Page:Dissent of the Minority at the Pennsylvania Constitutional Convention.djvu/3

 appeals are allowed from the inferior tribunals to the uperior, upon the whole quetion; o that facts, as well as law, would be re-examined, and even new facts brought forward in the court of appeals; and to ue the words of a very eminent Civilian, " The caue is many times another thing before the court of appeals, than what it was at the time of the firt entence."

That this mode of proceeding is the one which mut be adopted under this contitution, is evident form the following circumtances; 1t. That the trial by jury; which is the grand characteritic of the common law is ecured by the contitution, only in criminal caes.--2d. That the appeal from both law and fact is exprely etablihed, which is utterly inconitent with the principles of the common law, and trials by jury. The only mode in which an appeal from law and fact can be etablihed, is by adopting the principles and practice of the civil law; unles the United States hould be drawn into the aburdity of calling and wearing juries, merely, for the purpoe of contradicting the verdicts, which would render juries contemptible and wore than ueles.--3d. That the courts to be etablihed would decide on all caes of law and equity, which is a well known characteritic of the civil law, and thee courts would have conuance not only of the laws of the United States and treaties, and of caes affecting ambaadors, but of all caes of admiralty and maritime juridiction, which lat are matters belonging excluively to the civil law, in every nation in Chritendom. Not to enlarge upon the los of the invaluable right of trial by an unbiaed jury, o dear to every friend of liberty, the montrous expence and inconveniences of the mode of proceedings to be adopted, are uch, 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 uch that few men of moderate fortune can endure the expence of; the poor man mut therefore ubmit to the wealthy. Length of pure will too often prevail againt right and jutice. For intance, we are told by the learned judge Blacktone, that a quetion, 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 entences below, was carried at length from the court of eions, the highet court in that part of Great Britain, by way of appeal to the houe of lords, where the quetion of law and fact was finally determined. He adds, that no pique or pirit, could in the court of king's bench or common pleas at Wetminter, have given continuance to uch a caue for a tenth part of the time, nor have cot a twentieth part of the expence. Yet the cots in the courts of king's bench and common pleas in England, are infinitely greater than thoe which the people of this country have ever experienced. We abhor the idea of loing the trancendant privilege of trial by jury, with the los of which, it remarked by the ame learned author, that in Sweden, the liberties of the commons were extinguihed by an aritocratic enate; and that trial by jury and the liberty of the people went out together. At the ame time we regret the intolerable delay, the enormous expences and infinite vexation to which the people of this country will be expoed from the voluminous proceedings of the courts of civil law and epecially from the appellate juridiction, by means of which a man may be drawn from the utmot boundaries of this extenive country to the eat of the upreme court of the nation to contend, perhaps, with a wealthy and powerful adverary. The conequence of this etablihment will be an abolute confirmation of the power of aritocratical influence in the courts of jutice; for the common people will not be able to contend or truggle againt it. Trial by jury in criminal caes may alo be excluded by declaring that the libeller for intance hall be liable to an action of debt for a pecified um; thus evading the common law proecution by indictment and trial by jury. And the common coure of proceeding againt a hip for breach of revenue laws by information (which will be claed among civil caues,) will, at the civil law be within the reort of a court, where no jury intervenes. Beides, the benefit of jury trial, in caes of a criminal nature, which cannot be evaded, will be rendered of little value by calling the accued to anwer far from home; there being no proviion that the trial be by a jury of the neighbourhood or country. Thus an inhabitant of Pittburgh; on a charge of crime committed on the banks of the Ohio, may be obliged to defend himelf at the ide of the Delaware, and o vice vera. To conclude this head: We oberve that the judges of the courts of Congres would not be independent, as they are not debarred from holding other offices, during the pleaure of the preident and enate, and as they may derive their upport in part from fees, alterable by the legilature. The next conideration that the contitution preents, is the undue and dangerous mixture of the powers of government; the ame body a poeing legilative, executive, and judicial powers. The enate is a contituent branch of the legilature, it has judicial power in judging on impeachments, and in this cae unites in ome meaure, the characters of judge and party, as all the principal officers are appointed by the preident-general, with the concurrence of the enate, and therefore they derive their offices in part from the enate. This may bias the judgements of the enators and tend to kreen great delinquents from punihment. And the enate has, moreover, various and great executive powers, viz. in concurrence with the preident-general, they form treaties with foreign nations that may controul and abrogate the contitutions and laws of the everal tates. Indeed, there is no power, privilege or liberty of the tate 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 "upreme law of the land, any thing in the contitution or laws of any tate, to the contrary notwithtanding." And this great power may be exercied by the preident and 10 enators, (being two-thirds of 14, which is a quorum of that body) what an inducement would this offer to the miniters of foreign powers to compas by bribery uch conceions, as could not otherwie be obtained. It is the unvaried uage of all free tates, whenever treaties interfere with the poitive laws of the land, to make the intervention of the legilature neceary to give them operation. This became neceary and was afforded by the parliament of Great Britain, in conequence of the late commercial treaty between that kingdom and France.- As the enate judges on impeachments, who is to try the members of the enate for the abue of this power! And none of the great appointments to office can be made without the conent of the enate. Such various, extenive, and important powers combined in one body of men, are inconitent with all freedom; the celebrated Montequieu tells us, that "when the legilative and executive powers are united in the ame peron, or in the ame body of magitrates, there can be no liberty, becaue apprehenions may arie, let the ame monarch or {Omitted text} e hould enact tyrannical laws, to execute them [in?] a tyrannical manner." "Again, there is no liberty, if the power of judging be not eparated rom the legilative and executive powers. Were it joined with the legilative, the life and liberty of the ubject, would be expoed to arbitrary controul; for the judge would then be legilator. Were it joined to the executive power, the judge might behave with all the violence of an oppreor. There would be an end of everything, were the ame man, or the ame body of the nobles, or of the people, to exercie thee three powers; that of enacting laws; that of executing the public reolutions; and that of judging the crimes or differences of individuals." The preident general is dangerouly connected with the enate, his coincidence with the views of the ruling junto in that body,is made eential to his weight and importance in the government, which will detroy all independency and purity in the executive department, and having the power of pardoning without the concurrence of a council, he may kreen from punihment the mot treaonable attempts that may be made on the liberties of the people, when intigated by his coadjutors in the enate. Intead of this dangerous and improper mixture of the executive with the legilative and judicial, the upreme executive powers ought to have been placed in the preident, with a mall independent council, made peronally reponible 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 preident hould not be capable of taking any tep. We have before conidered internal taxation, as it would effect the detruction of the tate governments, and produce on conolidated government. We will now conider that ubject as it affects the peronal concerns of the people. The power of direct taxation applies to every individual, as congres under this government is exprely veted with the authority of laying a capitation or poll-tax upon every peron to any amount. This is a tax that, however oppreive in its nature, and unequal in its operation, is certain as to its produce and imple in it collection; it cannot be evaded like the objects of impots or excie, and will be paid, becaue all that a man hath will he give for his head. This tax is o congenial to the nature of depotim, that it has ever been a favorite under uch governments. Some of thoe who were in the late general convention from this tate, have long labored to introduce a poll-tax among us. The power of direct taxation will further apply to every individual, as congres may tax land, cattle, trades, occupations, &c. to any amount, and every object of internal taxation is of that nature, that however oppreive, the people will have but this alternative, either to pay the tax, or let their property be taken for all reitance will be vain. The tanding army and elect militia would enforce the collection. For the moderate exercie of this power, there is no controul left in the tate governments, whoe intervention is detroyed. No relief, or redres 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 jutice. They mut therefore, implicitly, obey the mot arbitrary laws, as the wort of them, will be puruant to the principles and form of the contitution, and that tronget of all checks upon the conduct of adminitration,reponibility to the people, will not exit in this government. The permanency of the appointments of enators and repreentatives, and the controul the congres have over their election, will place them independent of the entiments and reentment of the people, and the adminitration having a greater interet in the government than in the community, there will be no conideration to retrain them from oppreion and tyranny. In the government of this tate, under the old confederation, the members of the legilature are taken from among the people and their interets and welfare are o ineparably connected with thoe of their contituents, that they can derive no advantage from oppreive laws and taxes, for they would uffer in common with their fellow citizens; would participate in the burthens they impoe on the community, as they mut return to the common level, after a hort period; and notwithtanding every exertion of influence, every means of corruption, a neceary rotation excludes them from permanency in the legilature. This large tate is to have but ten members in that congres which is to have the liberty, property and dearet concerns of every individual of this vat country at abolute command; and ever thee ten perons, who are to be our only guardians; who are to upercede the legilature of Pennylvania, will not be of the choice of the people, nor amenable to them. From the mode of their election and appointment they will conit 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 conit of thoe harpies of power, that prey upon the very vitals; that riot on the mieries of the community. But we will uppoe, although in all probability it may never be realied in fact, that our deputies in congres have the welfare of their contituents at heart, and will exert themelves in their behalf, what ecurity could even this afford; what relief could they extend to their oppreed contituent? To attain this, the majority of the deputies of the twelve other tates in congres mut be alike well dipoed; mut alike forego the weets of power, and relinquih the puruits of ambition, which from the nature of things is not to be expected. If the people part with a reponible repreentation in the legilature, founded upon fair, certain and frequent election, they have nothing left they can call their own. Mierable is the let of that people whoe every concern depends on the WILL and PLEASURE of their rulers. Our oldiers will become Janiaries, and our officers of government Bahaws; in the hort the ytem of depotim would oon be compleated. From the foregoing invetigation, it appears that the congres under this contitution, will not poes the confidence of the people, which is an eential requiite in a good government; for unles the laws command the confidence and repect of the great body of the people, o as to induce them to upport them, when called on by the civil magitrate, they mut be executed by the aid of a numerous tanding army, which would be inconitent with every idea of liberty; for the ame force that may be employed to compel obedience to good laws, might and probably would be ued to wret from the people their contitutional liberties. The framers of this contitution appear to have been aware of this great deficiency; to have been enible that no dependence could be placed on the people for their upport: but on the contrary, that the government mut be executed by force. They have therefore, made a proviion for this purpoe in a permanent STANDING ARMY, and a MILITIA that may be ubjected to a trict dicipline and government. A tanding army in the hands of a government placed o independent of the people, may be made a fatal intrument to overturn the public liberties; it may be employed to enforce the collection of the mot oppreive taxes, and to carry into execution the mot arbitrary meaures. An ambitious man who may have the army at his devotion, may tep up into the throne, and eize upon abolute power. The abolute unqualified command that congres have over the militia may be made intrumental to the detruction of all liberty, both public and private; whether of a peronal, civil, or religious nature. Firt, The peronal liberty of every man probably from ixteen to ixty years of age, may be detroyed by the power congres have in organizing and governing of the militia. As militia they may be ubjected to fines to any amount, levied in a military manner; they may be ubjected to corporal punihments of the mot digraceful and humiliating kind, and to death itelf by the entence of a court martial: To this our young men will be more immediately ubjected, as a elect militia, compoed of them, will bet anwer the purpoes of government. Secondly, The rights of concience maybe violated, as there is no exemption of thoe perons, who are concientiouly crupulous of bearing arms. Thee compoe a repectable proportion of the community in the tate. This is the more remarkable, becaue even when the ditrees of the late war, and the evident diaffection of many citizens of that decription, inflamed our paions, and when every peron, who was obliged to rique his own life, mut have been exaperated, againt uch as on any account kept back from the common danger, yet even then, when outrage and violence might have been expected, the rights of concience were held acred. At this momentous criis, the framers of our tate contitution, made the mot expres and decided declaration and tipulations in favor of the rights of concience: but now when no neceity exits, thoe dearet rights of men are left inecure. Thirdly, the abolute command of congres over the militia, may be detructive of public liberty; for under the guidance of an arbitrary government, they may be made the unwilling intruments of tyranny. The militia of Pennylvania may be march to New-England or Virginia to quell an inurrection occaioned by the mot galling oppreion, and aided by the tanding army, they will, no doubt, be ucceful in ubduing their liberty and independency; but in o doing, although the magnanimity of their minds will be extinguihed, yet the meaner paions of reentment and revenge will be encreaed, and thoe in turn will be the ready and obedient intruments of depotim to enlave the others; and that with an irritated vengeance. Thus may the militia be made the intruments of cruhing the lat efforts of expiring liberty, of rivetting the chains of depotim on their fellow citizens and on one another. This power can be exercied not only without violating the contitution but in trict conformity with it, it is calculated for this expres purpoe, and will doubtles be executed accordingly. As this government will not enjoy the confidence of the people, but be executed by force, it will be a very expenive and burthenome government. The tanding army mut be numerous, and as a further upport, it will be the policy of this government to multiply officers in every department; judges, collectors, tax-gathers, exciemen, and the whole hot of revenue officers will warm over the land, devouring the hard earnings of the indutrious. Like the locuts of old, impoverihing and deolating all before them. We have not noticed the maller, nor many of the coniderable blemihes, but have confined our objections to the great and eential defects; the main pillars of the contitution; which we have hewn to be inconitent with the liberty and happines of the people, as its etablihment will annihilate the tate governments, and produce one conolidated government that will eventually and peedily iue in the upremacy of depotim. In this invetigation, we have not confined our view to the interets or welfare of this tate, in preference to the others. We have over looked all local circumtance--we have conidered this ubject on the broad cale of the general good; we have aerted the caue of the preent and future ages; the caue of liberty and mankind. Nathaniel Breading,..........John Ludwig, John Smilie,..........Abraham Lincoln, Richard Baird,..........John Bihop, Adam Orth,..........Joeph Heiter, John A. Hanna,..........Joeph 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 Ruh,..........Japer Yates, Hilary Baker,..........Henry Slagle, James Wilon,..........Thomas Campbell, Thomas M'Kean,..........Thomas Hartley, William M'Pheron,..........David Grier, John Hunn,..........John Black, George Gray,..........Benjamin Pedan, Samuel Ahmead,..........John Arndt, Enoch Edwards,..........Stephen Balliott, Henry Wynkoop,..........Joeph Horefield, John Barclay,..........David Dehler, Thomas Yardley,..........William Wilon, Abraham Stout,..........John Boyd, Thomas Bull,..........Thomas Scott, Anthony Wayne,..........John Nevill, William Gibbons,..........John Allion, Richard Downing,..........Jonathan Roberts, Thomas Cheyney,..........John Richards John Hannah,..........F.A. Muhlenberg, Stephen Chambers,..........James Morris, Robert Coleman,..........Timothy Pickering, Sebatian Graff,..........Benjamin Elliot, ..........46 NAYS. NAYS. John Whitehill,..........William Findley, John Harris,..........John Baird, John Reynolds,..........William Todd, Robert Whitehill,..........James Marhall, Jonathan Hoge,..........James Edgar, Nicholas Lutz,..........Nathaniel Breading. John Ludwig,..........John Smilie, Abraham Lincoln,..........Richard Baird, John Bihop,..........William Brown, Joeph Heiler,..........Adam Orth, James Martin,..........John Andre Hannah, Joeph Powell,..........23 Philadelphia, December 12, 1787. [Philadelphia: Printed by E. Owald, at the [Coffee-Houe.]