appeals are allowed from the inferior tribunals to the ſuperior, upon the whole queſtion; ſo that facts, as well as law, would be re-examined, and even new facts brought forward in the court of appeals; and to uſe the words of a very eminent Civilian, " The cauſe is many times another thing before the court of appeals, than what it was at the time of the firſt ſentence."
That this mode of proceeding is the one which muſt be adopted under this conſtitution, is evident form the following circumſtances; 1ſt. That the trial by jury; which is the grand characteriſtic of the common law is ſecured by the conſtitution, only in criminal caſes.--2d. That the appeal from both law and fact is expreſſly eſtabliſhed, which is utterly inconſiſtent with the principles of the common law, and trials by jury. The only mode in which an appeal from law and fact can be eſtabliſhed, is by adopting the principles and practice of the civil law; unleſs the United States ſhould be drawn into the abſurdity of calling and ſwearing juries, merely, for the purpoſe of contradicting the verdicts, which would render juries contemptible and worſe than uſeleſs.--3d. That the courts to be eſtabliſhed would decide on all caſes of law and equity, which is a well known characteriſtic of the civil law, and theſe courts would have conuſance not only of the laws of the United States and treaties, and of caſes affecting ambaſſadors, but of all caſes of admiralty and maritime juriſdiction, which laſt are matters belonging excluſively to the civil law, in every nation in Chriſtendom. Not to enlarge upon the loſs of the invaluable right of trial by an unbiaſſed jury, ſo dear to every friend of liberty, the monſtrous expence and inconveniences of the mode of proceedings to be adopted, are ſuch, as will prove intolerable to the people of this country. The lengthy proceedings of the civil law courts in the chancery of England, and in the courts of Scotland and France, are ſuch that few men of moderate fortune can endure the expence of; the poor man muſt therefore ſubmit to the wealthy. Length of purſe will too often prevail againſt right and juſtice. For inſtance, we are told by the learned judge Blackſtone, that a queſtion, only on the property of an ox, of the value of three guineas, originating under the civil law proceedings in Scotland, after many interlocutory orders and ſentences below, was carried at length from the court of ſeſſions, the higheſt court in that part of Great Britain, by way of appeal to the houſe of lords, where the queſtion of law and fact was finally determined. He adds, that no pique or ſpirit, could in the court of king's bench or common pleas at Weſtminſter, have given continuance to ſuch a cauſe for a tenth part of the time, nor have coſt a twentieth part of the expence. Yet the coſts in the courts of king's bench and common pleas in England, are infinitely greater than thoſe which the people of this country have ever experienced. We abhor the idea of loſing the tranſcendant privilege of trial by jury, with the loſs of which, it remarked by the ſame learned author, that in Sweden, the liberties of the commons were extinguiſhed by an ariſtocratic ſenate; and that trial by jury and the liberty of the people went out together. At the ſame time we regret the intolerable delay, the enormous expences and infinite vexation to which the people of this country will be expoſed from the voluminous proceedings of the courts of civil law and eſpecially from the appellate juriſdiction, by means of which a man may be drawn from the utmoſt boundaries of this extenſive country to the ſeat of the ſupreme court of the nation to contend, perhaps, with a wealthy and powerful adverſary. The conſequence of this eſtabliſhment will be an abſolute confirmation of the power of ariſtocratical influence in the courts of juſtice; for the common people will not be able to contend or ſtruggle againſt it. Trial by jury in criminal caſes may alſo be excluded by declaring that the libeller for inſtance ſhall be liable to an action of debt for a ſpecified ſum; thus evading the common law proſecution by indictment and trial by jury. And the common courſe of proceeding againſt a ſhip for breach of revenue laws by information (which will be claſſed among civil cauſes,) will, at the civil law be within the reſort of a court, where no jury intervenes. Beſides, the benefit of jury trial, in caſes of a criminal nature, which cannot be evaded, will be rendered of little value by calling the accuſed to anſwer far from home; there being no proviſion that the trial be by a jury of the neighbourhood or country. Thus an inhabitant of Pittſburgh; on a charge of crime committed on the banks of the Ohio, may be obliged to defend himſelf at the ſide of the Delaware, and ſo vice verſa. To conclude this head: We obſerve that the judges of the courts of Congreſs would not be independent, as they are not debarred from holding other offices, during the pleaſure of the preſident and ſenate, and as they may derive their ſupport in part from fees, alterable by the legiſlature. The next conſideration that the conſtitution preſents, is the undue and dangerous mixture of the powers of government; the ſame body a poſſeſſing legiſlative, executive, and judicial powers. The ſenate is a conſtituent branch of the legiſlature, it has judicial power in judging on impeachments, and in this caſe unites in ſome meaſure, the characters of judge and party, as all the principal officers are appointed by the preſident-general, with the concurrence of the ſenate, and therefore they derive their offices in part from the ſenate. This may biaſs the judgements of the ſenators and tend to ſkreen great delinquents from puniſhment. And the ſenate has, moreover, various and great executive powers, viz. in concurrence with the preſident-general, they form treaties with foreign nations that may controul and abrogate the conſtitutions and laws of the ſeveral ſtates. Indeed, there is no power, privilege or liberty of the ſtate governments, or of the people, but what may be affected by virtue of this power. For all treaties, made by them, are to be the "ſupreme law of the land, any thing in the conſtitution or laws of any ſtate, to the contrary notwithſtanding." And this great power may be exerciſed by the preſident and 10 ſenators, (being two-thirds of 14, which is a quorum of that body) what an inducement would this offer to the miniſters of foreign powers to compaſs by bribery ſuch conceſſions, as could not otherwiſe be obtained. It is the unvaried uſage of all free ſtates, whenever treaties interfere with the poſitive laws of the land, to make the intervention of the legiſlature neceſſary to give them operation. This became neceſſary and was afforded by the parliament of Great Britain, in conſequence of the late commercial treaty between that kingdom and France.- As the ſenate judges on impeachments, who is to try the members of the ſenate for the abuſe of this power! And none of the great appointments to office can be made without the conſent of the ſenate. Such various, extenſive, and important powers combined in one body of men, are inconſiſtent with all freedom; the celebrated Monteſquieu tells us, that "when the legiſlative and executive powers are united in the ſame perſon, or in the ſame body of magiſtrates, there can be no liberty, becauſe apprehenſions may ariſe, leſt the ſame monarch or ſ{Omitted text} e ſhould enact tyrannical laws, to execute them [in?] a tyrannical manner." "Again, there is no liberty, if the power of judging be not ſeparated rom the legiſlative and executive powers. Were it joined with the legiſlative, the life and liberty of the ſubject, would be expoſed to arbitrary controul; for the judge would then be legiſlator. Were it joined to the executive power, the judge might behave with all the violence of an oppreſſor. There would be an end of everything, were the ſame man, or the ſame body of the nobles, or of the people, to exerciſe theſe three powers; that of enacting laws; that of executing the public reſolutions; and that of judging the crimes or differences of individuals." The preſident general is dangerouſly connected with the ſenate, his coincidence with the views of the ruling junto in that body,is made eſſential to his weight and importance in the government, which will deſtroy all independency and purity in the executive department, and having the power of pardoning without the concurrence of a council, he may ſkreen from puniſhment the moſt treaſonable attempts that may be made on the liberties of the people, when inſtigated by his coadjutors in the ſenate. Inſtead of this dangerous and improper mixture of the executive with the legiſlative and judicial, the ſupreme executive powers ought to have been placed in the preſident, with a ſmall independent council, made perſonally reſponſible for every appointment to office, or other act, by having their opinions recorded; and that without the concurrence of the majority of the quorum of this council, the preſident ſhould not be capable of taking any ſtep. We have before conſidered internal taxation, as it would effect the deſtruction of the ſtate governments, and produce on conſolidated government. We will now conſider that ſubject as it affects the perſonal concerns of the people. The power of direct taxation applies to every individual, as congreſs under this government is expreſſly veſted with the authority of laying a capitation or poll-tax upon every perſon to any amount. This is a tax that, however oppreſſive in its nature, and unequal in its operation, is certain as to its produce and ſimple in it collection; it cannot be evaded like the objects of impoſts or exciſe, and will be paid, becauſe all that a man hath will he give for his head. This tax is ſo congenial to the nature of deſpotiſm, that it has ever been a favorite under ſuch governments. Some of thoſe who were in the late general convention from this ſtate, have long labored to introduce a poll-tax among us. The power of direct taxation will further apply to every individual, as congreſs may tax land, cattle, trades, occupations, &c. to any amount, and every object of internal taxation is of that nature, that however oppreſſive, the people will have but this alternative, either to pay the tax, or let their property be taken for all reſiſtance will be vain. The ſtanding army and ſelect militia would enforce the collection. For the moderate exerciſe of this power, there is no controul left in the ſtate governments, whoſe intervention is deſtroyed. No relief, or redreſs of grievances can be extended, as heretofore by them. There is not even a declaration of RIGHTS to which the people may appeal for the vindication of their wrongs in the courts of juſtice. They muſt therefore, implicitly, obey the moſt arbitrary laws, as the worſt of them, will be purſuant to the principles and form of the conſtitution, and that ſtrongeſt of all checks upon the conduct of adminiſtration,reſponſibility to the people, will not exiſt in this government. The permanency of the appointments of ſenators and repreſentatives, and the controul the congreſs have over their election, will place them independent of the ſentiments and reſentment of the people, and the adminiſtration having a greater intereſt in the government than in the community, there will be no conſideration to reſtrain them from oppreſſion and tyranny. In the government of this ſtate, under the old confederation, the members of the legiſlature are taken from among the people and their intereſts and welfare are ſo inſeparably connected with thoſe of their conſtituents, that they can derive no advantage from oppreſſive laws and taxes, for they would ſuffer in common with their fellow citizens; would participate in the burthens they impoſe on the community, as they muſt return to the common level, after a ſhort period; and notwithſtanding every exertion of influence, every means of corruption, a neceſſary rotation excludes them from permanency in the legiſlature. This large ſtate is to have but ten members in that congreſs which is to have the liberty, property and deareſt concerns of every individual of this vaſt country at abſolute command; and ever theſe ten perſons, who are to be our only guardians; who are to ſupercede the legiſlature of Pennſylvania, will not be of the choice of the people, nor amenable to them. From the mode of their election and appointment they will conſiſt of the lordly and high-minded; of men who will have no congenial feelings with the people, but a perfect indifference for, and contempt of them, they will conſiſt of thoſe harpies of power, that prey upon the very vitals; that riot on the miſeries of the community. But we will ſuppoſe, although in all probability it may never be realiſed in fact, that our deputies in congreſs have the welfare of their conſtituents at heart, and will exert themſelves in their behalf, what ſecurity could even this afford; what relief could they extend to their oppreſſed conſtituentſ? To attain this, the majority of the deputies of the twelve other ſtates in congreſs muſt be alike well diſpoſed; muſt alike forego the ſweets of power, and relinquiſh the purſuits of ambition, which from the nature of things is not to be expected. If the people part with a reſponſible repreſentation in the legiſlature, founded upon fair, certain and frequent election, they have nothing left they can call their own. Miſerable is the let of that people whoſe every concern depends on the WILL and PLEASURE of their rulers. Our ſoldiers will become Janiſſaries, and our officers of government Baſhaws; in the ſhort the ſyſtem of deſpotiſm would ſoon be compleated. From the foregoing inveſtigation, it appears that the congreſs under this conſtitution, will not poſſeſs the confidence of the people, which is an eſſential requiſite in a good government; for unleſs the laws command the confidence and reſpect of the great body of the people, ſo as to induce them to ſupport them, when called on by the civil magiſtrate, they muſt be executed by the aid of a numerous ſtanding army, which would be inconſiſtent with every idea of liberty; for the ſame force that may be employed to compel obedience to good laws, might and probably would be uſed to wreſt from the people their conſtitutional liberties. The framers of this conſtitution appear to have been aware of this great deficiency; to have been ſenſible that no dependence could be placed on the people for their ſupport: but on the contrary, that the government muſt be executed by force. They have therefore, made a proviſion for this purpoſe in a permanent STANDING ARMY, and a MILITIA that may be ſubjected to a ſtrict diſcipline and government. A ſtanding army in the hands of a government placed ſo independent of the people, may be made a fatal inſtrument to overturn the public liberties; it may be employed to enforce the collection of the moſt oppreſſive taxes, and to carry into execution the moſt arbitrary meaſures. An ambitious man who may have the army at his devotion, may ſtep up into the throne, and ſeize upon abſolute power. The abſolute unqualified command that congreſs have over the militia may be made inſtrumental to the deſtruction of all liberty, both public and private; whether of a perſonal, civil, or religious nature. Firſt, The perſonal liberty of every man probably from ſixteen to ſixty years of age, may be deſtroyed by the power congreſs have in organizing and governing of the militia. As militia they may be ſubjected to fines to any amount, levied in a military manner; they may be ſubjected to corporal puniſhments of the moſt diſgraceful and humiliating kind, and to death itſelf by the ſentence of a court martial: To this our young men will be more immediately ſubjected, as a ſelect militia, compoſed of them, will beſt anſwer the purpoſes of government. Secondly, The rights of conſcience maybe violated, as there is no exemption of thoſe perſons, who are conſcientiouſly ſcrupulous of bearing arms. Theſe compoſe a reſpectable proportion of the community in the ſtate. This is the more remarkable, becauſe even when the diſtreſſes of the late war, and the evident diſaffection of many citizens of that deſcription, inflamed our paſſions, and when every perſon, who was obliged to riſque his own life, muſt have been exaſperated, againſt ſuch as on any account kept back from the common danger, yet even then, when outrage and violence might have been expected, the rights of conſcience were held ſacred. At this momentous criſis, the framers of our ſtate conſtitution, made the moſt expreſs and decided declaration and ſtipulations in favor of the rights of conſcience: but now when no neceſſity exiſts, thoſe deareſt rights of men are left inſecure. Thirdly, the abſolute command of congreſs over the militia, may be deſtructive of public liberty; for under the guidance of an arbitrary government, they may be made the unwilling inſtruments of tyranny. The militia of Pennſylvania may be march to New-England or Virginia to quell an inſurrection occaſioned by the moſt galling oppreſſion, and aided by the ſtanding army, they will, no doubt, be ſucceſſful in ſubduing their liberty and independency; but in ſo doing, although the magnanimity of their minds will be extinguiſhed, yet the meaner paſſions of reſentment and revenge will be encreaſed, and thoſe in turn will be the ready and obedient inſtruments of deſpotiſm to enſlave the others; and that with an irritated vengeance. Thus may the militia be made the inſtruments of cruſhing the laſt efforts of expiring liberty, of rivetting the chains of deſpotiſm on their fellow citizens and on one another. This power can be exerciſed not only without violating the conſtitution but in ſtrict conformity with it, it is calculated for this expreſs purpoſe, and will doubtleſs be executed accordingly. As this government will not enjoy the confidence of the people, but be executed by force, it will be a very expenſive and burthenſome government. The ſtanding army muſt be numerous, and as a further ſupport, it will be the policy of this government to multiply officers in every department; judges, collectors, tax-gathers, exciſemen, and the whole hoſt of revenue officers will ſwarm over the land, devouring the hard earnings of the induſtrious. Like the locuſts of old, impoveriſhing and deſolating all before them. We have not noticed the ſmaller, nor many of the conſiderable blemiſhes, but have confined our objections to the great and eſſential defects; the main pillars of the conſtitution; which we have ſhewn to be inconſiſtent with the liberty and happineſs of the people, as its eſtabliſhment will annihilate the ſtate governments, and produce one conſolidated government that will eventually and ſpeedily iſſue in the ſupremacy of deſpotiſm. In this inveſtigation, we have not confined our view to the intereſts or welfare of this ſtate, in preference to the others. We have over looked all local circumſtanceſ--we have conſidered this ſubject on the broad ſcale of the general good; we have aſſerted the cauſe of the preſent and future ages; the cauſe of liberty and mankind. Nathaniel Breading,..........John Ludwig, John Smilie,..........Abraham Lincoln, Richard Baird,..........John Biſhop, Adam Orth,..........Joſeph Heiſter, John A. Hanna,..........Joſeph Powel, John Whitehill,..........James Martin, John Harris,..........William Findley, Robert Whitehill,..........John Baird, John Reynolds,..........James Edgar, Jonathan Hoge,..........William Todd, Nicholas Lutz, The yeas and nays upon the final vote were as follows, viz. YEAS...........YEAS. George Latimer,..........John Hubley, Benjamin Ruſh,..........Jaſper Yates, Hilary Baker,..........Henry Slagle, James Wilſon,..........Thomas Campbell, Thomas M'Kean,..........Thomas Hartley, William M'Pherſon,..........David Grier, John Hunn,..........John Black, George Gray,..........Benjamin Pedan, Samuel Aſhmead,..........John Arndt, Enoch Edwards,..........Stephen Balliott, Henry Wynkoop,..........Joſeph Horſefield, John Barclay,..........David Deſhler, Thomas Yardley,..........William Wilſon, Abraham Stout,..........John Boyd, Thomas Bull,..........Thomas Scott, Anthony Wayne,..........John Nevill, William Gibbons,..........John Alliſon, Richard Downing,..........Jonathan Roberts, Thomas Cheyney,..........John Richards John Hannah,..........F.A. Muhlenberg, Stephen Chambers,..........James Morris, Robert Coleman,..........Timothy Pickering, Sebaſtian Graff,..........Benjamin Elliot, ..........46 NAYS. NAYS. John Whitehill,..........William Findley, John Harris,..........John Baird, John Reynolds,..........William Todd, Robert Whitehill,..........James Marſhall, Jonathan Hoge,..........James Edgar, Nicholas Lutz,..........Nathaniel Breading. John Ludwig,..........John Smilie, Abraham Lincoln,..........Richard Baird, John Biſhop,..........William Brown, Joſeph Heiſler,..........Adam Orth, James Martin,..........John Andre Hannah, Joſeph Powell,..........23 Philadelphia, December 12, 1787. [Philadelphia: Printed by E. Oſwald, at the [Coffee-Houſe.]
