Thomas Lloyds Notes of the Pennsylvania Ratification Convention (December 10, 1787)

THOMAS McKEAN: Sir, you have under your consideration a matter of very great weight and importance, not only to the present generation but to posterity; for where the rights and liberties of the people are concerned, there certainly it is fit to proceed with the utmost caution and regard. You have done so hitherto. The power of this Convention, being derived from the people of Pennsylvania, by a positive and voluntary grant, cannot be extended further than what this positive grant hath conveyed. You have been chosen by the people, for the sole purpose of "assenting to and ratifying the Constitution, proposed for the future government of the United States, with respect to their general and common concerns," or of rejecting it. It is a sacred trust; and, as on the one hand, you ought to weigh well the innovations it will create in the governments of the individual states and the dangers which may arise by its adoption; so upon the other hand, you ought fully to consider the benefits it may promise and the consequences of a rejection of it. You have hitherto acted strictly conformably to your delegated power; you have agreed, that a single question can come before you; and it has been accordingly moved, that you resolve, "to assent to and ratify this Constitution." Three weeks have been spent in hearing the objections that have been made against it, and it is now time to determine whether they are of such a nature as to overbalance any benefits or advantages that may be derived to the State of Pennsylvania by your accepting it.

Sir, I have as yet taken up but little of your time; notwithstanding this, I will endeavor to contract what occurs to me on the subject. And in what I have to offer, I shall observe this method: I will first consider the arguments that have been used against this Constitution, and then give my reasons why I am for the motion.

The arguments against the Constitution are, I think, chiefly these.

First. That the elections of Representatives and Senators are not frequent enough to insure responsibility to their constituents.

Second. That one Representative for thirty thousand persons is too few.

Third. The Senators have a share in the appointment of certain officers and are to be the judges on the impeachment of such officers. This is blending the executive with the legislative and judicial departments, and is likely to screen the offenders impeached, because of the concurrence of a majority of the Senate in their appointment.

Fourth. That the Congress may by law deprive the electors of a fair choice of their Representatives, by fixing improper times, places, and modes of election.

Fifth. That the powers of Congress are too large, particularly inlaying internal taxes and excises, because they may lay excessive taxes and leave nothing for the support of the state governments.

In raising and supporting armies, and that the appropriation of money for that use, should not be for so long a term as two years.

In calling forth the militia on necessary occasions; because they may call them from one end of the continent to the other, and want only harrass them; besides they may coerce men to act in the militia, whose consciences are against bearing arms in any case.

In making all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

And in declaring, that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.

That migration or importation of such persons, as any of the states shall admit, shall not be prohibited prior to 1808, nor a tax or duty imposed on such importation exceeding ten dollars for each person.

Sixth. That the whole of the executive power is not lodged in the President alone, so that there might be one responsible person.

That he has the sole power of pardoning offenses against the United States, and may therefore pardon traitors for treasons committed in consequence of his own ambitious and wicked projects or those of the Senate.

That the Vice President is a useless officer, and being an executive officer, is to be President of the Senate, and in case of a division is to have the casting voice.

Seventh. The judicial power shall be vested in one Supreme Court. An objection is made, that the compensation for the services of the judges shall not be diminished during their continuance in office, and this is contrasted with the compensation to the President, which is to be neither increased nor diminished during the period for which he shall have been elected. But that of the judges may be increased, and the judge may hold other offices of a lucrative nature, and his judgment be thereby warped.

That in all the cases enumerated, except where the Supreme Court has original jurisdiction, "they shall have appellate jurisdiction, both as to law and facts, with such exceptions, and under such regulations as the congress shall make." From hence is inferred that the trial by jury is not secured.

That they have jurisdiction between citizens of different states.

Eighth. That there is no bill or declaration of rights in this Constitution. Ninth. That this is a consolidation of the several states, and not a confederation.

Tenth. It is an aristocracy and was intended to be so by the framers of it.

The first objection that I heard advanced against this Constitution, I say, sir, was That the elections of Representatives and Senators are not frequent enough to insure responsibility to their constituents.

This is a subject that most men differ about, but there are more considerations than that of mere responsibility. By this system the House of Representatives is composed of persons chosen every second year by the people of the several states; and the Senators every six years by the legislatures.7 Whether the one or the other of these periods are of too long duration is a question to which various answers will be given; some persons are of opinion that three years in the one case, and seven in the other, would be a more eligible term than that adopted in this Constitution. In Great Britain, we find the House of Commons elected for seven years; the House of Lords is perpetual; and the king never dies. The Parliament of Ireland is octennial; in various other parts of the British dominions, the house of representatives are during the royal pleasure, and have been continued twenty years; this, sir, is a term undoubtedly too long. In a single state, I think annual elections most proper, but then there ought to be more branches in the legislature than one. An annual legislature possessed of supreme power may be properly termed an annual despotism—and, like an individual, they are subject to caprice, and act as party spirit or spleen dictates; hence that instability to our laws, which is the bane of republican governments. The framers of this Constitution wisely divided the legislative department between two houses subject to the qualified negative of the President of the United States, tho this government embraces only enumerated powers. In a single state, annual elections may be proper, the more so, when the legislative powers extend to all cases; but in such an extent of country as the United States, and when the powers are circumscribed, there is not that necessity, nor are the objects of the general government of that nature as to be acquired immediately by every capacity. To combine the various interests of thirteen different states requires more extensive knowledge than is necessary for the legislature of any one of them; two years are therefore little enough, for the members of the House of Representatives to make themselves fully acquainted with the views, the habits, and interests of the United States. With respect to the Senate, when we consider the trust reposed in them, we cannot hesitate to pronounce, the period assigned to them is short enough; they possess, in common with the House of Representatives, legislative power; with its concurrence they also have power to declare war; they are joined with the President in concluding treaties; it therefore behooves them to be conversant with the politics of the nations of the world and the dispositions of the sovereigns, and their ministers; this requires much reading and attention. And believe me, the longer a man bends his study to any particular subject, the more likely he is to be master of it. Experience and practice will assist genius and education. I therefore think the time allowed, under this system, to both houses to be extremely proper. This objection has been made repeatedly, but it can only have weight with those who are not at the pains of thinking on the subject. When anything, sir, new or great is done, it is very apt to create a ferment among those out of doors who, as they cannot always enter into the depth and wisdom of councils, are too apt to censure what they do not understand; upon a little reflection and experience, the people often find that to be a singular blessing which at first they deemed a curse.

Second. "That one Representative for thirty thousand persons is too few." There will be, sir, sixty-five in the House of Representatives and twenty-six in the Senate, in all ninety-one, who, together with the President, are to make laws in the several particular matters entrusted to them, and which are all enumerated and expressed. I think the number sufficient at the present, and in three years time, when a census or actual enumeration must take place, they will be increased, and in less than twenty-five years they will be more than double. With respect to this, different gentlemen in the several states will differ, and at last the opinion of the majority must govern.

Third. "The Senators have a share in the appointment of certain officers, and are to be the judges on the impeachment of such officers. This is blending the executive with the legislative and judicial departments, and is likely to screen the offenders impeached because of the concurrence of a majority of the Senate in their appointment."

The President is to nominate to office, and with the advice and consent of the Senate appoint officers, so that he is the responsible person, and when any such impeachment shall be tried, it is more than probable, that not one of the Senate, who concurred in the appointment, will be a Senator, for the seats of a third part are to be vacated every two years, and of all in six.

As to the Senators having a share in the executive power, so far as to the appointment of certain officers, I do not know where this restraint on the President could be more safely lodged. Some may think a privy councillor might have been chosen by every state, but this could little mend the matter if any, and it would be a considerable additional expense to the people. Nor need the Senate be under any necessity of sitting constantly, as has been alleged, for there is an express provision made to enable the President to fill up all vacancies that may happen during their recess; the commissions to expire at the end of the next sessions.

As to impeachments, the objection is much stronger against the Supreme Executive Council of Pennsylvania.

The House of Lords in Great Britain are judges in the last resort in all civil causes and besides have the power of trying impeachments.

On the trial of impeachments the Senators are to be under the sanction of an oath or affirmation besides the other ties upon them to do justice; and the bias is more likely to be against the officer accused, than in his favor, for there are always more persons disobliged than the contrary when an office is given away, and the expectants of office are more numerous than the possessors.

Fourth. "That the Congress may by law deprive the electors of a fair choice of their Representatives by fixing improper times, places and modes of election."

Every House of Representatives are of necessity to be the judges of the elections, returns, and qualifications of its own members. It is therefore their province, as well as duty, to see, that they are fairly chosen, and are the legal members; for this purpose, it is proper they should have it in their power to provide that the times, places, and manner of election should be such as to insure free and fair elections.

Annual congresses are expressly secured; they have only a power given to them to take care that the elections shall be at convenient and suitable times and places, and conducted in a proper manner; and I cannot discover why we may not entrust these particulars to the representatives of the United States with as much safety as to those of the individual states.

In some states the electors vote viva voice, in others by ballot; they ought to be uniform, and the elections held on the same day throughout the United States to prevent corruption or undue influence. Why are we to suppose that Congress will make a bad use of this power, more than the representatives in the several states?

It is said "that the powers of Congress, under this Constitution are too large, particularly in laying internal taxes and excises, because they may lay excessive taxes and leave nothing for the support of the state governments." Sir, no doubt but you will discover, on consideration, the necessity of extending these powers to the government of the Union. If they have to borrow money, they are certainly bound in honor and conscience to pay the interest, until they pay the principal, as well to the foreign as to the domestic creditor; it therefore becomes our duty to put it in their power to be honest. At present, sir, this is not the case, as experience has fully shown. Congress have solicited and required the several states to make provision for these purposes; has one state paid its quota? I believe not one of them; and what has been the result? Foreigners have been compelled to advance money, to enable us to pay the interest due them on what they furnished to Congress during the late war. I trust, we have had experience enough to convince us that Congress ought no longer to depend upon the force of requisition. I heard it urged, that Congress ought not to be authorized to collect taxes until a state had refused to comply with this requisition. Let us examine this position. The engagements entered into by the general government render it necessary that a certain sum shall be paid in one year; notwithstanding this, they must not have power to collect it until the year expires, and then it is too late. Or is it expected that Congress would borrow the deficiency? Those who lent us in our distress have little encouragement to make advances again to our government; but give the power to Congress to lay such taxes as may be just and necessary, and public credit will revive. Yet, because they have the power to lay taxes and excise, does it follow that they must? For my part, I hope it may not be necessary; but if it is, it is much easier for the citizens of the United States to contribute their proportion, than for a few to bear the weight of the whole principal and interest of the domestic debt; and there is perfect security on this head, because the regulation must equally affect every state, and the law must originate with the immediate Representatives of the people, subject to the investigation of the state representatives. But is the abuse an argument against the use of power? I think it is not; and, upon the whole, I think this power wisely and securely lodged in the hands of the general government; though on the first view of this work, I was of opinion they might have done without it; but, sir, on reflection, I am satisfied that it is not only proper, but that our political salvation may depend upon the exercise of it.

The next objection is against "the power of raising and supporting armies, and the appropriation of money for that use should not be for so long a term as two years." Is it not necessary that the authority superintending the general concerns of the United States should have the power of raising and supporting armies? Are we, sir, to stand defenseless amidst conflicting nations? Wars are inevitable, but war cannot be declared without the consent of the immediate Representatives of the people; there must also originate the law which appropriates the money for the support of the army, yet they can make no appropriation for a longer term than two years; but does it follow that because they may make appropriations for that period, that they must or even will do it? The power of raising and supporting armies is not only necessary, but is enjoyed by the present Congress, who also judge of the expediency or necessity of keeping them up. In England there is a standing army, though in words it is engaged but for one year. Yet is it not kept constantly up? Is there a year that Parliament refuses to grant them supplies? Though this is done annually, it might be done for any longer term. Are not their officers commissioned for life, and when they exercise this power with so much prudence, shall the representatives of this country be suspected the more, because they are restricted to two years?

It is objected that the powers of Congress are too large, because "they have the power of calling forth the militia on necessary occasions, and may call them from one end of the continent to the other and wantonly harrass them; besides they may coerce men to act in the militia, whose consciences are against bearing arms in any case."11 It is true, by this system, power is given to Congress to organize, arm, and discipline the militia, but everything else is left to the state governments; they are to officer and train them. Congress have also the power of calling them forth, for the purpose of executing the laws of the Union, suppressing insurrections, and repelling invasions; but can it be supposed they would call them in such case from Georgia to New Hampshire? Common sense must oppose the idea.12

Another objection was taken from these words of the Constitution: "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department, or officer thereof."13 And in declaring "that this Constitution, and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." This has at last been conceded, that though it is explicit enough, yet it gives to Congress no further powers than those already enumerated.14 Those that first said it gave to Congress the power superseding the state governments cannot persist in it; for no person can, with a tolerable face, read the clauses over and infer that such may be the consequence.

Provision is made that Congress shall have power to prohibit the importation of slaves after the year 1808, but the gentlemen in opposition accuse this system of a crime, because it has not prohibited them at once. I suspect those gentlemen are not well acquainted with the business of the diplomatic body, or they would know that an agreement might be made, that did not perfectly accord with the will and pleasure of anyone person. Instead of finding fault with what has been gained, I am happy to see a disposition in the United States to do so much.

The next objections have been against the executive power; it is complained, "because the whole of the executive power is not lodged in the President alone, so that there might be one responsible person; he has the sole powers of pardoning offenses against the United States, and may therefore pardon traitors for treasons committed in consequence of his own ambitious or wicked projects or those of the Senate."

Observe the contradiction, sir, in these two objections; one moment the system is blamed for not leaving all executive authority to the President alone, the next it is censured for giving him the sole power to pardon traitors. I am glad to hear these objections made, because it forebodes an amendment in that body in which amendment is necessary. The President of the United States must nominate to all offices, before the persons can be chosen; he here consents and becomes liable. The Executive Council of Pennsylvania appoint officers by ballot, which effectually destroys responsibility. He may pardon offense, and hence it is inferred that he may pardon traitors for treason committed in consequence of his own ambitious and wicked projects. The Executive Council of Pennsylvania can do the same. But the President of the United States may be impeached before the Senate and punished for his crimes.

"The Vice President is an useless officer." Perhaps the government might be executed without him, but there is a necessity of having a person to preside in the Senate to continue a full representation of each state in that body. The chancellor of England is a judicial officer, yet he sits in the House of Lords.

The next objection is against the judicial department. The judicial power shall be vested in one Supreme Court.18 An objection is made that the compensation for the services of the judges shall not be diminished during their continuance in office, and this is contrasted with the compensation of the President, which is to be neither increased nor diminished during the period for which he shall be elected. But that of the judges may be increased, and the judges may hold other offices of a lucrative nature, and his judgment be thereby warped.19

Do gentlemen not see the reason why this difference is made? Do they not see that the President is appointed but for four years, whilst the judges may continue for life, if they shall so long behave them- selves well? In the first case, little alteration can happen in the value of money; but in the course of a man's life, a very great one may take place from the discovery of silver and gold mines and the great influx of those metals; in which case an increase of salary may be requisite. A security that their compensation shall not be lessened, nor they have to lookup to every session for salary, will certainly tend to make those officers more easy and independent.

"The judges may hold other offices of a lucrative nature." This part of the objection reminds me of the scheme that was fallen upon in Pennsylvania to prevent any person from taking up large tracts of land. A law was passed restricting the purchaser to a tract not exceeding three hundred acres; but all the difference it made was that the land was taken up by several patents, instead of one, and the wealthy could procure, if they chose it, three thousand acres. What, though the judges could hold no other office, might they not have brothers, children and other relations, whom they might wish to see placed in the offices forbidden to themselves? I see no apprehensions that may be entertained on this account.

That in all cases enumerated, except where the Supreme Court has original jurisdiction, "they shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make." From this is inferred, that the trial by jury is not secured; and an objection is set up to the system, because they have jurisdiction between citizens of different states. Regulations, under this head, are necessary, but the Convention would form no one that would have suited each of the United States. It has been a subject of amazement to me to hear gentlemen contend that the verdict of a jury shall be without revision in all cases. Juries are not infallible because they are twelve in number. When the law is so blended with the fact, as to be almost inseparable, may not the decision of a jury be erroneous? Yet notwithstanding this, trial by jury is the best mode that is known. Appellate jurisdiction, sir, is known in the common law, and causes are removed from inferior courts by writ of error into some court of appeal.21 It is said that the lord chancellor, in all cases, sends down to the lower courts when he wants to determine a fact, but that opinion is not well-founded, because he determines nineteen out of twenty without the intervention of any jury. The power to try causes between citizens of different states was thought by some gentlemen invidious; but I apprehend they must see the necessity of it, from what has been already said by my honorable colleague.

"That there is no bill or declaration of rights in this Constitution."

To this I answer, such a thing has not been deemed essential to liberty excepting in Great Britain, where there is a king and an House of Lords quite distinct with respect to power and interest from the rest of the people; or in Poland, the Pacta Conventa, which the king signs before he is crowned, and in six states of the American United States.

Again, because it is unnecessary, for the powers of Congress, being derived from the people in the mode pointed out by this Constitution, and being therein enumerated and positively granted, can be no other than what this positive grant conveys.

With respect to executive officers, they have no manner of authority, any of them, beyond what is, by positive grant and commission, delegated to them.

"That this is a consolidation of the several states and not a confederation."

To this I answer, the name is immaterial-the thing unites the several states and makes them like one in particular instances and for particular purposes, which is what is ardently desired by most of the sensible men in this country. I care not, whether it is called a consolidation, confederation, or national government, or by what other name, if it is a good government and calculated to promote the blessings of liberty, tranquility and happiness.

"It is an aristocracy and was intended to be so by the framers of it."

Here again, sir, the name is immaterial, if it is a good system of government for the general and common concerns of the United States. But after the definition which has already been given of an aristocratic government, it becomes unnecessary to repeat arguments to prove that this system does not establish an aristocracy.

There have been some other small objections to, or rather criticisms on this work, which I rest assured the gentlemen who made them will, on reflection, excuse me in omitting to notice them.

Many parts of this Constitution have been wrested and tortured, in order to make way for shadowy objections, which must have been observed by every auditor. Some other things were said with acrimony; they seemed to be personal; I heard the sound, but it was inarticulate. I can compare it to nothing better than the feeble noise occasioned by the working of small beer.

It holds in argument as well as nature, that destructio unius est generatio alterius-the refutation of an argument begets a proof. The objections to this Constitution having been answered, and all done away, it remains pure and unhurt, and this alone is a forcible argument of its goodness.

Mr. President, I am sure nothing can prevail with me to give my vote for ratifying this Constitution, but a conviction from comparing the arguments on both sides, that the not doing it is liable to more inconvenience and danger than the doing it.

I. If you do it, you strengthen the government and people of these United States, and will thereby have the wisdom and assistance of all the states.

II. You will settle, establish, and firmly perpetuate our independence, by destroying the vain hopes of all its enemies, both at home and abroad.

III. You will encourage your allies to join with you; nay to depend, that what hath been stipulated or shall hereafter be stipulated and agreed upon will be punctually performed, and other nations will be induced to enter into treaties with you.

IV. It will have a tendency to break our parties and divisions, and by that means, lay a firm and solid foundation for the future tranquility and happiness of the United States in general, and of this state in particular.

V. It will invigorate your commerce and encourage shipbuilding.

VI. It will have a tendency not only to prevent any other nation from making war upon you, but from offering you any wrong or even insult.

In short, the advantages that must result from it are obviously so numerous and important, and have been so fully and ably pointed out by others, that it appears to be unnecessary to enlarge on this head.

Upon the whole, sir, the law has been my study from my infancy, and my only profession. I have gone through the circle of office, in the legislative, executive, and judicial departments of government; and from all my study, observation, and experience, I must declare, that from a full examination and due consideration of this system, it appears to me the best the world has yet seen. I congratulate you on the fair prospect of its being adopted, and am happy in the expectation of seeing accomplished, what has been long my ardent wish-that you will hereafter have a SALUTARY PERMANENCY, in magistracy and STABILITY IN THE LAWS.