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Old South Leaflets

No. 226

Observations on the New Constitution, and on the Federal and State Conventions By a Columbian Patriot

Sic transit Gloria Americana

with a Prefatory Note by LAWRENCE W. TOWNER Massachusetts Institute of Technology

Published by THE OLD SOUTH ASSOCIATION Old South Meeting-house, Boston, Massachusetts

Copyright 1955 by the Old South Association. Reproduction permitted to all who give credit to the Association.

This pamphlet, first printed in Boston shortly after Massachusetts ratified the Federal Constitution on February 6, 1788, achieved its largest circulation in New York where it was issued both in pamphlet form and in a newspaper series during the spring of that year. At the time of publication the Anti-Federalist cause still seemed hopeful, for despite the fact that Massachusetts was the sixth state to ratify (in the two previous months, Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut had voted affirmatively), the approval of three more states was required before the Constitution would become operative. Even when Maryland, South Carolina, and New Hampshire would make the total nine (between April 26 and June 21), no continental government could be effective without Virginia and New York, where strong opposition existed (they ratified June 25th and July 26th, respectively).

The objections to the new Constitution expressed in the Observations are typical of Anti-Federalist thought from New England to Georgia. Many of the details seem querulous today; many were met, as far as the author was concerned, by the Bill of Rights. Still, the underlying questions asked are as vital now as they were then. Essentially, the problem facing that generation was how to organize political power so that it could be placed safely in the hands of men. Government had to be made strong enough to survive, yet it had to be kept properly tender about individual life, liberty, and property. As might be expected, the problem was seen in terms of rights against government rather than in terms of the citizen’s responsibility to government, but in the twentieth century’s era of absolutism it is useful to be reminded, in Mrs. Warren’s words, “that man is born free and possessed of certain unalienable rights....”

For many years this pamphlet was attributed to a leading Anti-Federalist, Elbridge Gerry. However, the publication of Mercy Otis Warren’s statement of authorship in a letter of May, 1788, and evidence within the work that she was its author and Gerry was not, would seem to indicate that she should be given the honors.

The reproduction of the Observations here made is from the original in the Massachusetts Historical Society with the kind permission of Mr. Stephen T. Riley. The first four and one-third pages have been omitted.

Observations on The New Constitution

All writers on government agree, and the feelings of the human mind witness the truth of these political axioms, that man is born free and possessed of certain unalienable rights—that government is instituted for the protection, safety and happiness of the people, and not for the profit, honour, or private interest of any man, family, or class of men—That the origin of all power is in the people, and that they have an incontestible right to check the creatures of their own creation, vested with certain powers to guard the life, liberty and property of the community: And if certain selected bodies of men, deputed on these principles, determine contrary to the wishes and expectations of their constituents, the people have an undoubted right to reject their decisions, to call for a revision of their conduct, to depute others in their room, or if they think proper, to demand further time for deliberation on matters of the greatest moment: it therefore is an unwarrantable stretch of authority or influence, if any methods are taken to preclude this reasonable and peaceful mode of enquiry and decision. And it is with inexpressible anxiety, that many of the best friends of the Union of the States—to the peaceable and equal participation of the rights of nature, and to the glory and dignity of this country, behold the insidious arts, and the strenuous efforts of the partisans of arbitrary power, by their vague definitions of the best established truths, endeavoring to envelope the mind in darkness the concomitant of slavery, and to lock the strong chains of domestic despotism on a country, which by the most glorious and successful struggles is but newly emancipated from the spectre of foreign dominion.—But there are certain seasons in the course of human affairs, when Genius, Virtue, and Patriotism, seems [sic] to nod over the vices of the times, and perhaps never more remarkably, than at the present period; or we should not see such a passive disposition prevail in some, who we must candidly suppose, have liberal and enlarged sentiments; while a supple multitude are paying a blind and idolatrous homage to the opinions of those who by the most precipitate steps are treading down their dear bought privileges; and who are endeavouring by all the arts of insinuation, and influence, to betray the people of the United States, into an acceptance of a most complicated system of government; marked on the one side with the dark, secret and profound intrigues, of the statesman, long practised in the purlieus of despotism; and on the other, with the ideal projects of young ambition, with its wings just expanded to soar to a summit, which imagination has painted in such gawdy colours as to intoxicate the inexperienced votary, and to send him rambling from State to State, to collect materials to construct the ladder of preferment.

But as a variety of objections to the heterogeneous phantom, have been repeatedly laid before the public, by men of the best abilities and intentions; I will not expatiate long on a Republican form of government, founded on the principles of monarchy—a democratick branch with the features of aristocracy—and the extravagance of nobility pervading the minds of many of the candidates for office, with the poverty of peasantry hanging heavily on them, and insurmountable, from their taste for expence, unless a general provision should be made in the arrangement of the civil list, which may enable them with the champions of their cause to “sail down the new pactolean channel.” Some gentlemen, with laboured zeal, have spent much time in urging the necessity of government, from the embarrassments of trade—the want of respectability abroad and confidence of the public engagements at home:—These are obvious truths which no one denies; and there are few who do not unite in the general wish for the restoration of public faith, the revival of commerce, arts, agriculture, and industry, under a lenient, peaceable and energetick government: But the most sagacious advocates for the party have not by fair discussion, and rational argumentation, evinced the necessity of adopting this many headed monster; of such motley mixture, that its enemies cannot trace a feature of Democratick or Republican extract; nor have its friends the courage to denominate a Monarchy, an Aristocracy, or an Oligarchy, and the favoured bantling must have passed through the short period of its existence without a name, had not Mr. Wilson, in the fertility of his genius, suggested the happy epithet of a Federal Republic.—But I leave the field of general censure on the secrecy of its birth, the rapidity of its growth, and the fatal consequences of suffering it to live to the age of maturity, and will particularize some of the most weighty objections to its passing through this continent in a gigantic size.—It will be allowed by every one that the fundamental principle of a free government, is the equal representation of a free people.—And I will first observe with a justly celebrated writer, “That the principal aim of society is to protect individuals in the absolute rights which were vested in them by the immediate laws of nature, but which could not be preserved in peace, without the mutual intercourse which is gained by the institution of friendly and social communities.” And when society has thus deputed a certain number of their equals to take care of their personal rights, and the interest of the whole community, it must be considered that responsibility is the great security of integrity and honour; and that annual election is the basis of responsibility,—Man is not immediately corrupted, but power without limitation, or amenability, may endanger the brightest virtue—whereas a frequent return to the bar of their Constituents is the strongest check against the corruptions to which men are liable, either from the intrigues of others of more subtle genius, or the propensities of their own hearts,—and the gentlemen who have so warmly advocated in the late Convention of the Massachusetts, the change from annual to biennial elections; may have been in the same predicament, and perhaps with the same views that Mr. Hutchinson once acknowledged himself, when in a letter to Lord Hillsborough, he observed, “that the grand difficulty of making a change in government against the general bent of the people had caused him to turn his thoughts to a variety of plans, in order to find one that might be executed in spite of opposition,” and the first he proposed was that, “instead of annual, the elections should be only once in three years:” but the Minister had not the hardiness to attempt such an innovation, even in the revision of colonial charters: nor has any one ever defended Biennial, Triennial, or Septennial, Elections, either in the British House of Commons, or in the debates of Provincial assemblies, on general and free principles: but it is unnecessary to dwell long on this article, as the best political writers have supported the principles of annual elections with a precision, that cannot be confuted, though they may be darkened, by the sophistical arguments that have been thrown out with design, to undermine all the barriers of freedom.

2. There is no security in the profered [sic] system, either for the rights of conscience or the liberty of the Press: Despotism usually while it is gaining ground, will suffer men to think, say, or write what they please; but when once established, if it is thought necessary to subserve the purposes, of arbitrary power, the most unjust restrictions may take place in the first instance, and an imprimatur on the Press in the next, may silence the complaints, and forbid the most decent remonstrances of an injured and oppressed people.

3. There are no well defined limits of the Judiciary Powers, they seem to be left as a boundless ocean, that has broken over the chart of the Supreme Lawgiver, “thus far shalt thou go and no further,” and as they cannot be comprehended by the clearest capacity, or the most sagacious mind, it would be an Herculean labour to attempt to describe the dangers with which they are replete.

4. The Executive and the Legislative are so dangerously blended as to give just cause of alarm, and every thing relative thereto, is couched in such ambiguous terms—in such vague and indefinite expression, as is a sufficient ground without any objection, for the reprobation of a system, that the authors dare not hazard to a clear investigation.

5. The abolition of trial by jury in civil causes.—This mode of trial the learned Judge Blackstone observes, “has been coeval with the first rudiments of civil government, that property, liberty and life, depend on maintaining in its legal force the constitutional trial by jury.” He bids his readers pause, and with Sir Matthew Hale observes, how admirably this mode is adapted to the investigation of truth beyond any other the world can produce. Even the party who have been disposed to swallow, without examination, the proposals of the secret conclave, have started on a discovery that this essential right was curtailed; and shall a privilege, the origin of which may be traced to our Saxon ancestors—that has been a part of the law of nations, even in the feudatory systems of France, Germany and Italy—and from the earliest records has been held so sacred, both in ancient and modern Britain, that it could never be shaken by the introduction of Norman customs, or any other conquests or change of government—shall this inestimable privilege be relinquished in America—either thro’ the fear of inquisition for unaccounted thousands of public monies in the hands of some who have been officious in the fabrication of the consolidated system, or from the apprehension that some future delinquent possessed of more power than integrity, may be called to a trial by his peers in the hour of investigation.

6. Though it has been said by Mr. Wilson and many others, that a Standing-Army is necessary for the dignity and safety of America, yet freedom revolts at the idea, when the Divan, or the Despot, may draw out his dragoons to suppress the murmurs of a few, who may yet cherish those sublime principles which call forth the exertions, and lead to the best improvement of the human mind. It is hoped this country may yet be governed by milder methods than are usually displayed beneath the bannerets of military law.—Standing armies have been the nursery of vice and the bane of liberty from the Roman legions to the establishment of the artful Ximenes, and from the ruin of the Cortes of Spain, to the planting of the British cohorts in the capitals of America:—By the edicts of an authority vested in the sovereign power by the proposed constitution, the militia of the country, the bulwark of defence, and the security of national liberty is no longer under the controul of civil authority; but at the rescript of the Monarch, or the aristocracy, they may either be employed to extort the enormous sums that will be necessary to support the civil list—to maintain the regalia of power—and the splendour of the most useless part of the community, or they may be sent into foreign countries for the fulfilment of treaties, stipulated by the President and two thirds of the Senate.

7. Notwithstanding the delusory promise to guarantee a Republican form of government to every State in the Union—If the most discerning eye could discover any meaning at all in the engagement, there are no resources left for the support of internal government, or the liquidation of the debts of the State. Every source of revenue is in the monopoly of Congress, and if the several legislatures in their enfeebled state, should against their own feelings be necessitated to attempt a dry tax for the payment of their debts, and the support of internal police, even this may be required for the purposes of the general government.

8. As the new Congress are empowered to determine their own salaries, the requisitions for this purpose may not be very moderate, and the drain for public moneys will probably rise past all calculation: and it is to be feared when America has consolidated its despotism, the world will witness the truth of the assertion—“that the pomp of an eastern monarch may impose on the vulgar who may estimate the force of a nation by the magnificence of its palaces; but the wise man judges differently, it is by that very magnificence he estimates its weakness. He sees nothing more in the midst of this imposing pomp, where the tyrant sets enthroned, than a sumptuous and mournful decoration of the dead; the apparatus of a fastuous funeral, in the centre of which is a cold and lifeless lump of unanimated earth, a phantom of power ready to disappear before the enemy, by whom it is despised!”

9. There is no provision for a rotation, nor anything to prevent the perpetuity of office in the same hands for life; which by a little well timed bribery, will probably be done, to the exclusion of men of the best abilities from their share in the offices of government.—By this neglect we lose the advantages of that check to the overbearing insolence of office, which by rendering him ineligible at certain periods, keeps the mind of man in equilibrio, and teaches him the feelings of the governed, and better qualifies him to govern in his turn.

10. The inhabitants of the United States, are liable to be draged [sic] from the vicinity of their own country, or state, to answer the litigious or unjust suit of an adversary, on the most distant borders of the Continent: in short the appellate jurisdiction of the Supreme Federal Court, includes an unwarrantable stretch of power over the liberty, life, and property of the subject, through the wide Continent of America.

11. One Representative to thirty thousand inhabitants is a very inadequate representation; and every man who is not lost to all sense of freedom to his country, must reprobate the idea of Congress altering by law, or on any pretence whatever, interfering with any regulations for time, places, and manner of choosing our own Representatives.

12. If the sovereignty of America is designed to be elective, the circumscribing the votes to only ten electors in this State, and the same proportion in all the others, is nearly tantamount to the exclusion of the voice of the people in the choice of their first magistrate. It is vesting the choice solely in an aristocratic junto, who may easily combine in each State to place at the head of the Union the most convenient instrument for despotic sway.

13. A Senate chosen for six years will, in most instances, be an appointment for life, as the influence of such a body over the minds of the people will be coequal to the extensive powers with which they are vested, and they will not only forget, but be forgotten by their constituents—a branch of the Supreme Legislature thus set beyond all responsibility is totally repugnant to every principle of a free government.

14. There is no provision by a bill of rights to guard against the dangerous encroachments of power in too many instances to be named: but I cannot pass over in silence the insecurity in which we are left with regard to warrants unsupported by evidence—the daring experiment of granting writs of assistance in a former arbitrary administration is not yet forgotten in the Massachusetts; nor can we be so ungrateful to the memory of the patriots who counteracted their operation, as so soon after their manly exertions to save us from such a detestable instrument of arbitrary power, to subject ourselves to the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure. We are told by a gentleman of too much virtue and real probity to suspect he has a design to deceive—“that the whole constitution is a declaration of rights,”—but mankind must think for themselves, and to many very judicious and discerning characters, the whole constitution with very few exceptions appears a perversion of the rights of particular states, and of private citizens.—But the gentleman goes on to tell us, “that the primary object is the general government, and that the rights of individuals are only incidentally mentioned, and that there was a clear impropriety in being very particular about them.” But, asking pardon for dissenting from such respectable authority, who has been led into several mistakes, more from his predilection in favour of certain modes of government, than from a want of understanding or veracity. The rights of individuals ought to be the primary object of all government, and cannot be too securely guarded by the most explicit declarations in their favor. This has been the opinion of the Hampdens, the Pyms, and many other illustrious names, that have stood forth in defence of English liberties; and even the Italian master in politics, the subtle and renowned Machiavelli acknowledges, that no republic ever yet stood on a stable foundation without satisfying the common people.