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

 ; and alo that the judges be made completely independent.

Thirteenth. That no treaty which hall be directly oppoed to the exiting laws of the United States in Congres aembled, hall be valid until uch laws hall be repealed or made conformable to uch treaty; neither hall any treaties be valid which are in contradiction to the contitution of the United States, or the contitutions of the everal tates.

Fourteenth. That the judiciary power of the United States hall be confined to caes affecting ambaadors, other public miniters and conuls; to caes of admiralty and maritime juridiction; to controveries to which the United States hall be a party; to controveries between two or more tate—between a tate and citizens of different tate—between citizens claiming lands under grants of different tates; and between a tate or the citizens thereof and foreign tates; and in criminal caes to uch only as are exprely enumerated in the contitution, and that the United States in Congres aembled, hall not have power to enact laws, which hall alter the laws of decents and ditribution of the effects of deceaed perons, the titles of land or goods, or the regulation of contracts in the individual tates.

After reading thee propoitions, we declared our willingnes to agree to the plan, provided it was o amended as to meet thoe propoitions, or omething imilar to them: and finally move the convention to adjourn, to give the people of Pennylvania time to conider the ubject, and determine for themelves; but thee were all rejected, and the final vote was taken, when our duty to you induced us to vote againt the propoed plan, and to decline igning the ratification of the ame.

During the dicuion we met with many inults, and ome peronal abue; we were not even treated with decency, during the itting of the convention, by the perons in the gallery of the houe; however, we flatter ourelves that in contending for the preervation of thoe invaluable rights you have thought proper to commit to our charge, we acted with pirit becoming freemen, and being deirous that you might know the principles which actuated our conduct, and being prohibited from inerting our reaons of dient on the minutes of the convention, we have ubjoined them for your conideration, as to you alone we are accountable. It remains with you whether you will think thoe inetimable privileges, which you have o ably contended for, hould be acrificed at the hrine of depotim, or whether you mean to contend for them with the ame pirit that has often baffled the attempts of an aritocratic faction, to rivet the hackles of lavery on you, and your unborn poterity.

Our objections are compried under three general heads of dient, viz.

E DISSENT, Firt, Becaue it is the opinion of the mot celebrated writers on government, and confirmed by uniform experience, that very extenive territory cannot be governed on the principles of freedom, otherwie than by a confederation of republics, poeing 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 conceion of Mr. Wilon, one of the majority on this quetion, and who was one of the deputies in the late general convention. In jutice to him, we will give his own words; they are as follows, viz. "The extent of country for which the new contitution was required; produced another difficulty in the buines of the federal convention. It is the opinion of ome celebrated writers, that to a mall territory, the democratical; to a middling territory (as Montequieu has termed it) the monarchical; and to an extenive territory, the depotic form of government, is bet adapted. Regarding then the wide and almot unbounded juridiction of the United States, at firt view, the hand of depotim eemed neceary to controul, connect, and protect it; and hence the chief embarrament roe. For, we knew that, although our contituents would chearfully ubmit to the legilative retraints of a free government, they would purn at every attempt to hackle them with depotic power."—And again in another part of his peech he continues.—"Is it probable that the diolution of the tate governments, and the etablihment of one conolidated empire would be eligible in its nature, and atifactory to the people in its adminitration? I think not, as I have given reaons to hew that o extenive a territory could not be governed, connected, and preerved, but by the upremacy of depotic power. All the exertions of the mot potent emperors of Rome were not capable of keeping that empire together, which in extent was far inferior to the dominion of America."

We dient, econdly, becaue the powers veted in Congres by this contitution, mut necearily annihilate and aborb the legilative, executive, and judicial powers of the everal tates, and produce from their ruins one conolidated government, which from the nature of things will be an iron handed depotim, as nothing hort of the upremacy of depotic way could connect and govern thee United States under one government.

As the truth of this poition is of uch deciive importance, it ought to be fully invetigated, and if it is founded to be clearly acertained; for, hould demontrated, that the powers veted by this contitution in Congres, will have uch an effect, as necearily to produce one conolidated government, the quetion then will be reduced to this hort iue, viz. whether atiated with the bleings of liberty; whether repenting of the folly of o recently aerting their unalienable rights, againt foreign depots, at the expence of o much blood and treaure, and uch painful and arduous truggles, the people of America are now willing to reign every privilege of freemen, and ubmit to the domination of an abolute government, that will embrace all America in one chain of depotim; or whether they will with virtuous indignation, purn at the hackles prepared for them, and confirm their liberties by a conduct becoming freemen.

That the new government will not be a confederacy of tates, as it ought, but one conolidated government, founded upon the detruction of the everal governments of the tates, we hall now hew.

The powers of Congres under the new contitution, are compleat and unlimited over the pure and the word, and are perfectly independent of, and upreme over, the tate government: whoe intervention in thee great points is entirely detroyed. By virtue of their power of taxation, Congres may command the whole, or any part of the property of the people. They may impoe what impots upon commerce; they may impoe what land-taxes, poll-taxes, excies, duties on all written intruments, and duties on every other article that may judge proper; in hort, every pecies of taxation, whether of an external or internal nature is compried in ection the 8th, of article the 1t, viz. "The Congres hall have power to lay and collect taxes, duties, impots, and excies, 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 reerved to the tate governments, the Congres may monopolie every ource of revenue, and thus indirectly demolih the tate governments, for without funds they could not exit, the taxes, duties and excies impoed by Congres may be o high as to render it impracticable to levy further ums on the ame articles; but whether this hould be the cae or not, if the tate governments hould preume to impoe taxes, duties or excies, on the ame articles with Congres, the latter may abrogate and repeal the laws whereby they are impoed, upon the allegation that they interfere with the due collection of their taxes, duties or excies, by virtue of the following claue, part of ection 8th, article 1t, via. "To make all laws which hall be neceary and proper for carrying into execution the foregoing powers, and all other powers veted by this contitution in the government of the United States, or in any department or officer thereof." The congres might glos over this conduct by contruing every purpoe for which the tate legilatures now lay taxes, to be for the "general welfare," and therefore as of their juridiction. And the upremacy of the laws of the United States is etablihed by article 6th, viz. "That this contitution and the laws of the United States, which hall be made in puruance thereof, and all treaties made, or which hall be made, under the authority of the United States, hall be the upreme law of the land, and the judges in every tate hall be bound thereby, any thing in the contitution or laws of any tate to be contrary notwithtanding." It has been alledged that the words "puruant to the contitution," are a retriction upon the authority of Congres; but when it is conidered that by other ections they are inveted with every efficient power of government, and which may be exercied to the abolute detruction of the tate governments, without any violation of ever the forms of the contitution, this eeming retriction, as well as every other retriction in it, appears to us to be nugatory and deluive; and only introduced as a {Omitted text} nd upon the real nature of the government. In our opinion, "puruant to the contitution," will be co-extenive with the will and pleaure of Congres, which, indeed, will be the only limitation of their powers. We apprehend, that two co-ordinate overeignties would be a olecim in politics. That therefore there is no line of ditinction drawn between the general, and tate governments; as the phere of their juridiction is undefined; it would be contrary to the nature of things, that both hould exit together, one or the other would necearily triumph in the fullnes of dominion. However the contet could not be of long continuance, as the tate governments are diveted of every means of defence, and will be obliged by "the upreme law of the land" to yield at dicretion. It has been objected to this total detruction of the tate governments, that the exitence of their legilatures is made eential to the organization of Congres; that they mut aemble for the appointment of the enators and preident general of the United States. True, the tate legilatures may be continued for ome years, as boards of appointment, merely, after they are diveted of every other function; but the framers of the contitution foreeeing that the people will oon be diguted with this olemn mockery of a government without power and uefulnes, have made a proviion for relieving them from the impoition, in ection 4th, of article 1t, viz. " The times, places, and manner of holding elections for enators and repreentatives, hall be precribed in each tate by legilature thereof;but the Congres may at any time, by law make or alter uch regulations; except as to the place of chuing enators. As Congres have the controul over the time of the appointment of the preident general, of the enators and of the repreentatives of the United States, they may prolong their exitence in office, for life, by potponing the time of their election and appointment, from period to period, under various pretences, uch, as an apprehenion of invaion, the factious dipoition of the people, or any other plauible pretence that the occaion may ugget; and having thus obtained the life-etates in the government, they may fill up the vacancies themelves, by their controul over the mode of appointment; with this exception in regard to the enators, that as the place of appointment for them, mut, by the contitution, be in the particular tate, they may depute ome body in the repective tates, to fill up the vacancies in the enate, occaioned by death, until they can venture to aume it themelves. In this manner, may the only retriction in this caue, be evaded. By virtue of the foregoing ection, when the pirit of the people hall be gradually broken; when the general government hall be firmly etablihed, and when a numerous tanding army hall render oppoition vain, the Congres may compleat the ytem of depotim, in renouncing all dependance on the people, by continuing themelves, and children in the government. The celebrated Montequieu, in his Spirit of Laws, vol. 1, page 12th, ays " That in a democracy there can be no exercie of overeignty, but by the uffrages of the people, which are their will; now the overeigns will is the overeign himelf; the laws therefore, which etablih the right of uffrage, are fundamental to this government. In fact it is as important to regulate in a republic in what manner, by whom, and concerning what, uffrages 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 repreentatives, enators and preident general of the United States, ought not to be under the controul of Congres, but fundamentally acertained an etablihed. The new contitution, conitently with the plan of conolidation, contains no reervation of the rights and priviledges of the tate governments, which was made in the confederation of the year 1778, by article the 2d, viz. "That each tate retains its overeignty, freedom and independence, and every power, juridiction and right, which is not by this confederation exprely delegated to the United States in Congres aembled." The legilative power veted in Congres by the foregoing recited ections, is o unlimited in its nature; may be o comprehenive and boundles in its exercie, that this alone would be amply ufficient to annihilate the tate governments, and wallow them up in the grand vortex of general empire. The judicial powers veted in Congres are alo o various and extenive, that by legal ingenuity they may be extended to every cae, and thus aborb the tate judiciaries, and when to conider the deciive influence that a general judiciary would have over the civil polity of the everal tates, we do not heitate to pronounce that this power, unaided by the legilative, would effect a conolidation of the tates under one government. The powers of a court of equity, veted by this contitution, in the tribunals of Congres; powers which do not exit in Pennylvania, unles o far as they can be incorporated with jury trial, would, in this tate, greatly contribute to this event. The rich and wealthy uitors would eagerly lay hold of the infinite mazes, perplexities and delays, which a court of chancery, with the appellate powers of the upreme court in fact as well as law would furnih him with, and thus the poor man being plunged in the bottomles pit of legal dicuion, would drop his demand in depair. In hort, conolidation pervades the whole contitution. It begins with an annunciation that uch was the intention. The main pillars of the fabric correpond 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 tyle of a compact between individuals entering into a tate of ociety, and not that of a confederation of tates. The other features of conolidation, we have before noticed. Thus we have fully etablihed the poition, that the powers veted by this contitution in Congres, will effect a conolidation of the tates under one government, which even the advocates of this contitution admit, could not be done, without the acrifice of all liberty. 3. We dient, Thirdly, Becaue if it were practicable to govern o extenive a territory as thee United States, includes, on the plan of a conolidated government, conitent with the principles of liberty and the happines of the people, yet the contruction of this contitution is not calculated to attain the object, for independent of the nature of the cae, it would of itelf, necearily, produce a depotim, and that not by the uual gradations, but with the celerity that has hitherto only attended revolutions affected by the word. To etablih the truth of this poition, a curory invetigation of the principles and form of this contitution will uffice. The firt conideration that this review uggets, is the omiion of a BILL OF RIGHTS, acertaining and fundamentally etablihing thoe unalienable and peronal rights of men, without the full, free and ecure enjoyment of which there can be no liberty, and over which it is not neceary for a good government to have the controul. The principal of which are the rights of concience, peronal liberty by the clear and unequivocal etablihment of the writ of habeas corpus, jury trial in criminal and civil caes, by an impartial jury of the vicinage or county, with the common law proceedings, for the afety of the accued in criminal proecutions; and the liberty of the pres, that courge of tyrants, and the grand bulwark of every other liberty and privilege: the tipulations heretofore made in favour of them in the tate contitutions, are entirely uperceded by this contitution. The legilature of a free country hould be o formed as to have a competent knowledge of its contituents, and enjoy their confidence.—To produce thee eential requiites, the repreentation ought to be fair, equal and ufficiently numerous, to poes the ame interets, feelings, opinions and views, which the people themelves would poes, were they all aembled; and o numerous as to prevent bribery and undue influence, and o reponible to the people, by frequent and fair elections, as to prevent their neglecting, or acrificing the views and interets of their contituents, to their own puruits. We will now bring the legilature under this contitution to the tet of the foregoing principles, which will demontrate, that it is deficient in every eential quality of a jut and afe repreentation. The houe of repreentatives is to conit of 65 members; that is one for every 50,000 inhabitants, to be choen every two years. Thirty-three members will form a quorum for doing buines, and eventeen of thee, being the majority, determine the ene of the houe. The enate, the other contituent branch of the legilature, conits of 26 members, being two from each tate, appointed by their legilatures every ix year—fourteen enators make a quorum; the majority of whom, eight, determines the ene of that body: except in judging on impeachments, or in making treaties, or in expelling a member, when two thirds of the enators preent, mut concur. The preident is to have the controul over the enacting of laws, o far as to make the concurrence of two thirds of the repreentatives and enators preent neceary, if he hould object to the laws. Thus it appears, that the liberties, happines, interets, and great concerns, of the whole United States, may be dependent upon the integrity, virtue, widom. and knowledge of 25 or 26 men. How inadequate and unafe a repreentation! Inadequate, becaue the ene and views of 3 or 4 millions of people diffued over o extenive a territory, compriing uch various climates, products, habits, interets, and opinions, can not be collected in o mall a body; and beides, it is not a fair and equal repreentation of the people, even in proportion to its number, for the mallet tate has as much weight in the enate as the larget, and from the mallet of the number to be choen for both branches of the legilature; and from the mode of election and appointment; which is under the controul of Congres; and from the nature of the thing, men of the mot elevated rank in life, will alone be choen. The other orders in the ociety, uch as farmers, traders, and mechanics, who all ought to have a competent number of their bet informed men in the legilature, will be totally unrepreented. The repreentation is unafe, becaue in the exercie of uch great powers and truts, it is o expoed to corruption and undue influence, by the gift of the numerous places of honor and emolument, at the dipoal of the executive; by the arts and addres of the great and deigning; and by direct bribery. The repreentation is moreover inadequate and unafe, becaue of the long terms for which it is appointed, and the mode of its appointment, by which congres may not only controul the choice of the people, but may o manage as to divet the people of this fundamental right, and become elf-elected. The number of members in the houe of repreentatives may be encreaed to one for every 30,000 inhabitants. But when we conider, that this cannot be done without the conent of the enate, who from their hare i the legilative, in the executive, and judicial departments, and permanency of appointment, will be the great efficient body in this government, and whoe weight and predominancy would be abridged by an encreae of the repreentatives, we are peruaded that this is a circumtance that cannot be expected. On the contrary, the number of repreentatives will probably be continued at 65, although the population of the country may well to treble what it now is; unles a revolution hould effect a change. We have before noticed the judicial power as it would effect a conolidation of the tates into one government; we will now examine it, as it would affect the liberties and welfare of the people, upporting uch a government were practicable and proper. The judicial power, under the propoed contitution, is founded on the well-known principles of the civil law, by which the judge determines both on law and fact, and