Page:Dissent of the Minority at the Pennsylvania Constitutional Convention.djvu/2

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ence; and alſo that the judges be made completely independent.

Thirteenth. That no treaty which ſhall be directly oppoſed to the exiſting laws of the United States in Congreſs aſſembled, ſhall be valid until ſuch laws ſhall be repealed or made conformable to ſuch treaty; neither ſhall any treaties be valid which are in contradiction to the conſtitution of the United States, or the conſtitutions of the ſeveral ſtates.

Fourteenth. That the judiciary power of the United States ſhall be confined to caſes affecting ambaſſadors, other public miniſters and conſuls; to caſes of admiralty and maritime juriſdiction; to controverſies to which the United States ſhall be a party; to controverſies between two or more ſtateſ—between a ſtate and citizens of different ſtateſ—between citizens claiming lands under grants of different ſtates; and between a ſtate or the citizens thereof and foreign ſtates; and in criminal caſes to ſuch only as are expreſſly enumerated in the conſtitution, and that the United States in Congreſs aſſembled, ſhall not have power to enact laws, which ſhall alter the laws of deſcents and diſtribution of the effects of deceaſed perſons, the titles of land or goods, or the regulation of contracts in the individual ſtates.

After reading theſe propoſitions, we declared our willingneſs to agree to the plan, provided it was ſo amended as to meet thoſe propoſitions, or ſomething ſimilar to them: and finally move the convention to adjourn, to give the people of Pennſylvania time to conſider the ſubject, and determine for themſelves; but theſe were all rejected, and the final vote was taken, when our duty to you induced us to vote againſt the propoſed plan, and to decline ſigning the ratification of the ſame.

During the diſcuſſion we met with many inſults, and ſome perſonal abuſe; we were not even treated with decency, during the ſitting of the convention, by the perſons in the gallery of the houſe; however, we flatter ourſelves that in contending for the preſervation of thoſe invaluable rights you have thought proper to commit to our charge, we acted with ſpirit becoming freemen, and being deſirous that you might know the principles which actuated our conduct, and being prohibited from inſerting our reaſons of diſſent on the minutes of the convention, we have ſubjoined them for your conſideration, as to you alone we are accountable. It remains with you whether you will think thoſe ineſtimable privileges, which you have ſo ably contended for, ſhould be ſacrificed at the ſhrine of deſpotiſm, or whether you mean to contend for them with the ſame ſpirit that has often baffled the attempts of an ariſtocratic faction, to rivet the ſhackles of ſlavery on you, and your unborn poſterity.

Our objections are compriſed under three general heads of diſſent, viz.

WE DISSENT, Firſt, Becauſe it is the opinion of the moſt celebrated writers on government, and confirmed by uniform experience, that very extenſive territory cannot be governed on the principles of freedom, otherwiſe than by a confederation of republics, poſſeſſing all the powers of internal government; but united in the management of their general, and foreign concerns.

If any doubt could have been entertained of the truth of the foregoing principle, it has been fully removed by the conceſſion of Mr. Wilſon, one of the majority on this queſtion, and who was one of the deputies in the late general convention. In juſtice to him, we will give his own words; they are as follows, viz. "The extent of country for which the new conſtitution was required; produced another difficulty in the buſineſs of the federal convention. It is the opinion of ſome celebrated writers, that to a ſmall territory, the democratical; to a middling territory (as Monteſquieu has termed it) the monarchical; and to an extenſive territory, the deſpotic form of government, is beſt adapted. Regarding then the wide and almoſt unbounded juriſdiction of the United States, at firſt view, the hand of deſpotiſm ſeemed neceſſary to controul, connect, and protect it; and hence the chief embarraſſment roſe. For, we knew that, although our conſtituents would chearfully ſubmit to the legiſlative reſtraints of a free government, they would ſpurn at every attempt to ſhackle them with deſpotic power."—And again in another part of his ſpeech he continues.—"Is it probable that the diſſolution of the ſtate governments, and the eſtabliſhment of one conſolidated empire would be eligible in its nature, and ſatiſfactory to the people in its adminiſtration? I think not, as I have given reaſons to ſhew that ſo extenſive a territory could not be governed, connected, and preſerved, but by the ſupremacy of deſpotic power. All the exertions of the moſt potent emperors of Rome were not capable of keeping that empire together, which in extent was far inferior to the dominion of America."

We diſſent, ſecondly, becauſe the powers veſted in Congreſs by this conſtitution, muſt neceſſarily annihilate and abſorb the legiſlative, executive, and judicial powers of the ſeveral ſtates, and produce from their ruins one conſolidated government, which from the nature of things will be an iron handed deſpotiſm, as nothing ſhort of the ſupremacy of deſpotic ſway could connect and govern theſe United States under one government.

As the truth of this poſition is of ſuch deciſive importance, it ought to be fully inveſtigated, and if it is founded to be clearly aſcertained; for, ſhould demonſtrated, that the powers veſted by this conſtitution in Congreſs, will have ſuch an effect, as neceſſarily to produce one conſolidated government, the queſtion then will be reduced to this ſhort iſſue, viz. whether ſatiated with the bleſſings of liberty; whether repenting of the folly of ſo recently aſſerting their unalienable rights, againſt foreign deſpots, at the expence of ſo much blood and treaſure, and ſuch painful and arduous ſtruggles, the people of America are now willing to reſign every privilege of freemen, and ſubmit to the domination of an abſolute government, that will embrace all America in one chain of deſpotiſm; or whether they will with virtuous indignation, ſpurn at the ſhackles prepared for them, and confirm their liberties by a conduct becoming freemen.

That the new government will not be a confederacy of ſtates, as it ought, but one conſolidated government, founded upon the deſtruction of the ſeveral governments of the ſtates, we ſhall now ſhew.

The powers of Congreſs under the new conſtitution, are compleat and unlimited over the purſe and the ſword, and are perfectly independent of, and ſupreme over, the ſtate governmentſ: whoſe intervention in theſe great points is entirely deſtroyed. By virtue of their power of taxation, Congreſs may command the whole, or any part of the property of the people. They may impoſe what impoſts upon commerce; they may impoſe what land-taxes, poll-taxes, exciſes, duties on all written inſtruments, and duties on every other article that may judge proper; in ſhort, every ſpecies of taxation, whether of an external or internal nature is compriſed in ſection the 8th, of article the 1ſt, viz. "The Congreſs ſhall have power to lay and collect taxes, duties, impoſts, and exciſes, to pay the debts, and provide for the common defence and general welfare of the United States."

As there is no one article of taxation reſerved to the ſtate governments, the Congreſs may monopoliſe every ſource of revenue, and thus indirectly demoliſh the ſtate governments, for without funds they could not exiſt, the taxes, duties and exciſes impoſed by Congreſs may be ſo high as to render it impracticable to levy further ſums on the ſame articles; but whether this ſhould be the caſe or not, if the ſtate governments ſhould preſume to impoſe taxes, duties or exciſes, on the ſame articles with Congreſs, the latter may abrogate and repeal the laws whereby they are impoſed, upon the allegation that they interfere with the due collection of their taxes, duties or exciſes, by virtue of the following clauſe, part of ſection 8th, article 1ſt, via. "To make all laws which ſhall be neceſſary and proper for carrying into execution the foregoing powers, and all other powers veſted by this conſtitution in the government of the United States, or in any department or officer thereof." The congreſs might gloſs over this conduct by conſtruing every purpoſe for which the ſtate legiſlatures now lay taxes, to be for the "general welfare," and therefore as of their juriſdiction. And the ſupremacy of the laws of the United States is eſtabliſhed by article 6th, viz. "That this conſtitution and the laws of the United States, which ſhall be made in purſuance thereof, and all treaties made, or which ſhall be made, under the authority of the United States, ſhall be the ſupreme law of the land, and the judges in every ſtate ſhall be bound thereby, any thing in the conſtitution or laws of any ſtate to be contrary notwithſtanding." It has been alledged that the words "purſuant to the conſtitution," are a reſtriction upon the authority of Congreſs; but when it is conſidered that by other ſections they are inveſted with every efficient power of government, and which may be exerciſed to the abſolute deſtruction of the ſtate governments, without any violation of ever the forms of the conſtitution, this ſeeming reſtriction, as well as every other reſtriction in it, appears to us to be nugatory and deluſive; and only introduced as a {Omitted text} nd upon the real nature of the government. In our opinion, "purſuant to the conſtitution," will be co-extenſive with the will and pleaſure of Congreſs, which, indeed, will be the only limitation of their powers. We apprehend, that two co-ordinate ſovereignties would be a ſoleciſm in politics. That therefore there is no line of diſtinction drawn between the general, and ſtate governments; as the ſphere of their juriſdiction is undefined; it would be contrary to the nature of things, that both ſhould exit together, one or the other would neceſſarily triumph in the fullneſs of dominion. However the conteſt could not be of long continuance, as the ſtate governments are diveſted of every means of defence, and will be obliged by "the ſupreme law of the land" to yield at diſcretion. It has been objected to this total deſtruction of the ſtate governments, that the exiſtence of their legiſlatures is made eſſential to the organization of Congreſs; that they muſt aſſemble for the appointment of the ſenators and preſident general of the United States. True, the ſtate legiſlatures may be continued for ſome years, as boards of appointment, merely, after they are diveſted of every other function; but the framers of the conſtitution foreſeeing that the people will ſoon be diſguſted with this ſolemn mockery of a government without power and uſefulneſs, have made a proviſion for relieving them from the impoſition, in ſection 4th, of article 1ſt, viz. " The times, places, and manner of holding elections for ſenators and repreſentatives, ſhall be preſcribed in each ſtate by legiſlature thereof;but the Congreſs may at any time, by law make or alter ſuch regulations; except as to the place of chuſing ſenators. As Congreſs have the controul over the time of the appointment of the preſident general, of the ſenators and of the repreſentatives of the United States, they may prolong their exiſtence in office, for life, by poſtponing the time of their election and appointment, from period to period, under various pretences, ſuch, as an apprehenſion of invaſion, the factious diſpoſition of the people, or any other plauſible pretence that the occaſion may ſuggeſt; and having thus obtained the life-eſtates in the government, they may fill up the vacancies themſelves, by their controul over the mode of appointment; with this exception in regard to the ſenators, that as the place of appointment for them, muſt, by the conſtitution, be in the particular ſtate, they may depute ſome body in the reſpective ſtates, to fill up the vacancies in the ſenate, occaſioned by death, until they can venture to aſſume it themſelves. In this manner, may the only reſtriction in this cauſe, be evaded. By virtue of the foregoing ſection, when the ſpirit of the people ſhall be gradually broken; when the general government ſhall be firmly eſtabliſhed, and when a numerous ſtanding army ſhall render oppoſition vain, the Congreſs may compleat the ſyſtem of deſpotiſm, in renouncing all dependance on the people, by continuing themſelves, and children in the government. The celebrated Monteſquieu, in his Spirit of Laws, vol. 1, page 12th, ſays " That in a democracy there can be no exerciſe of ſovereignty, but by the ſuffrages of the people, which are their will; now the ſovereigns will is the ſovereign himſelf; the laws therefore, which eſtabliſh the right of ſuffrage, are fundamental to this government. In fact it is as important to regulate in a republic in what manner, by whom, and concerning what, ſuffrages are to be given, as it is in a monarch to know who is the prince, and after what manner he ought to govern." The time, mode, and place of the election of repreſentatives, ſenators and preſident general of the United States, ought not to be under the controul of Congreſs, but fundamentally aſcertained an eſtabliſhed. The new conſtitution, conſiſtently with the plan of conſolidation, contains no reſervation of the rights and priviledges of the ſtate governments, which was made in the confederation of the year 1778, by article the 2d, viz. "That each ſtate retains its ſovereignty, freedom and independence, and every power, juriſdiction and right, which is not by this confederation expreſſly delegated to the United States in Congreſs aſſembled." The legiſlative power veſted in Congreſs by the foregoing recited ſections, is ſo unlimited in its nature; may be ſo comprehenſive and boundleſs in its exerciſe, that this alone would be amply ſufficient to annihilate the ſtate governments, and ſwallow them up in the grand vortex of general empire. The judicial powers veſted in Congreſs are alſo ſo various and extenſive, that by legal ingenuity they may be extended to every caſe, and thus abſorb the ſtate judiciaries, and when to conſider the deciſive influence that a general judiciary would have over the civil polity of the ſeveral ſtates, we do not heſitate to pronounce that this power, unaided by the legiſlative, would effect a conſolidation of the ſtates under one government. The powers of a court of equity, veſted by this conſtitution, in the tribunals of Congreſs; powers which do not exiſt in Pennſylvania, unleſs ſo far as they can be incorporated with jury trial, would, in this ſtate, greatly contribute to this event. The rich and wealthy ſuitors would eagerly lay hold of the infinite mazes, perplexities and delays, which a court of chancery, with the appellate powers of the ſupreme court in fact as well as law would furniſh him with, and thus the poor man being plunged in the bottomleſs pit of legal diſcuſſion, would drop his demand in deſpair. In ſhort, conſolidation pervades the whole conſtitution. It begins with an annunciation that ſuch was the intention. The main pillars of the fabric correſpond with it, and the concluding paragraph is a confirmation of it—The preamble begins with the words, "We the people of the United States," which is the ſtyle of a compact between individuals entering into a ſtate of ſociety, and not that of a confederation of ſtates. The other features of conſolidation, we have before noticed. Thus we have fully eſtabliſhed the poſition, that the powers veſted by this conſtitution in Congreſs, will effect a conſolidation of the ſtates under one government, which even the advocates of this conſtitution admit, could not be done, without the ſacrifice of all liberty. 3. We diſſent, Thirdly, Becauſe if it were practicable to govern ſo extenſive a territory as theſe United States, includes, on the plan of a conſolidated government, conſiſtent with the principles of liberty and the happineſs of the people, yet the conſtruction of this conſtitution is not calculated to attain the object, for independent of the nature of the caſe, it would of itſelf, neceſſarily, produce a deſpotiſm, and that not by the uſual gradations, but with the celerity that has hitherto only attended revolutions affected by the ſword. To eſtabliſh the truth of this poſition, a curſory inveſtigation of the principles and form of this conſtitution will ſuffice. The firſt conſideration that this review ſuggeſts, is the omiſſion of a BILL OF RIGHTS, aſcertaining and fundamentally eſtabliſhing thoſe unalienable and perſonal rights of men, without the full, free and ſecure enjoyment of which there can be no liberty, and over which it is not neceſſary for a good government to have the controul. The principal of which are the rights of conſcience, perſonal liberty by the clear and unequivocal eſtabliſhment of the writ of habeas corpus, jury trial in criminal and civil caſes, by an impartial jury of the vicinage or county, with the common law proceedings, for the ſafety of the accuſed in criminal proſecutions; and the liberty of the preſs, that ſcourge of tyrants, and the grand bulwark of every other liberty and privilege: the ſtipulations heretofore made in favour of them in the ſtate conſtitutions, are entirely ſuperceded by this conſtitution. The legiſlature of a free country ſhould be ſo formed as to have a competent knowledge of its conſtituents, and enjoy their confidence.—To produce theſe eſſential requiſites, the repreſentation ought to be fair, equal and ſufficiently numerous, to poſſeſs the ſame intereſts, feelings, opinions and views, which the people themſelves would poſſeſs, were they all aſſembled; and ſo numerous as to prevent bribery and undue influence, and ſo reſponſible to the people, by frequent and fair elections, as to prevent their neglecting, or ſacrificing the views and intereſts of their conſtituents, to their own purſuits. We will now bring the legiſlature under this conſtitution to the teſt of the foregoing principles, which will demonſtrate, that it is deficient in every eſſential quality of a juſt and ſafe repreſentation. The houſe of repreſentatives is to conſiſt of 65 members; that is one for every 50,000 inhabitants, to be choſen every two years. Thirty-three members will form a quorum for doing buſineſs, and ſeventeen of theſe, being the majority, determine the ſenſe of the houſe. The ſenate, the other conſtituent branch of the legiſlature, conſiſts of 26 members, being two from each ſtate, appointed by their legiſlatures every ſix yearſ—fourteen ſenators make a quorum; the majority of whom, eight, determines the ſenſe of that body: except in judging on impeachments, or in making treaties, or in expelling a member, when two thirds of the ſenators preſent, muſt concur. The preſident is to have the controul over the enacting of laws, ſo far as to make the concurrence of two thirds of the repreſentatives and ſenators preſent neceſſary, if he ſhould object to the laws. Thus it appears, that the liberties, happineſs, intereſts, and great concerns, of the whole United States, may be dependent upon the integrity, virtue, wiſdom. and knowledge of 25 or 26 men. How inadequate and unſafe a repreſentation! Inadequate, becauſe the ſenſe and views of 3 or 4 millions of people diffuſed over ſo extenſive a territory, compriſing ſuch various climates, products, habits, intereſts, and opinions, can not be collected in ſo ſmall a body; and beſides, it is not a fair and equal repreſentation of the people, even in proportion to its number, for the ſmalleſt ſtate has as much weight in the ſenate as the largeſt, and from the ſmalleſt of the number to be choſen for both branches of the legiſlature; and from the mode of election and appointment; which is under the controul of Congreſs; and from the nature of the thing, men of the moſt elevated rank in life, will alone be choſen. The other orders in the ſociety, ſuch as farmers, traders, and mechanics, who all ought to have a competent number of their beſt informed men in the legiſlature, will be totally unrepreſented. The repreſentation is unſafe, becauſe in the exerciſe of ſuch great powers and truſts, it is ſo expoſed to corruption and undue influence, by the gift of the numerous places of honor and emolument, at the diſpoſal of the executive; by the arts and addreſs of the great and deſigning; and by direct bribery. The repreſentation is moreover inadequate and unſafe, becauſe of the long terms for which it is appointed, and the mode of its appointment, by which congreſs may not only controul the choice of the people, but may ſo manage as to diveſt the people of this fundamental right, and become ſelf-elected. The number of members in the houſe of repreſentatives may be encreaſed to one for every 30,000 inhabitants. But when we conſider, that this cannot be done without the conſent of the ſenate, who from their ſhare i the legiſlative, in the executive, and judicial departments, and permanency of appointment, will be the great efficient body in this government, and whoſe weight and predominancy would be abridged by an encreaſe of the repreſentatives, we are perſuaded that this is a circumſtance that cannot be expected. On the contrary, the number of repreſentatives will probably be continued at 65, although the population of the country may ſwell to treble what it now is; unleſs a revolution ſhould effect a change. We have before noticed the judicial power as it would effect a conſolidation of the ſtates into one government; we will now examine it, as it would affect the liberties and welfare of the people, ſupporting ſuch a government were practicable and proper. The judicial power, under the propoſed conſtitution, is founded on the well-known principles of the civil law, by which the judge determines both on law and fact, and