be as undeserved as it is distressing. But imprisonment is not the only penalty, which an accused person undergoes before his trial. He undergoes also the corroding torment of suspense—the keenest agony, perhaps, which falls to the lot of suffering humanity. This agony is by no means to be estimated by the real probability or danger of conviction: it bears a compound proportion to the delicacy of sentiment and the strength of imagination possessed by him, who is doomed to become its prey.

These observations show, that those accused of crimes should be speedily tried, and that those convicted of them should be speedily punished. But with regard to this, as with regard to almost every other subject, there is an extreme on one hand as well as on the other; and the extremes on each hand should be avoided with equal care. In some cases, at some times, and under some circumstances, a delay of the trial and of the punishment, instead of being hurtful or pernicious, may, in the highest degree, be salutary and beneficial, both to the publick, and to him who is accused or convicted.

Prejudices may naturally arise, or may be artfully fomented, against the crime, or against the man who is charged with having committed it. A delay should be allowed, that those prejudices may subside, and that neither jurors nor judges may, at the trial, act under the fascinating impression of sentiments conceived before the evidence is heard, instead of the calm influence of those which should be only its impartial and deliberate result. A sufficient time should be given to prepare the prosecution on the part of the state, and the defence of it on the part of the prisoner. This time must vary according to different persons, different crimes, and different situations.

After conviction, the punishment assigned to an inferiour offence should be inflicted with much expedition. This will strengthen the useful association between them; one appearing as the immediate and unavoidable consequence of the other. When a sentence of death is pronounced, such an interval should be permitted to elapse before its execution as will render the language of political expediency consonant to the language of religion.

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Under these qualifications, the speedy punishment of crimes should form a part in every system of criminal jurisprudence.

But the certainty of punishments is that quality, which is of the greatest importance in order to constitute them fit preventives of crimes. This quality is, in its operation, most merciful as well as most powerful. When a criminal determines on the commission of a crime, he is not so much influenced by the lenity of the punishment, as by the expectation that, in some way or other, he may be fortunate enough to avoid it. This is particularly the case with him, when this expectation is cherished by examples or by experience of impunity. It was the saying of Solon, that he had completed his system of laws by the combined energy of justice and strength. By this expression he meant to denote, that laws, of themselves, would be of very little service, unless they were enforced by a faithful and an effectual execution of them. The strict execution of every criminal law is the dictate of humanity as well as of wisdom.

This strict execution is greatly promoted by accuracy in the publick police, by vigilance and activity in the ministerial officers of justice, by a prompt and regular communication of intelligence, and by a proper distribution of rewards for the discovery and apprehension of criminals.

Among all the plans and establishments, however, which have been devised for securing the wise and uniform execution of the criminal laws, the institution of grand juries holds the most distinguished place. This institution is, at least in the present times, the peculiar boast of the common law. The era of its commencement, and the particulars attending its gradual progress and improvement, are concealed behind the thick veil of a very remote antiquity. But one thing concerning it is certain. In the annals of the world, there is not found another institution so well adapted for avoiding all the inconveniences and abuses, which would otherwise arise from malice, from rigour, from negligence, or from partiality in the prosecution of crimes.

Among the Romans, any one of the citizens, as well as the person more immediately injured, might prosecute a publick offence. This practice produced mischiefs very great, and of very opposite kinds. Prosecutions were conducted, on some occasions, from motives of rancour and revenge. On other occasions, they were undertaken by a friend, perhaps a confederate of the criminal, with a view to ensure his impunity.

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In several of the feudal nations, the judge himself was originally the prosecutor. The gross impropriety of such a regulation appears at the first view. The prosecutor is a party: can the same person be both a party and a judge? To remove the grievances, to which this regulation gave birth, a publick prosecutor was appointed to manage the judicial business of the crown, or of the community, before the proper tribunals.

But that crimes may be prosecuted duly and regularly, it is necessary that impartial and authentick information of their existence should be obtained. To furnish such information is the great object of the institution of grand juries.

Sometimes the grand jury bring forward accusations of their own proper motion: sometimes they proceed upon particular charges formally laid before them by the publick prosecutor. These two modes are distinguished by the well known appellations of presentment and indictment. In both, it is the right, and it is the duty of a grand jury, to inquire diligently, and to present truly.

It is your immediate business, gentlemen, to make inquiries and give official information concerning such crimes and offences as may have been committed against the constitution and laws of the United States, and are cognizable by this circuit court held for the district of Virginia in the middle circuit. To assist you in those inquiries, I shall describe to you the jurisdiction, which, in criminal matters, is vested in the circuit courts; and I shall give you a very plain and concise account of the crimes and offences known to the constitution and laws of the United States, and of the punishments denounced against those crimes and offences.

The circuit courts have exclusive jurisdiction of all crimes and offences, which are cognizable under the authority of the United States, except where it is or shall be provided otherwise by law. They have also concurrent jurisdiction with the district courts, of the crimes and offences, which are cognizable in those courtsa The crimes and offences, of which the district courts have jurisdiction, and of which, consequently, the circuit courts have concurrent jurisdiction, are all such as are cognizable under the authority of the United States, provided they be committed within the respective districts, or on the high seas; and provided they be those on Edition: current; Page: [326] which no other punishment than a fine not exceeding one hundred dollars, imprisonment not exceeding six months, or whipping not exceeding thirty stripes is to be inflicted.b

Treason generally occupies the first place in the long catalogue of crimes. On this subject, so interesting to the publick and to the citizens, a very important improvement has been ingrafted by the constitution of the United States.

If the description of treason be vague and indeterminate under any government; this alone will be a sufficient cause why that government should degenerate into tyranny. If the denomination and the penalties of treason be communicated to offences of a different and inferiour kind; the horrour, which would otherwise attend this complicated crime, is weakened by the association with things, to which, in truth, it has neither relation nor resemblance.

In the reign of Henry the eighth,2 a law was made in England by which any one, who predicted the death of the king, was declared guilty of treason. Arbitrary power, on some occasions, recoils upon those who exert it. When this capricious and tyrannical prince lay on his death bed, his physicians would not inform him of his danger, because they would not incur the penalties of his law. We are told by the English parliament itself, that, at another period, so many “pains of treason were ordained by statute, that no man knew how to behave himself, to do, speak, or say, for doubt of such pains.”

Under our national government, we have not only a legal, but a constitutional security against arbitrary and constructive treasons.

1. Under that government, treason against the United States can be committed only by levying war against them, or by adhering to their enemies, giving them aid and comfort.c

2. Misprision of treason consists in knowing the commission of treason, and not disclosing it, as soon as may be, to the president or some one of the judges of the United States, or to the first executive magistrate or some one of the judges or justices of a particular state.d

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Other crimes and offences against the United States may be comprised under the following enumeration.—3. Wilful murder, committed in any place under the exclusive jurisdiction of the United States,e or upon the high seas, or in any river, haven, basin or bay not within the jurisdiction of any particular state.f 4. Manslaughter committed in any place under the exclusive jurisdiction of the United States,g or upon the high seas.h 5. Robbery committed upon the high seas, or in any river, haven or bay not within the jurisdiction of any particular state.i 6. The piratical and felonious running away with any vessel, or with any goods to the value of fifty dollars, or yielding up such vessel voluntarily to any pirate, by any captain or mariner of such vessel.j 7. The laying of violent hands, by a seaman, upon his commander, in order to hinder his fighting in defence of his ship or goods committed to his trust.k 8. The making of a revolt in a ship by any seaman.l 9. Piracy or robbery (as specified in the law) or any act of hostility against the United States or a citizen thereof, committed by any citizen upon the high seas, on pretence of authority from any person, or under colour of a commission from a foreign prince or state.m 10. Confederacy with pirates.n 11. The false making, altering, forging, or counterfeiting of any certificate, indent, or other publick security of the United States.o 12. The causing or procuring of any certificate, indent, or other publick security of the United States to be falsely made, altered, forged, or counterfeited.p 13. Acting or assisting willingly in the false making, altering, forging, or counterfeiting of any such certificate, indent, or other publick security.q 14. The uttering, putting off, or offering, in payment or for sale, of any such false, forged, altered, or counterfeited certificate, indent, or other Edition: current; Page: [328] publick security, with intention to defraud any person, and with knowledge that the same is false, altered, forged, or counterfeited.r 15. The causing of any such false, forged, altered, or counterfeited certificate, indent, or other publick security to be uttered, put off, or offered, in payment or for sale, with the knowledge and intention already mentioned.s 16. The setting at liberty by force, and the rescuing of any person, convicted of a capital crime, or, before conviction, committed for a capital crime, or committed for or convicted of any other offence.t 17. Misprision of felony, which consists in knowing the commission of wilful murder or other felony upon the high seas, or within any fort, arsenal, dock yard, magazine, or other place or district of country under the sole and exclusive jurisdiction of the United States, and not disclosing it as soon as may be to some one of the judges or other person in civil or military authority under the United States.u 18. The cutting off of the ear, the cutting out or disabling of the tongue, the putting out of an eye, the slitting of the nose, the cutting off of the nose or a lip, the cutting off or disabling of any limb or member of any person, unlawfully, on purpose and of malice aforethought, and with intention, in so doing, to maim or disfigure such person: provided these crimes be committed in any place under the exclusive jurisdiction of the United States, or upon the high seas, in any vessel belonging to the United States or to any citizen of the United States.v 19. Perjury committed wilfully and corruptly on oath or affirmation in any suit or matter before any court, or in any deposition taken pursuant to a law, of the United States.w 20. The procuring of any person to commit corrupt and wilful perjury in any of the cases just mentioned.x 21. The giving, directly or indirectly, of any sum of money, or any other bribe, present, or reward, or any promise, contract, obligation, or security for the payment or delivery of any money, present, or reward, or any other thing, to procure the opinion, judgment, or decree of any judge of the United States in any suit or matter depending before him.y 22. The Edition: current; Page: [329] accepting by any judge of any such sum of money, bribe, present, reward, promise, contract, obligation, or security.z 23. Oppression or extortion by any supervisor or officer of inspection, in the execution of his office.a 24. The landing, in any place within the limits of the United States, of goods entered for exportation, with a view to draw back the duties.b 25. The resisting or impeding of any officer of the customs, or any person assisting him, in the execution of his duty.c 26. The resisting or opposing, knowingly and wilfully, of any officer of the United States in serving or attempting to serve process of any court of the United States: and the assaulting, beating, or wounding of any officer, or other person duly authorized, in serving or attempting to serve such process.d 27. The felonious stealing, taking away, altering, falsifying, or otherwise avoiding of any record, writ, process, or other proceeding in any court of the United States, by means whereof any judgment shall not take effect, or shall be reversed or made void.e 28. The acknowledging or procuring to be acknowledged, in any court of the United States, of any recognizance, bail, or judgment, in the name of any person not privy or consenting to it. There is an exception with regard to attornies duly admitted.f 29. Taking and carrying away, with an intent to steal or purloin the personal goods of another, upon the high seas, or in any place within the exclusive jurisdiction of the United States.g 30. The embezzling, purloining, or conveying away of any victuals provided for any soldiers, gunners, marines, or pioneers, or of any arms, ordnance, munition, shot, powder, or habiliments of war, belonging to the United States, by any person having the charge or custody thereof; provided such embezzling, purloining, or carrying away be for lucre, or willingly, advisedly and of purpose to impede the service of the United States.h 31. The suing forth, or prosecuting, or executing of any writ or process, by which the person of any publick foreign minister, received as such by the president of Edition: current; Page: [330] the United States, or any domestick or domestick servant of any such minister, may be arrested or imprisoned, or his goods seized.i 32. The violation of any safe conduct or passport duly obtained under the authority of the United States.j 33. The assaulting, striking, wounding, imprisoning, or, in any other manner, infracting the laws of nations by offering violence to the person of a publick minister.k

In the foregoing catalogue, murder, manslaughter, robbery, piracy, forgery, perjury, bribery, and extortion are mentioned as crimes and offences; but they are neither defined nor described. For this reason, we must refer to some preexisting law for their definition or description. To what preexisting law should this reference be made?

This is a question of immense importance and extent. It must receive an answer; but I cannot, in this address, assign my reasons for the answer which I am to give—The reference should be made to the common law.

To the common law, then, let us resort for the definition or description of the crimes and offences, which, in the laws of the United States, have been named, but have not been described or defined. You will, in this manner, gentlemen, he furnished with a legal standard, by the judicious application of which you may ascertain, with precision, the true nature and qualities of such facts and transactions as shall become the objects of your consideration and research.

In our law books, murder is thus described: it is when a person, of sound memory and of the age of discretion, unlawfully killeth any reasonable creature with malice aforethought, express or implied. Manslaughter is described as—the unlawful killing of another, without malice, either express or implied. The distinction strongly marked between murder and manslaughter is, that the former is committed with, the latter, without malice aforethought. It is essential, therefore, to know clearly and accurately the true and legal import of this characteristick distinction.

There is a very considerable difference between that sense, which is conveyed by the expression, malice, in common language, and that, to which the term is appropriated by the law. In common language, it is most frequently Edition: current; Page: [331] used to denote a sentiment or passion of strong malevolence to a particular person; or a settled anger and desire of revenge in one person against another. In law, it means the dictate of a wicked and malignant heart; of a depraved, perverse, and incorrigible disposition. Agreeably to this last meaning, many of the cases, which are arranged under the head of implied malice, will be found to turn upon this single point; that the fact has been attended with such circumstances—particularly the circumstances of deliberation and cruelty concurring—as betray the plain indications and genuine symptoms of a mind grievously depraved, and acting from motives highly criminal; of a heart regardless of social duty, and fatally bent upon mischief. This is the true notion of malice in the legal sense of the word. The mischievous and vindictive spirit denoted by it must always be collected and inferred from the circumstances of the transaction. On the circumstances of the transaction, the closest attention should, for this reason, be bestowed. Every circumstance may weigh something in the scale of justice.

Robbery is a felonious and violent taking, from the person of another, of money or goods to any value, putting him in fear. From this definition it appears, that to constitute a robbery, the three following ingredients are indispensable. 1. A felonious intention, or animus furandi. 2. Some degree of violence and putting in fear. 3. A taking from the person of another. Upon each of these three points there is much learned disquisition in the books of the law.

Piracy is robbery and depredation upon the high seas. The word pirate, says my Lord Coke,l in Latin pirata, is derived from the Greek word πειρατης, which is again fetched from πειραι a transcundo mari, or roving upon the sea; and, therefore, in English, a pirate is called a rover or robber upon the sea.

Piracy is a crime against the universal law of society: a pirate is hostis humani generis, an enemy of the whole human race. By declaring war against all mankind, he has laid all mankind under the necessity of declaring war against him. He has renounced the benefits and protection of government and society: he has abandoned himself to a savage state of Edition: current; Page: [332] nature. The consequence is, that, by the laws of selfdefence, every community has a right to inflict upon him that punishment, which, in a state of nature, every individual would be entitled to inflict for any invasion of his person or personal property.

“If any person,” says a law of the United States, “shall commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder, or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death.”m

Placed in the high and responsible office of a judge of the United States, I feel myself under an official obligation to state some doubts, which arise in my mind upon this part of the law. Impressed, as I ought to be, both as a citizen and a judge, with the strongest regard for the legislative authority of the United States, I propose those doubts most respectfully, and with the greatest degree of diffidence.

Piracy, as we have seen, is a crime against the universal law of society. By that law, it may be punished by every community. But the description of piracy, according to that law, is a robbery and depredation on the high seas. Is a murder, committed upon the high seas, a piracy within the description of that law? “If a pirate, at sea,n assault a ship, but, by force, is prevented entering her; and, in the attempt, the pirate kill a person in the other ship; they are all principals in such a murder, if the common law have jurisdiction of the offence; but by the law maritime, if the parties be known, they only who gave the wound shall be principals, and the rest, accessories.” From this authority and the foregoing description of piracy, taken jointly into our consideration, we might, perhaps, be naturally led to infer, 1. That a murder perpetrated in the attempt to commit a piracy, is not a piracy. 2. That this crime perpetrated in such an attempt, is, by the maritime law to be tried and punished as a murder, in which those, who all attempted the piracy, shall be considered as criminal in different degrees, according to the part, which they severally acted with regard to the homicide.

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The maritime law is not the law of any particular country: it is the general law of nations. “Non erit alia lex Romae, alia Athenis; alia nunc, alia posthac; sed et apud omnes gentes et omni tempore una eademque lex obtinebit.”o3

The law of nations has its foundation in the principles of natural law, applied to states; and in voluntary institutions, arising from custom or convention. This law is universal in its authority over the civilized part of the world; and is supported by the consideration of its general utility, as well as that of its obligatory force. This universal system has always been most liberally recognized in that country, from which we derive the boasted inheritance of the common law. According to the clear opinion declared by the great Lord Chancellor Talbot,4 the law of nations is, in its full extent, a part of the law of England.p

True it is, that, so far as the law of nations is voluntary or positive, it may be altered by the municipal legislature of any state, in cases affecting only its own citizens. True it is also, that, by a treaty, the voluntary or positive law of nations may be altered so far as the alteration shall affect only the contracting parties. But equally true it is, that no state or states can, by treaties or municipal laws, alter or abrogate the law of nations any farther. This they can no more do, than a citizen can, by his single determination, or two citizens can, by a private contract between them, alter or abrogate the laws of the community, in which they reside.

Now the doubts, to which I have alluded, appear directly before us. Is a person, not a citizen of the United States, who shall commit a murder upon the high seas, liable, under this law, to be deemed, taken and adjudged to be a pirate and felon, and, as such, to suffer death? This question may be divided into two subordinate ones. 1. Was it the intention of the legislature, that this law should extend, in its operation, to persons not citizens of the United States? In the very next section, the phrase is altered, and instead of saying, if any person shall commit, it is said, if any citizen shall Edition: current; Page: [334] commit any piracy, &c. Shall the construction be, that the legislature mean the same thing, when they use expressions so very different? 2. On the supposition, that the law was designed to extend, in its operation, to persons not citizens of the United States; can this design be carried into effect, consistently with the predominant authority of the law of nations, and of the universal law of society?

The case may very probably happen, and come before a grand jury for their official investigation. It was proper to suggest my doubts concerning it. I hope I have suggested them in the manner which I proposed to myself.

I return to the definitions and descriptions given, by the common law, of the crimes and offences mentioned, but not described or defined, in the laws of the United States.

To forge, says my Lord Coke, is metaphorically taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will. The offence is called crimen falsi; the crime of falsehood; and the offender, falsarius, a falsifier. And this is properly taken when the act is done in the name of another person.q With regard, however, to this last part of the description of forgery, it has been since adjudged repeatedly and very solemnly to be too narrow. It expresses, indeed, the most obvious meaning of the word, and comprehends that species of forgery which is most commonly practised; but there are other species, which will not come within the letter of that description. An alteration in the name or quantity of land conveyed, or in the sum of money secured, is of this kind, and comes within the legal notion of forgery.

Wilful and corrupt perjury is a crime committed, when a lawful oath is administered, in some judicial proceeding, by one who has authority, to a person who swears absolutely and falsely, in a matter material to the issue or cause in question.

“An oath,” says my Lord Coke, “is so sacred, and so deeply concerns the consciences of men, that it cannot be administered to any one, unless it be allowed by the common law, or by act of parliament; nor by any one, who has not authority by common law, or by act of parliament: neither can any oath, allowed by the common law, or by act of parliament, be altered, Edition: current; Page: [335] unless by act of parliament.”r For these reasons, it is much to be doubted whether any magistrate is justifiable in administering voluntary affidavits unsupported by the authority of law. It is more than possible, that, by such idle oaths, a man may frequently incur the guilt, though he evade the temporal penalties of perjury.

It is a part of the foregoing definition of perjury, that it must be when the person swears absolutely. In addition to this, it has been said, that the oath must be direct, and not, as the deponent thinks, or remembers, or believes.s This doctrine has, however, been lately questioned, and, it seems, on solid principles. When a man swears, that he believes what, in truth, he does not believe, he pronounces a falsehood as much as when he swears absolutely, that a thing is true, which he knows not to be true. My Lord Chief Justice De Grey,5 in a late case, said, that it was a mistake, which mankind had fallen into, that a person could not be convicted of perjury for deposing on oath, according to his belief.t It is certainly true, says my Lord Mansfield,6 that a man may be indicted for perjury, in swearing that he believes a fact to be true, which he must know to be false.u

Bribery is when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in office. He who offers or gives, as well as he who receives this undue reward, is guilty of an offence against the law.

Extortion, taken in a large sense, is any oppression by colour or pretence of right; but, in its proper sense, it is a great misprision, in wresting by any officer, under colour of his office, any money, either when none at all is due, or not so much is due, or when it is not yet due.

I have now enumerated, and, by references to the common law, have explained the crimes and offences known to the constitution and laws of the United States. It is next in order to consider the several punishments, which are annexed to those crimes and offences.

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These punishments are of seven different kinds: disqualification for office—fine—imprisonment—whipping—pillory—incapacity to give testimony—death. To some crimes more kinds of punishment than one are assigned. To resistance of the officers of the customs is annexed a fine.v To the landing of goods entered for exportation imprisonment is the punishment allotted.w To briberyx and extortiony the punishments of disqualification, fine, and imprisonment are assigned. To misprision of treason,z manslaughter,a misprision of felony,b atrocious maiming,c a confederacy with pirates,d resistance against process,e a rescue of persons not convicted of any capital crime,f serving process for arresting a publick minister,gthe violation of a safe conduct, and violence to the person of a publick minister,h are assigned the punishments of fine and imprisonment. Stealing or falsifying records, and fraudulently acknowledging bail, are punished with fine, imprisonment, and whipping.i Fine and whipping are the punishments annexed to larceny.j To perjury and subornation of perjury are allotted the punishments of fine, imprisonment, the pillory, and incapacity to give testimony.k

It deserves to be remarked, that, in every instance of punishment by fine, imprisonment, or whipping, limits are fixed on the side of severity; none, on the side of mercy.

Against forging,l against procuring or assisting to forge publick securities,m against uttering or causing to be uttered securities, which are Edition: current; Page: [337] forged,n against the rescue of persons convicted of capital crimes,o against piracy,p against robbery,q against acts of hostility as specified in the law,ragainst making a revolt in a ship, against violently hindering the captain of a vessel to fight in its defence, against piratically running away with any vessel,s against murder,t and against treason,u the punishment of death is denounced.

Accessories beforev the fact to murder, robbery, or other piracy upon the seas shall suffer death. Accessories afterw the fact shall be fined and imprisoned. Receivers of stolen goodsx shall be liable to like punishments as in the case of larceny.

It is proper to point out to a grand jury the kinds and the grades of punishments; because the respect due to the legislature will lead us to conclude, that there are similar kinds and well adjusted grades of crimes; because the probability of a crime is in the inverse proportion to its atrociousness; and because, of consequence, a grand jury will require a degree of evidence adequate to the criminality of every charge, which comes under their consideration.

No person shall be prosecuted for any capital crime, wilful murder or forgery excepted, unless the indictment for it shall be found within three years after its commission: nor shall any person be prosecuted for an offence not capital, or for a crime or forfeiture under a penal law, unless the indictment or information for it shall be found or instituted within two years after the commission of the offence, or after the fine or forfeiture has incurred. But these provisions shall not operate in favour of such as flee from justice.y

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One, who is indicted of treason, shall have, at least three days before his trial, a copy of the indictment, and a list, containing the names and places of abode, of the jurors and of the witnesses to be produced on the trial. A person indicted for any other capital crime shall have, at least two entire days before his trial, such a list of the jury, and a copy of the indictment.z

The trial of all crimes shall be by jury.a

Every one indicted shall be allowed to make his full defence by counsel learned in the law. The court, or a judge of the court, before whom he is to be tried, shall, on his request, assign him counsel, such as he shall desire, but not exceeding two; and his counsel shall have free access to him at all seasonable hours. He shall also be admitted to make, in his defence, any proof, which he can produce by witnesses: to compel the attendance of his witnesses at his trial he shall have legal process, similar to that, which is granted to compel witnesses to appear on the prosecution against him.b

No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.c

The benefit of clergy shall not be used or allowed, upon the conviction of any crime, for which, by any statute of the United States, the punishment is or shall be declared to be death.d

The manner of inflicting the punishment of death shall be by hanging the person convicted, by the neck, until dead.e

No conviction or judgment for any offence, yet punishable by the laws of the United States, shall work corruption of blood, or any forfeiture of estate.f

I have now, gentlemen, given you an account, plain and concise, and yet, I hope, not altogether imperfect, of the criminal code of the United States. It will be interesting and instructive to compare this code, in some of its most remarkable regulations, with that of some other country. For this comparison, I select the criminal code of England. I select it, because, in other parts of Europe, it has been proposed as a model, on account of Edition: current; Page: [339] its mildness; and because, contrasted with many systems of criminal law, it is, indeed, comparatively mild. “That the English system of jurisprudence has its abuses, I will readily agree,” says a writer of a nation long the rival of England; “but that it has fewer abuses than the system of any other civilized country, is what I am able to prove.”g

It is the opinion of some writers, highly respected for their good sense, as well as for their humanity, that capital punishments are, in no case, necessary. It is an opinion, which I am certainly well warranted in offering—that nothing but the most absolute necessity can authorize them. Another opinion I am equally warranted in offering—that they should not be aggravated by any sufferings, except those which are inseparably attached to a violent death.h It was worthy only of a tyranti—and of a tyrant it was truly characteristick—to give standing instructions to his executioners, that they should protract the expiring moments of the tortured criminal; and should manage the butchering business with such studied and slow barbarity, as that his powers of painful sensation should continue to the very last—ut mori se sentiat.7

Hear from the mouth of a celebrated lawyer—celebrated, however, for his learning, more than for his humanity—the sentence pronounced against treason by the law of England: hear this sentence, full of horrours, represented as flowing from admirable clemency and moderation.

At the trial of the conspirators in the gun powder plot, Sir Edward Coke concluded the part which he acted as attorney general, in the following very remarkable manner.

The conclusion shall be drawn from the admirable clemency and moderation of the king, in that, howsoever these traitors have exceeded all others their predecessors in mischief, yet neither will the king exceed the usual punishment of the law, nor invent any new torture or torment for them; but is graciously pleased to afford them as well an ordinary course of trial, as an ordinary punishment, much inferiour to their offence. And surely, worthy of observation is the punishment provided and appointed for high treason. For Edition: current; Page: [340] first, after a traitor hath had his just trial, and is convicted and attainted, he shall have his judgment to be drawn to the place of execution from his prison, as being not worthy any more to tread upon the face of the earth whereof he is made: also for that he hath been retrograde to nature, therefore he is to be drawn backward at a horse tail. And whereas God hath made the head of man his highest and most supreme part, as being his chief grace and ornament; he must be drawn with his head declining downward, and lying so near the ground as may be, being thought unfit to take the benefit of the common air. For which cause also he shall be strangled, being hanged up by the neck, between heaven and earth, as deemed unworthy of both, or either; as likewise that the eyes of men may behold, and their hearts contemn him. Then he is to be cut down alive: his bowels and inlayed parts taken out and burnt, who inwardly had conceived and harboured in his heart such horrible treason. After, to have his head cut off, which had imagined the mischief. And, lastly, his body to be quartered, and the quarters set up in some high and eminent place, to the view and detestation of men, and to become a prey for the fowls of the air. And this is a reward due to traitors.j

I relieve your feelings by a custom which was observed among the Jews. They gave wine mingled with myrrh to a criminal at the time of his execution, in order to produce a stupor, and deaden the sensibility of the pain.

By the constitution of the United States, no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. By the law of the United States, as it now stands, no judgment for any offence shall work corruption of blood or forfeiture of any estate.

In England, the forfeiture of a criminal’s personal estate accrues immediately upon his conviction of treason or felony. On his attainder for treason, he forfeits to the king all his lands of inheritance, and all his rights of entry to lands and tenements. On his attainder for felony, he forfeits his lands in fee simple to the crown for a year and a day; and the king may, within that time, commit what waste he pleases, by cutting timber, by ploughing meadows, by extirpating gardens, and by pulling down houses.

This uncivilized regulation, hostile to the genius of publick prosperity and improvement, is not, however, attended with any additional misfortune Edition: current; Page: [341] to the children of the prisoner. Their ruin is already completed by the corruption of their parent’s blood. This unnatural principle—I call it unnatural, because it dissolves, as far as human laws can dissolve, the closest and the dearest ties of nature—this unnatural principle effectually intercepts from them the descent of his lands of inheritance, which, after the king’s temporary right of forfeiture is satisfied, escheat to the lord of the fee.

Corruption of blood extends both upwards and downwards. A person attainted cannot inherit lands from his ancestors: he cannot transmit them to any heir: he even obstructs all descents to his posterity, whenever they must, through him, deduce their right from a more remote ancestor.

It has been alleged, in favour of forfeiture, that, since its effects extend to the family of the criminal as well as to himself, it will have a powerful operation to restrain a person from attempts against the state, not only by the fear of personal punishment, but also by his strongest natural affections. On a farther and closer investigation, however, it may, perhaps, be found, that this policy, as certainly it is not of the most generous, so neither is it of the most enlarged kind; since forfeitures, far from preventing, may have a tendency to multiply and to perpetuate offences and crimes.

When the law says, that the children of him, who has been guilty of crimes, shall be bereaved of all their hopes and all their rights of succession; that they shall languish in perpetual indigence and distress; that their whole life shall be one dark scene of unintermitted and unabating punishment; and that death alone shall provide for them a refuge from their misery—when such is the language, or such is the effect of the law; with what sentiments must it naturally inspire those, who are doomed to become its unfortunate, though unoffending objects? With sentiments of a deadly feud against the state, which has adopted, and which enforces it. To a law of this kind we may, with peculiar propriety, apply the maxim—une loi rigoreuse produit des crimes.8

In the United States, a period is assigned, beyond which crimes and offences, two excepted, cannot be prosecuted. This regulation is well calculated to establish and to preserve the security of individuals, and the tranquillity of the state. “Si post intervallum accusare (accusator) velit,” Edition: current; Page: [342] says Bracton,9 “non erit de jure audiendus, nisi docere poterit se fuisse justis rationibus impeditum.”k

The advantages of a copy of the indictment, of counsel at the trial, and of process to compel the appearance of the prisoner’s witnesses are enjoyed, in England, only in prosecutions for treason, but not in prosecutions for other crimes.

The greatness of those advantages may be easily estimated by contemplating the helpless, the forlorn and the anxious situation of a person, who is deprived of them in a trial for his life.

When the bill for regulating trials in cases of high treason was, in the reign of William the third, brought into parliament; that part of it, which allows counsel to the prisoner, was viewed, by the friends of freedom, as a matter of the last importance. The Lord Ashley,10 afterwards earl of Shaftesbury and author of the celebrated Characteristicks, was then a member of the house of commons. Actuated by that zeal for the principles of liberty, which accompanied him through life, he composed, as he was well qualified to compose, an excellent speech in support of that important provision. When he rose to deliver it, the great and respectable audience, before which he appeared, intimidated him to such a degree, that he lost his powers of recollection, and was incapable of pronouncing what he had previously prepared. The house, eager to hear him, waited with solicitude till he should recover from his embarrassment, and, after some time, called loudly upon him to proceed. He proceeded in this manner: “If I, sir,”—addressing himself to the speaker—“If I, sir, who rise only to give my opinion on the bill now depending, am so confounded, that I am unable to express the least of what I proposed to say; what must the condition of that man be, who, without any assistance, is pleading for his life?”l What must his condition be! Unacquainted with the nature and with the forms of the whole proceedings against him, unassisted by counsel, “baited by crown lawyers,” Edition: current; Page: [343] distracted by uncertainty and suspense, he finds a desperate but an eligible refuge in the awful verdict of conviction, which determines his fate.

Let us turn our eyes to a more pleasing prospect. How few are the crimes—how few are the capital crimes, known to the laws of the United States, compared with those known to the laws of England! Allowance, we own, should be made for the difference between the nature of the two governments; the objects of one being general; those of the other, enumerated. But after every allowance is made for this consideration, still we may justly say—how few are the crimes—how few are the capital crimes, known to the laws of the United States, compared with those known to the laws of England! When Sir William Blackstone11 wrote, no fewer than one hundred and sixty actions, which men are daily liable to commit, crowded the dismal list of felonies without benefit of clergy; in other words, felonies declared to be worthy of immediate death. Actions, almost inumerable, are doomed, by the same system, to severe, though inferiour penalties.

The co-acervation of sanguinary laws is a political distemper of the most inveterate and the most dangerous kind. By such laws the people are corrupted; and when corruption arises from the laws the evil may well be pronounced to be incurable; for it proceeds from the very source, from which the remedy should flow.

This comparison between the criminal laws of England and those of the United States might be carried much farther. The contrast would become still more and more striking; and, of course, the result would become still more and more satisfactory.

“How happy would mankind be,” says the eloquent and benevolent Beccaria,12m “if laws were now to be first formed!” The United States enjoy this singular happiness. Their laws are now first formed. They are formed by the legitimate representatives of free citizens and free states. Among those citizens and those states they now begin to be diffused. To those citizens and those states they are objects of the greatest and most extensive importance. I speak particularly concerning the criminal laws. It is on Edition: current; Page: [344] the excellence of the criminal laws, says the celebrated Montesquieu,n that the liberty of the citizens principally depends. The knowledge, continues he, which has been already acquired in some countries, and that which may be hereafter acquired in others, with regard to the surest rules which can be observed in criminal judgments, is more interesting to the human kind, than any thing else in the universe. It is only, adds he, on the practice of this knowledge that liberty can be founded.

With regard to an individual, every one knows how much his fortunes and his character, his infelicity or his happiness depend on his education. What education is to the individual, the laws are to the community. “Good laws,” says my lord Bacon, whose sentences are discourses, “make a whole nation to be as a well ordered college.”o With what earnestness should every nation—with what peculiar earnestness should that nation, which boasts of liberty as the principle of her constitution—with what peculiar earnestness should she endeavour, that her laws, especially her criminal laws, should be improved to a degree of perfection as high as human policy and human virtue can carry them!

We have already seen, that the noblest end and aim of criminal jurisprudence is to prevent crimes: and we have already seen that punishments, mild, speedy, and certain, are means calculated for preventing them. But these are not the only means. Crimes may be prevented by the genius as well as by the execution of the criminal laws. Let them be few: let them be clear: let them be be simple: let them be concise: let them be consummately accurate. Let the punishment be proportioned—let it be analogous—to the crime. Let the reformation as well as the punishment of offenders be kept constantly and steadily in view: and, while the dignity of the nation is vindicated, let reparation be made to those, who have received injury. Above all, let the wisdom, the purity, and the benignity of the civil code supersede, for they are well calculated to supersede, the severity of criminal legislation. Let the law diffuse peace and happiness; and innocence will walk in their train.

I offer no apology, gentlemen, for the nature or the length of this address. A sense of duty has drawn it from me. Every member of society should have it in his power to know when he is criminal and when he is Edition: current; Page: [345] innocent. His criminality and his innocence should be designated by the laws. The code of criminal laws, therefore, should, as far as possible, be in the hands of every citizen. In the situation, in which I have the honour to be placed, I deem it my duty to embrace every proper opportunity of disseminating the knowledge of them far and speedily. Can this be done with more propriety than in an address to a grand jury—to a grand jury summoned and returned for the body of an extensive district—a district so extensive and important as that of Virginia? These considerations induced me to lay before you an enumeration of the crimes and the punishments known to our constitution and laws. This I have endeavoured to do with the utmost conciseness.

But, if the laws deserve it, they should be the objects of affection as well as of knowledge. Thinking, as I think, concerning the high degree of regard, to which the criminal code of the United States has an undoubted claim, I am justified in expressing—I am obliged to express the principles, on which I conceive that claim to be founded. This I have likewise endeavoured to do with the utmost conciseness.

I mean not, however, to recommend to you an implicit and an undistinguishing approbation of the laws of your country. Admire; but admire with reason on your side.

If, for instance, you think, that the laws respecting the publick securities are more severe than is absolutely necessary for supporting their value and their credit; it will be no crime to express your thoughts decently and properly to your representatives in congress.

Permit me to suggest another method, by which our valuable code of criminal laws may be still increased in its value. Inform and practically convince every one within your respective spheres of action and intercourse, that, as excellent laws improve the virtue of the citizens, so the virtue of the citizens has a reciprocal and benign energy in heightening the excellence of the law.

How happy are the people, by whom the laws are known and rationally beloved! The rational love of the laws generates the enlightened love of our country. The enlightened love of our country is propitious to every virtue, which can adorn and exalt the citizen and the man.

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Hayburn’s Case, 2 U.S. 409 (1792), 411–414.

The Invalid Pension Act of 1792 required federal circuit courts (comprised of Supreme Court justices riding circuit and local federal district court judges) to hear claims by Revolutionary War veterans seeking federal benefits. Justices in other circuits agreed to hear claims, but Wilson, Iredell, and district judge Peters refused to do so. They sent the following letter to President Washington explaining why. Congress changed the law, excluding judges from this duty. Hayburn’s Case was considered by many contemporaries, and is thought by many scholars today, to be the first instance of a federal court declaring an act of Congress to be unconstitutional.

The Circuit court for the district of Pennsylvania, (consisting of Wilson, and Blair, Justices, and Peters,1 District Judge) made the following representation, in a letter jointly addressed to the President of the United States, on the 18th of April, 1792.

To you it officially belongs to “take care that the laws” of the United States “be faithfully executed.” Before you, therefore, we think it our duty to lay the sentiments, which, on a late painful occasion, governed us with regard to an act passed by the legislature of the union.

The people of the United States have vested in Congress all legislative powers “granted in the constitution.”

They have vested in one Supreme court, and in such inferior courts as the Congress shall establish, “the judicial power of the United States.”

It is worthy of remark, that in Congress the whole legislative power of the United States is not vested. An important part of that power was exercised by the people themselves, when they “ordained and established the Constitution.”

This Constitution is “the Supreme Law of the Land.” This supreme law “all judicial officers of the United States are bound, by oath or affirmation, to support.”

It is a principle important to freedom, that in government, the judicial should be distinct from, and independent of, the legislative department. To this important principle the people of the United States, in forming their Constitution, have manifested the highest regard.

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They have placed their judicial power not in Congress, but in “courts.” They have ordained that the “Judges of those courts shall hold their offices during good behaviour,” and that “during their continuance in office, their salaries shall not be diminished.”

Congress have lately passed an act, to regulate, among other things, “the claims to invalid pensions.”

Upon due consideration, we have been unanimously of opinion, that, under this act, the Circuit court held for the Pennsylvania district could not proceed;

1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the Constitution in the courts of the United States; the Circuit court must, consequently, have proceeded without constitutional authority.

2d. Because, if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controuled by the legislature, and by an officer in the executive department. Such revision and controul we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and, consequently, with that important principle which is so strictly observed by the Constitution of the United States.

These, Sir, are the reasons of our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary, either to the obvious directions of Congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, which we hope never to experience again.

The Circuit court for the district of North Carolina, (consisting of Iredell,2 Justice, and Sitgreaves,3 District Judge) made the following representation in a letter jointly addressed to the President of the United States, on the 8th of June, 1792.

We, the judges now attending at the Circuit court of the United States for the district of North Carolina, conceive it our duty to lay before you some important observations which have occurred to us in the consideration of an act of Congress lately passed, entitled “an act to provide for the settlement of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions.

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We beg leave to premise, that it is as much our inclination, as it is our duty, to receive with all possible respect every act of the Legislature, and that we never can find ourselves in a more painful situation than to be obliged to object to the execution of any, more especially to the execution of one founded on the purest principles of humanity and justice, which the act in question undoubtedly is. But, however lamentable a difference in opinion really may be, or with whatever difficulty we may have formed an opinion, we are under the indispensable necessity of acting according to the best dictates of our own judgment, after duly weighing every consideration that can occur to us; which we have done on the present occasion.

The extreme importance of the case, and our desire of being explicit beyond the danger of being misunderstood, will, we hope, justify us in stating our observations in a systematic manner. We therefore, Sir, submit to you the following:

1. That the Legislative, Executive, and Judicial departments, are each formed in a separate and independent manner; and that the ultimate basis of each is the Constitution only, within the limits of which each department can alone justify any act of authority.

2. That the Legislature, among other important powers, unquestionably possess that of establishing courts in such a manner as to their wisdom shall appear best, limited by the terms of the constitution only; and to whatever extent that power may be exercised, or however severe the duty they may think proper to require, the Judges, when appointed in virtue of any such establishment, owe implicit and unreserved obedience to it.

3. That at the same time such courts cannot be warranted, as we conceive, by virtue of that part of the Constitution delegating Judicial power, for the exercise of which any act of the legislature is provided, in exercising (even under the authority of another act) any power not in its nature judicial, or, if judicial, not provided for upon the terms the Constitution requires.

4. That whatever doubt may be suggested, whether the power in question is properly of a judicial nature, yet inasmuch as the decision of the court is not made final, but may be at least suspended in its operation by the Secretary at War, if he shall have cause to suspect imposition or mistake; this subjects the decision of the court to a mode of revision which we consider to be unwarranted by the Constitution; for, though Congress may certainly est