Pennsylvania Ratifying Convention, 1787
By R. Carter Pittman
HE state of Pennylvania was the first to call a convention to
consider the proposed constitution agreed to at Philadelphia on September 17, 1787,
by delegates of the twelve states. At the request of the Constitutional Convention,
the Continental Congress submitted the Constitution to the states on September 23,
and on the next day the Pennsylvania legislature, which was in session, called a
convention to ratify or reject the new frame of government. Delegates were elected on
November 2, and the ratifying convention held its first sessions at the State House
in Philadelphia on November 21. After nearly three weeks of debate, the convention
voted on December 13 for ratification, and on December 15 adjourned sine die.
Information about what went on in Pennsylvania's ratifying convention comes from a number of sources. The Journal of the Convention supplies for each session only the bare record of the time of meeting, motions made, votes taken, and the time of adjournment.(1) Much fuller reports on certain parts of the convention were recorded and printed by Alexander J. Dallas, editor of the Pennsylvania Herald and the Columbian Magazine, and by Thomas Lloyd, an unsuccessful applicant for the position of assistant clerk of the convention. When the convention opened, Dallas began to take notes, and he subsequently printed full reports in the Herald. Unfortunately, Dallas's reports break off after the meeting of November 30, apparently "through the efforts of the Federalists."(2) It was Federalist interests that deprived us of the full fruits of Lloyd's labors as well. His record of the debates extends to the end of the convention, but he printed in a single volume only those speeches made by the two Federalist leaders, Thomas McKean and James Wilson, instead of the full record of the convention he had originally planned.(3) Except for these speeches of McKean and Wilson and occasional sketchy accounts in the newspapers, none of the debate after November 30 was communicated to the public.
One hundred years later, in 1888, John B. McMaster and Frederick D. Stone in their monumental volume, Pennsylvania and the Federal Constitution, 1787-1788, reprinted both Dallas's and Lloyd's reports on the Pennsylvania ratifying convention.(4) They also printed as an appendix James Wilson's notes on the convention, which they found in Wilson's papers at the Historical Society of Pennsylvania. These notes were Wilson's outline of the points others made in the debate which began on November 24 when McKean made his motion for ratification and which ended on December 12 with the vote for ratification.(5) Recently, the very brief notes on the meetings of December 6-8 made by Anthony Wayne, also a delegate, were printed in an issue of Manuscripts.(6)
The publication below of the notes of still another delegate to the ratifying convention, the Federalist Jasper Yeates,(7) makes available new information about Pennsylvania's fight over ratification of the Federal Constitution. By some happy fortuity, or by design, Yeates began to take his notes of debates on Friday, November 30, the last day on which Dallas reported. As a consequence, Yeates's notes nicely supplement those of Lloyd and Wilson. Lloyd's report of the speeches of McKean and Wilson are of course much more extended than Yeates's; but Yeates often records points made in these speeches which Lloyd does not include, and he provides the only report we have of some of the speeches made by the other delegates.
On May 11, 1874, the manuscript notes of Jasper Yeates were deposited in the old National Museum at Independence Hall in Philadelphia by R. W. Shenk(8) of Lancaster, Pennsylvania. Why the manuscript has remained there since, largely unnoticed, has not been explained.
Mr. Robert Whitehill(9)
The Seeds of Self Preservation are so well sown in the federal System, that
the same will overshadow all the State Governments
Mr. Finley(10)
The Number of representatives is much too few for so large a Country as
America
Does any State who has a Bill of Rights complain of it
Mr. Smiley(11)
The State of Virginia has a Bill of Rights
Reads a Volume of the Remembrancer for this Purpose
Says he has a french Translation of it(12)
Mr. McKean(13)
The Gentleman who complains of the Smallness of Representation in the
Union, should tell us in what Ratio the People should be represented instead
of 30,000 for 1
Formerly Representation was in this State of 750 to 1--now it is 1000 to 1--and
perhaps in a few Years it will be 2000 to 1
This is all Matter of Opinion
Mr. Smiley
We shall object to direct Taxation
to the power of keeping up standing armies
Mr. Wilson(14)
A large Representation draws after it heavy Expense
A deliberative Body may be too large
I won't say it may not exceed I00
Great Difficulties arose on this Question in Convention
If we suppose according to the Common Calculation that the Number of
People in the US. doubles every 25 years, in the Course of one Century according
to the best Accounts we have received of our State of Population, the Number
of Representatives in the federal Constitution, will amount to about 600 Persons.
Carrying our Views therefore to a distant Period it appears that the Ratio
of 30000 for 1 will not be improper.
Mr. Pickering(15)
moved that the Members opposing the Constitution should keep to some Kind of
Order with Respect to their Objections
Mr. Chambers(16)
seconded him
Mr. Finley
The Constitution offered to us is a consolidated Government and not a
Confederate Republic
It will swallow up eventually all the State Governments
There is no Sovereignty left in the State Legislatures
Mr. Wilson
All Sovereignty rests in the People
There is no Sovereign Authority in any State or in Congress
If the People have parted with their sovereign Authority to the State
Legislatures, then this Constitution cannot be defended
Mr. Finley
It is no argument for the federal Constitution to shew that the
Legislature of Pennsylvania have passed Laws which have been improper
Dr. Edwards(17)
I object to a Bill of Rights being brought in
Mr. Smiley
Congress have a Power to restrain libels
I was absent for an Hour--
A desultory Conversation took Place
It was contended that an Act of Parliament is necessary in
England to confirm a Treaty! by R Whitehill
That Migration and Importation of Persons are the same Thing
in Sect. [9] of Article [I].(18)
Mr. Wilson
I wish to hear and sub[sequently] answer every Objection against the new
Constitution
Mr. Smiley
1st Objection. Want of a Bill of Rights
2. The Government is a consolidated one and will swallow up the State Legislature.
3. The Senate has a dangerous Power of Corrupting by their Offices, the Representatives
of the People
[Mr. Wilson](19)
1st Objection. The Want of a Bill of Rights.
Resp. Our Governments differ in their Formation from England and therefore tho'
necessary there, not so here.
New Hampshire, Rhode Island, Connecticut, New York, New Jersey[,] South Carolina,
Georgia and perhaps Virginia have no Bill of Rights
Are they not free? Do they hold their Liberties as Ten[an]ts at Will?
But an Enumeration would be dangerous--Part might be omitted and therefore
excluded
Whatever is not expressly ceded to the Federal Government is still reserved
But it is said we have adopted Part of the Bill of Rights, as in reserving the
Trials by Jury in Criminal Cases, and directing that the Priviledge of the Habeas
Corpus Act shall not be suspended except in Times of immediate Danger--
Resp. This is restrictive of the general Legislative Powers of Congress
They might claim this right if not restrained.
Their Powers being enumerated, it became necessary to make Exceptions.
This Clause then does not form a Bill of Rights--but are the express Exceptions
from the general delegated Powers of Congress.
2d Objection. The federal Constitution annihilates all State Legislatures and is
intended for that Purpose--and vest Congress with too large and dangerous State
Powers.
Resp. Candor and the Character of the federal Convention forbid the Idea
The Work does not justify the remark
But it has been shewn, if the State Government fail, so must the federal
Government.
The Representatives must be chosen by persons voting for the most numerous
Branch of the State Legislature.
The State Legislature must choose the Senate--and appoint Electors to choose
a President.
The Judicial Power dependsd on the Senate.
The 4th Sections of the 4th Article guarantees a Republican Form of
Government to each State
(Read it)
As to the large legislative Powers given to Congress they are absolutely
necessary to our Existence and can be lodged in no Hands so safely--they are
our Choice.--
Their Existence depends on the Choice of a House of Representatives and
should have Power to make Regulations, to prevent Factions.
It is only intended that this Power should be used when the State would
either not use or abuse this Power. Will we presume that Congress will
abuse this Power.
It is not possible to define and lay down Power so exactly, but that it may
be abused.
The Elements of Fire and Water may be abused. But shall we renounce
them because they may be abused.
The Supreme Power must be vested somewhere, but where so naturally as
in the Supreme Head chosen by the free Suffrages of the People mediately or
immediately.
The Objects of State Legislation are different from those of the federal
Constitution
They are confined to Matters within ourselves
The latter embrace the general Interest of the U.S. and conduct them into
one common [sic] Channel to inrich and render happy the Citizens of the
whole Community
Could the States individually exercise the Powers given to Congress? Could
they carry them into Execution? Could they propose an uniform System of
Commerce and Trade? Witness the 5 Per Cent Impost refused by the State of
Rhode Island[.] Under the Confederation it [already?] had the power They
are now proposed to have.
This Matter is taken up by the opposition as if Congress were a separate
independent Body deliberately determined in destroying the liberties of the
People.
Surely this is not fair. They have no separate Interests from ourselves. They
must feel any Tax--every Imposition. We can remove them if we please.
It is confessed the 10th Section abridges some of the Powers of the State
Legislature--as in preventing them from Coining Money[,] emitting Bills of
Credit--making legal Tender--impairing the Obligations of Contracts--etc.
But is not [it] proper that they should be so restricted.
What have been the Effects of the Tender laws--Emissions of Paper Money--or
the Destruction of contracts.
All Faith has been destroyed amongst us--Speculations of the most dangerous
Kind have been unrestrained[?].
The Principles of Morality have been impaired and if Virtue is the Foundation
of a Republic we have been sapping it as fast as we could.
If State Governments are prevented from Exercising these Powers, it will
produce Respectability and Credit will immediately take place.
Laws respecting the general Interests of Trade will take place--
Commerce will flourish--Ship Building will revive again--
Taxes will be lessened on the Landed Interest.
The Superfluities of Life will be taxed and the luxuries of the Rich will
defray a considerable Part of the National Burthen.
We shall be respectable in the Eyes of all Europe.
Our Credit will again extend itself--Foreigners will trust us--
Congress alone with the Powers given them by this System or similar Powers
can effect these Purposes.
Mr. Finley
Montesquieu Lib. 2 ch[a] p.2[.](20)
The People in whom the Supreme Power resides ought to have the Management of every thing within
their reach. What exceeds their Abilities must be conducted by their Ministers.
Vattel Lib. I. fol. 7.(21)
The Supreme Power is placed in the People.
Vattel C.2. pa. 10. 11[.](22)
The States forming a federal Republic.
The federal Head should regulate Commerce--but it's [sic] Powers
should go no further.
The Powers of Legislation will follow Taxation. The Sovereignty of the
State Legislature will be intirely destroyed by the federal Constitution
The general Interest of Pennsylvania were not represented in the late
Convention--
Had I been in the Convention I would have opposed the Shutting of the Doors,
and would have collected Intelligence from the Sentiments of my Friends
Sovereignty essentially resides in the People--but they may vest what
portion of it they please in the State Legislatures
I agree that States were made for the People and not the People for the
States.
If the Constitution of Pennsylvania is wrong, we ought not to adopt for
that reason, a wrong federal System
Our Constitution points out a constitutional Mode of altering our Systems if
found improper
The State Constitution of Virginia expressly directs that the Legislative,
Executive, and Judicial Departments should be kept separate. So says Montesquieu and Reason.
There is no Rotation of Offices under the present Federal System as
proposed.
Means are not left in each State to support a civil List
The smaller States have an equal Vote in the Senate with the larger
States--but this is rather to be lamented than avoided.
There sill be no Saving of public expence in the different States by
adopting the new Constitution
The People are not sufficiently represented in the Ho[use] of Representatives.
The number is too small for an extended Empire
Mr. Smiley
I mean to consider the Consequences of the Power of Congress over the
Militia and their keeping up a standing army.
Mr R Whitehill
Vice President will be a dangerous Officer.
He has the Casting Vote in the Senate
It blends the legislative and executive departments.
Mr. Smiley
It was said by Mr Wilson that this government could not be executed.
Mr Finley
President in appointing Officers will generally nominate such Persons as will
be agreeable to the Senate
The legislative and executive Departments are mixed in this Constitution.
Mr R Whitehill
The judicial Powers will swallow up all the State Court's Jurisdictions.
The People will be dragged a great Distance to attend the inferior Foederal
Courts.
There must be a federal Court in every County which with the Expence of
Officers attending it will be a great Burthen.
The Appeals will be very dangerous to the People--The Wealthy must also
succeed.
Bonds will be sued for--Titles to Lands will be tried in the federal Courts
The Direction of Trials of Crimes by a Jury excludes Trials in civil Cases by
a Jury. The Enumeration of the former excludes the latter
The Liberties of the People may be absorbed by a Treaty
Mr Wilson
Care has been taken to prevent the Government from doing Acts of Oppression in
Governmental Matters--Trials by Jury are secured in Criminal Cases.
It is not to be supposed that Individuals or a Government will do oppressive
Things, unless from Principles of Interest, Ambition, or Emolument.
There have been more Violations of the Rights of Trial by Jury in
Pennsylvania since the Revolution than in England in the Course of a Century notwithstanding a
boasted Bill of Rights.
There are no Instances of exclusive Jurisdiction in the federal Courts--there
are but few Cases of their having original Jurisdiction.
Mr. Smiley
In the case of the Sloop Action, the Law passed in Pennsylvania was founded
on the immediate Recommendation of Congress, to try Prize Cases by Jury.--
Jury Trials may be superseded in Civil Cases
Appellate Jurisdiction is a Civil Law Term
There can be no Appeal after Jury Trials.
I fear there is an Intention to substitute the Civil Law in the Room of the
Common Law
Think of the Expence of the different Courts and of the federal System at large.
Mr. Finley
The Powers vested by the new Constitution are not accurately and precisely
defined
The Liberties of the People are always safest when Juries (who never go
wrong by System) are called in and control the Conduct of the Judges
Tho' the individual States are restricted from making ex post facto Laws
yet the general legislative Authority is not prevented by the Constitution from making such Laws
Mr Smiley
The Appellate Jurisdiction is borrowed from the Civil Law and will exclude
Trials by Jury
Writ of Attaint lies against a Jury for giving a false Verdict.
Case of Forcy v. Cunningham at New York in
1764.(23)--Appeal from the general Verdict
of a Jury assessing Damages in the Case of a Trespass and Assault to the Governor and Council
refused in the Supreme Court by the Judges
England corrupt as she is would not fix an Innovation like our Appellate
Jurisdiction
Tho Trials in Criminal Cases by Jury is secured--but not being mentioned
in Civil Cases itis clearly excepted in such latter Cases.
Mr R Whitehill
The federal Convention found the Task too great for them to ascertain the
Mode of Trial in Civil Cases
We are solemnly bound to our God not to give away the Rights and Liberties
of the People
The rich will swallow up the Poor--we shall have no Security for our
Property.--Why need we obtain Property if it is insecure?
There is no Security for People's Houses or Papers by the Constitution--All
depends on the good Will of Congress and the Judges
It is a solemn Mockery of Heaven to say that our Rights are secured by the
Constitution.
Cites 9th Letter of the Farmer's Letters published in
Pennsylvania(24)
Mr McKean
Too much Time has been spent in this Business. The whole Matter might have
been dispatched in a few Days.
Mr Finley
Future Ages will be surprized at America's adopting this Constitution.
Englishmen would not do it and would wonder at freemen's adopting it--
If there is no Bill of Rights, there should be ample Security that our
Rulers should be honest and virtuous--and that if they themselves were virtuous they
should not be imposed on by the Vicious.--
If otherwise, our Liberties are held in the most precarious Tenure.--
An Altercation between the Chief Justice and Mr Smiley
Mr Chambers defended the Chief Justice and berated the opposition
Mr Smiley
3 Blackst[one] 380.(25)
Eulogy on Juries.
Aristocracy is the most oppressive of all tyrannical Governments.--
The Convention deliberately planned the System of taking away the Trials
by Jury
Mr Findley
33d. Vol Universal
History fol. 21.(26)
Trials by Jury are in Disuse in Sweden except in the lower Courts.
3 Blackst[one] Com[mentaries] 349. 380. 381. Every new Tribunal without
a Jury is an Introduction of Aristocracy the worst of all Tyrannies.
Trials by Jury in Sweden have been in Disuse for near a Century past.
Mr. McKean
The following are Objections to the System.
Objection 1. The Election of Representatives and Senators is not frequent
enough to secure their Responsibility
Respo. 1. People greatly differ on these Points--Annual Elections may be
proper in a single Branch but not so of the present System where their Objects are to Matters
which particular States are not competent to.
[Objection] 2. 30,000 People represented by one Delegate is too small a
representation--
Resp. 2. In England Parliament exercise general legislative Power in all
Cases--here the Powers of the legislative Body are restricted to more general Matters reaching
over the whole Union--
[Objection] 3. Senators have a Share in the appointment of certain officers,
and yet must try them on impachment [sic] which blends the Executive and Judicial
Offices.
Resp. 3. This resembles the Constitution of Gr[eat] Brit[ain] which is deemed
the best ballanced in the World--It holds in the strongest light in the Constitut[ion] of
Penns[ylvania] where the Executive Council alone appoint and try Impeachments.
[Objection] 4. Congr[ess] may affix improper Modes of Election in their
Control of the Legislatures of the States.
Resp. 4. The U. S. at large have a greater Interest in the due Election of
Repr[esentatives] than any one State has.--and this Power is absolutely necessary to their
Preservation.
[Objection] 5. Powers of Congr[ess] too large in laying internal direct
Taxations--their Power over Militia too great--the Appropriation of Money for too long a
Time--The People have no Control over them.
Resp. 5. Congr[ess] owe large Debts and ought to have the Powers of
compelling the Payment of money.--The Power of raising Armies and paying them must be lodged
somewhere and where so properly as in Congress? It is absolutely necessary for the
Salvation of the U.S.
[Objection] 6. The whole Executive Power not lodged in the President--his
Power of Pardoning treasons is enormous--Vice President is an useless Office--
Resp. 6. It is an Objection that the President is bound to consult the
Senate? This is Contending for his monarcy--but he clearly is responsible to the People--The
Objection of his solely having the Power of granting Pardons is inconsistent with the first
Objection--This Power should be lodged in one person--The Vice President's Office is grounded
on the Practice in England.--
[Objection] 7. Objection against the Judiciary Department--The Salary of
the Judges may be increased and they may hold lucrative offices--the Presid[ent's] Salary
may not be increased or diminished.--
Resp. 7. The Judges hold their Offices during Life and great changes may
happen in the Value of money--not so of the President who can only continue for 4 years--You
cannot avoid their getting Offices--for they may elude these Provisions by getting the Office
conferred on a Son etc.
[Objection] 8. No Bill of Rights to secure the
Liberties of the People--
Resp. 8. It is not necessary, where there is no King or Prerogative--All
that is not granted is reserved--Cites Locke on Government part 2. sect[ion] 141,
152.(27)
[Objection] 9. A Consolidation of the several States
Resp. 9. This is a mere Criticism in Terms--It will by United the States
secure us against exterior force.
[Objection] 10. An Aristocracy and so intended by the federal Convention
Resp. 10. The frequent Changes in the Senate, every 2 years some going out,
will prevent all Danger of caballing which is the greatest Danger of an Aristocracy.
[Objection] 11. The Trial by Jury not secured under the Appellate
Jurisdiction--
Resp. 11. The verdicts of Juries should in some Instances be revised--The
House of Lords have an Appellate Jurisdiction bouth as to Law and in Fact--so have the
Supreme Courts in Matters in the Orphans Courts. So of the Court of Errors and Appeals in
Disputes about Wills--So of Chancery who determines it Jus Testes--In Massachusetts and
New Hampshire, cases are removed into the Supreme Court by Appeal instead of Writs of Error.
1. By acceding to the Constitution you have the Wisdom and Experience of
the US. br[ought] to your aid.
2. You will thereby perpetuate our Independency by destroying the Hopes
of foreign and domestic Enemies.
3. You will encourage your Allies and other Powers will make Treaties
with us.
4. It will break our Parties and Divisions in every State and particularly
in this.
5. It will invigorate your Commerce--your Ship Building will flourish
under it--
If you not accede to it, there is no Prospect of getting another
Constitution--
It has the Seeds of Amendments in it.
Upon the most mature Deliberation, I pronounce the Constitution to be the
best on the Face of the Earth--
Mr Findley
The Principle on which the Chief Justice is that the Government should be
consolidated.
Mr Smiley
I never found we had the worst of the Argument until to night--we have no
People to laugh for us--We are not to be intimidated tho' the Gallery were armed with bayonets.
22 Minutes past 10 O'Clock AM. Began and Ended at 1 O'Clock p.m.
Mr Wilson
[Mr Wilson]
The document printed below was written in Yeates's hand and included with his Notes on the
ratifying convention deposited at Independence Hall by Mr. Shenk. It is apparently a draft
of the beginning of a speech which Yeates must have prepared for delivery on November 24,
the Saturday preceding the Friday he began to take his notes on the debates. On Saturday
the twenty-fourth Thomas McKean moved the adoption of the Constitution. In the ensuing
debate leading Antifederalists in the convention insisted that there be full and prolonged
discussion of every part of the Constitution and made it clear that it was their intention
to propose that the convention resolve itself into a committee of the whole in order to
assure this.(29) Most of Yeates's remarks are
directed against the expected proposal of the Antifederalist delegates that the convention
consider the federal Constitution as a committee of the
whole.(30)
The reports of the meeting of November 24 do not mention Yeates's having made a speech;
but whether Yeates actually spoke or not, this is a draft of the first part of a speech to
the convention which would have been pertinent to the proceedings of the convention only
on September 24, and the use of the personal pronouns and the way in which Yeates struck
out and added words make it clear that this was hardly a report of a speech delivered by
another but rather a draft of a speech to be delivered by Yeates
himself.(31)
Mr. President(32) 1.
See John Bach McMaster and Frederick D. Stone, eds., Pennsylvania and the
Federal Constitution, 1787-1788 (Philadelphia, 1888), vi.
2.
See ibid., 14-15. The Pennsyvlania Herald (Philadelphia) printed Dallas's
report on the meeting of Nov. 30 on Jan. 6, 1788.
3.
McMaster and Stone, eds., Pa. and the Federal Constitution, 14-15, 212n. The
judgment of McMaster and Stone to the effect that Thomas Lloyd "was bought up by the
Federalists" is corroborated by a story in the Maryland Gazette (Annapolis),
May 22, 1788, about the Maryland ratifying convention, where Thomas Lloyd appeared as the
shorthand reporter: "Mr. Lloyd, a warm and decided friend to the new constitution,
frequently expressed his concern at the silence of the majority, and
declared that it would never do to publish the objections and arguments against the
constitution without any answer.--After the convention was dissolved, the majority
made a collection for Mr. Lloyd, to defray his expences, and he declared his
intention not to publish what he had taken down--It is observable that Mr. Lloyd
has hitherto only published the speeches of two gentlemen of the Pennsylvania
convention in favour of the government. If Mr. Lloyd should publish the arguments
of the opposition in that convention, it will probabaly be after the decision by
all of the conventions." 4.
See McMaster and Stone, eds., Pa. and the Federal Convention, 204-413. Elliot's
Debates carries only that portion of the Pennsylvania debates published by Thomas
Lloyd. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption
of the Federal Constitution . . . 2d ed., II (Philadelphia, 1863), 415-546.
5.
"Notes of the Debate in the Pennsylvania Convention Taken by James Wilson. From the
Original Manuscript in the Historical Society of Pennsylvania," in McMaster and Stone,
eds., Pa. and the Federal Constitution, 765-785.
6.
H. Bartholomew Cox, ed., "The Convention Notes of Anthony Wayne," Manuscripts, XVI
(Winter 1964), 18-21.
7.
Jasper Yeates (1745-1817), a successful Lancaster attorney, became a justice of the
Supreme Court of Pennsylvania a few years after his fight for ratification in the
convention and died while in office after serving more than 20 years. He is well known
as the author of four volumes of Reports of Cases Adjudged in the Supreme Court of
Pennsyvlania . . . [1791-1808], published after his death in Philadelphia, 1817-19.
8.
Rudolph W. Shenk (1834-80) was a Lancaster attorney. How the Notes of Jasper Yeates
came into his custody is not known. The manuscript is in the Independence Hall Collection,
Specimen Number 2050, and is published here with the kind permission of the Superintendent,
Independence National Historical Park.
9.
Robert Whitehill (1738-1813), a delegate from Cumberland County, was one of the leading
opponents of ratification in the convention.
10.
William Findley (1741-1821), a delegate from Westmoreland County, was one of the most
determined opponents of the Constitution in the convention. According to both Dallas and
James Wilson, Thomas Hartley, Dr. Benjamin Rush, and Yeates spoke in answer to Whitehill's
opening speech on the thirtieth before Findley spoke. McMaster and Stone, eds., Pa.
and the Federal Constitution, 289-299, 768-770.
11.
John Smilie (1742-1812), a delegate from Fayette County, was a leading Antifederalist in
the convention.
12.
On Wednesday, Nov. 28, James Wilson had asserted on the floor of the convention that
"Virginia has no Bill of Rights." The statement by John Smilie answered Wilson. Smilie's
first sentence was true, but no copy of that officially adopted in Williamsburg on
June 12, 1776, was in the city of Philadelphia. What he read from the Remembrancer
was George Mason's original draft of the Virginia Declaration of Rights, reported with
amendments by the committee on May 27, 1776, first printed for the perusal of the members
in a handbill by Mr. Purdie and published in Dixon and Hunter's Virginia Gazette
(Williamsburg) of June 1, 1776, in the Pennsylvania Evening Post (Philadelphia)
on June 6, the Pennsylvania Ledger (Philadelphia), June 8, the Pennsylvania
Gazette, June 12, Maryland Gazette, June 13, and other newspapers throughout
America. It was published in John Almon's The Remembrancer . . . (London,
1775-84) within the year and from thence it spread throughout Europe. 13.
Thomas McKean (1734-1817), a delegate from Philadelphia City, was with James Wilson the
most influential champion of ratification in the Pennsylvania convention.
14.
James Wilson (1742-98), a delegate from Northumberland County, had been along with James
Madison the leading nationalist at the Constitutional Convention.
15.
Timothy Pickering (1745-1829), the delegate from Luzerne County, was later Secretary
of State and a leader of the New England Federalists.
16.
Stephen Chambers (1750-89) was a delegate from Lancaster County.
17.
Enoch Edwards (1751-1802) was a delegate from Philadelphia County.
18.
This point was made by Findley. See Wilson's "Note on the Debate," in McMaster and
Stone, eds., Pa and the Federal Constitution, 773.
19.
Wilson in his notes on the convention indicates that Smilie spoke on Dec. 4 and no one
else, but Wilson never included notes on his own speeches. Clearly what follows in the
text above are notes on a speech vigorously defending the proposed constitution, which
could hardly have been delivered by Smilie who along with Whitehill and Findley was a
member of the convention triumvirate which most bitterly opposed the Constitution.
Furthermore, Wilson's speech of Dec. 4 as reported by Lloyd follows the general outline
of the speech reported here by Yeates. The conclusion in inescapable that Yeates was
reporting on Wilson's speech and that it was an oversight on his part when he failed to
insert Wilson's name and thereby attributed it to Smilie. McMaster and Stone, eds.,
Pa. and the Federal Cosntitution, 313-349, 773-774.
20.
See Baron de Montesquieu, The Spirit of Laws, trans. Thomas Nugent, rev.
ed., I (New York, 1900), 9.
21.
See M. de Vattel, The Law of Nations; or, Principles of the Law of Nature . . .
(Dublin, 1787), 15-16.
23.
Thos. Forsey v. Waddel Cunningham (N. Y.) (1764) reported in William H. W. Sabine,
ed., Historical Memoires from 16 March 1763 to 9 July 1776 of William Smith . . .
(New York, 1956), 24-32; and in Colden to Lords of Trade, Nov. 7, 1764, Colden to Earl
of Halifax, Dec. 13, 1764, Representation of the Lords of Trade on Appeals from the
New-York Courts, Sept. 24, 1765, and Colden's Account of the State of the Province of
New-York, Dec. 6, 1765, all in E. B. O'Callaghan, ed., Documents Relative to the
Colonial History of the State of New-York, VII (Albany, 1856), 676-678, 681-685,
762-765, 797.
24.
See John Dickenson, Letters
from a Farmer in Pennsylvania, To the Inhabitants of the
British Colonies (Philadelphia, 1774), 83-96.
25.
See William Blackstone, Commentaries on the Laws of England III (Philadelphia,
1772), 380.
26.
See An Universal History, from the Earliest Account of Time. Compiled from Original
Authors; and Illustrated with Maps, Cuts, Notes, Etc., XXXIII (London, 1759).
27.
See John Locke, Two Treatises of Government . . . ed. Peter Laslett (Cambridge,
Eng., 1960), 380-381, 386-387.
28.
On Dec. 12 the convention voted 46 to 23 to "assent to and ratify the plan of federal
government, agreed to and recommended by the late federal convention." On the next day,
Thursday the twelfth, a committee composed of McKean, Wilson, and Yeates presented the
"form" in which the ratification should be read publicly later that day at the
courthouse. McMaster and Stone, eds., Pa. and the Federal Constitution, 424-428.
The draft of the "form" printed here was written in the manuscript of Yeates's notes
in what may not be Yeates's hand and appears after Yeates's notes on Wilson's speech
of the morning of Dec. 11 and before his notes on Wilson's speech of the morning of
Dec. 11 and before his notes on Wilson's speech of that afternoon. Wilson was the only
speaker of the day. Ibid., 370-418.
30.
In a trial of strength between the two factions on the following Monday, the
Federalists defeated by a vote of 44 to 24 Antifederalist Robert Whitehill's motions
which would have opened the way to the convention's resolving itself into a committee
of the whole. Ibid., 234-237.
31.
In the printed text, Yeates's corrections and insertions are not indicated. Instead
they have been incorporated.
32.
Frederick Augustus Muhlenberg (1750-1801), a delegate from Montgomery County, was
elected president of the convention on Nov. 21 by a vote of 30 votes to McKean's 29.
Ibid., 213.
That Government is founded on Contract does not appear to be founded on
Expereience or supported upon the Principles of Freedom and Reason.
The Doctrine is politically true in Gr[eat] Brit[ain] because it was
recognized at the Revolution.
It destroys the Rights of Amendment--because the Contract if made ought
to be persued and kept up.
In America the Supreme Power resides [in] the People who have it in their
Power to ordain such Systems as may be most suitable to their Interests. In this Instance
they differ from Gr[eat] Brit[ain].
Why then talk of a Violation of the Confederation? Cannot the People
change their Constitution if they find thereby their common Safety endangered?
Mr. Wilson began to speak 10 Minutes after 4 PM. and spoke again 2 Hours.
We the Delegates of the People of the State of Pennsylvania met in
general Convention do in their name and by their Authority and for ourselves assent
to ratify the foregoing Constitution for the United States of America
Done in Convention at Philadelphia the 13th day of December in the year
of our Lord one thousand seven hundred eighty seven and of the Independence of the United
States the twelfth.
In witness hereunto subscribed our
names--(28)
I congratulate you this Business drawing to a Conclusion.
It is of great Consequence to us and our Posterity whether we shall
continue under a Confederation without efficient Powers to carry it's Purposes into
Execution, despised abroad and without Credit at home. Or whether we shall adopt a
System of Union, with energetic Powers, which can effectually carry into Execution,
such Measures as may be calculated and devised for the Common Safety
The Gentlemen in Opposition cannot complain of Precipitancy or Hurry--I
beg to ask whether we have not on the Hand, delayed and procrastinated the main Question
perhaps unnecessarily and improvidently.
The objections to the new federal Constitution have been urged repeatedly
in different Lights--and the same Arguments have been brought before the Convention in a
Variety of Shapes--
Objection 1. They have urged the Want of a Bill of Rights, that the right
of Conscience and Liberty of the Press are not thereby secured to us
1 Resp[onse]. We answer such an Enumeration is unnecessary and at best dangerous. In the
Instances where Power is not delegated to our Rulers, the Rights still remain in the People.
Whatever is not given is reserved. Many of the States have no Bills of Rights in the
Formation of their Constitutions.
Objections 2. It is said to be a consolidated Government, annihilating and absorbing all
the State Legislatures which must necessarily fall of themselves
2 Resp[onse]. The Government is consolidated to certain Purposes and Vigor given to the
general Union--The Sovereignty rests with the People--In them consists the Supreme Power--We
are a confederate Republic with proper balancing Powers vested in certain Bodies for the
Benefit of the Whole--The Existence of the federal Constitution must depend on the
Continuance of the State Legislatures in the Case of the Election of the House of
Representatives, the Senate, the President and the judges. A Republican form of Government
is guaranteed to each State--and are to be guarded from foreign as well as domestic
Violence.--The Powers given to the new Congress reach to Objects beyond the Compass of the
State Legislatures--They only are competent to it.
I rise in support of the Motion made by the hon. Members that this
Convention do assent to and ratify the Constitution of the united States as lately
agreed to on the 17 September last by the Convention of the United States.
The Intentions of the Members have been fully and clearly stated. No
Precipitation of Hurry is affected. A fair dispassionate deliberate Discussion of
the Principles of the System proposed to us is desired by all; and that the most
ample Time should be given for the Bringing forward and Investigating every
Objection that can be made to the new Constitution. Precipitation and Hurry on the one
Hand and affected Delay and unnecessary Procrastination on the other should equally be
avoided.
The primary Question when will be in what Form or Shape our
Deliberations shall be conducted. Whether we shall proceed to the Discussion in full
Convention as a Body delegated for this express Purpose,--or whether preserving the
general System of the House of Assembly on Bills before them, we shall resolve
ourselves into a Committee of the whole, choose a Chairman, take it up Paragraph by
Paragraph, collect the Votes on each Paragraph and make Report to the Convention of
our Proceedings and Resolutions.
I am strongly inclinced to pursue the first mode on Principles of
Propriety, law and public Utility.
We are not met here to amend or alter the Constitution--We have no
such Powers delegated to us. We do not resemble the Legislature in this Particular,
nor are their Precedents binding on us. The Powers which carried into Exercise
necessarily produce this Effect with them of resolving themselves into a Committee
of the whole to alter amend and improve any particular Bill, do not exist with us.
The Cause ceasing with us the Effect must cease also. We are brought here for the
Discussion of a simple Point and in the Event to determine whether we will ratify or
reject the Constitution offered to us. This is the grand Questions which we are to
solve.
If we go into a Committee of the whole we shall after spending
considerable Time on the System, have to travel the same Ground over again in
Convention, and thereby incur unnecessary Expence as well as a considerable Loss
of Time.
But why debate it Paragraph by Paragraph? Surely there are at least
some Things in it unexceptionable and [sic]
NOTES
A resolution was called up for debate in the First Congress on Sept. 26, 1789,
which charged Thomas Lloyd with "the most glaring deviations from truth; often distorting
the arguments of the members from the true meaning; . . . and, in a great many instances,
mutilating, and, not unfrequently, surpressing whole arguments upon subjects of the
greatest moment; thus throwing over the whole proceedings a thick veil of misrepresentation
and error." Joseph Gales, comp., The Debates and Proceedings in the Congress of the
United States . . . (Washington, 1834-56), I, 952.
That read by Mr. Smilie was the same George Mason's draft from which Whitehill
and Franklin had copied for the Pennsylvania Declaration of Rights of Sept. 28, 1776.
Diary entry of June 23, 1779, in Charles Francis Adams, ed., The Works of John
Adams . . . , III (Boston, 1851), 220; a Declaration of the Rights of the
Inhabitants of the Commonwealth, or State of Pennsylvania, in Francis Newton Thorpe,
The Federal and State Constitutions, Colonial Charters, and Other Organic Laws
. . . (Washington, 1909), V, 3082. The "French translation," spoken of by Mr. Smilie,
was that translated with the assistance of Benjamin Franklin in 1783 for French
editions of American Constitutions published at Paris that year, and which
powerfully contributed to the French Revolution. See Durand Echeverria, French
Publications of the Declaration of Indpendence and the American Constitutions, 1776,
1783, in Bibliographical Society of America, Papers, XLVII (New York,
1953), 313. The same draft of May 27, 1776, in 18 paragraphs became the basis for the
first proposal of a federal bill of rights by the Pennsylvania minority on Dec. 12, 1787.
It was prepared by Whitehill, Findley, and Smilie. Many parts of their proposal were
almost exact copies of that which Smilie read on Nov. 30.
