Timothy Pickering to John Gardner (December 12, 1787)

JOHN SMILIE: . . . in the afternoon Mr. Smilie, taking a general view of the subject, stated briefly the leading principles which influenced his vote.

BENJAMIN RUSH: The important question was now called for, when Doctor Rush requested the patience of the Convention for a few minutes. He then entered into a metaphysical argument, to prove that the morals of the people had been corrupted by the imperfections of the government, and while he ascribed all our vices and distresses to the existing system, he predicted a millennium of virtue and happiness as the necessary consequence of the proposed Constitution. To illustrate the depraved state of society, he remarked, among other things, the disregard which was notorious in matters of religion, so that between the congregation and the minister scarcely any communication or respect remained; nay, the Doctor evinced that they were not bound by the ties of common honesty, on the evidence of two facts, from which it appears that several clergymen had been lately cheated by their respective flocks of the wages due for their pastoral care and instruction. Dr. Rush then proceeded to consider the origin of the proposed system, and fairly deduced it from heaven, asserting that he as much believed the hand of God was employed in this work, as that God had divided the Red Sea to give a passage to the children of Israel or had fulminated the Ten Commandments from Mount Sinai! Dilating some time upon this new species of divine right, thus transmitted to the future governors of the Union, he made a pathetic appeal to the opposition, in which he deprecated the consequences of any further contention and pictured the honorable and endearing effects of an unanimous vote, after the full and fair investigation which the great question had undergone. "It is not, sir, a majority (continued the Doctor), however numerous and respectable, that can gratify my wishes—nothing short of an unanimous vote can indeed complete my satisfaction. And, permit me to add, were that event to take place, I could not preserve the strict bounds of decorum; but, flying to the other side of this room, I should cordially embrace every member, who has hitherto been in the opposition, as a brother and a patriot. Let us then, sir, this night bury the hatchet and smoke the calumet of peace!"

STEPHEN CHAMBERS: When Dr. Rush had concluded, Mr. Chambers remarked upon the Doctor's wish of conciliation and unanimity, that it was an event which he neither expected nor wished for.

ROBERT WHITEHILL now rose, and having animadverted upon Doctor Rush's metaphysical arguments, and regretted that so imperfect a work should have been ascribed to God, he presented several petitions from 750 inhabitants of Cumberland County, praying, for the reasons therein specified, that the proposed Constitution should not be adopted without amendments, and, particularly, without a bill of rights.

THOMAS McKEAN: The petitions being read from the chair, Mr. M'Kean said, he was sorry that at this stage of the business so improper an attempt should be made. He repeated that the duty of the Convention was circumscribed to the adoption or rejection of the proposed plan, and such had certainly been the sense of the members when it was agreed that only one question could be taken on the important subject before us. He hoped, therefore, that the petitions would not be attended to.

Mr. M'Kean pronounced an animated eulogium on the character, information and abilities of Mr. George Mason, but concluded that the exclusion of juries in civil causes was not among the objections which had governed his conduct.

ROBERT WHITEHILL: On this assertion Mr. Whitehill quoted the following passage from Mr. Mason's objections: "There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil causes, nor against the danger of standing armies in time of peace."

Mr. Whitehill then read, and offered as the ground of a motion for adjourning to some remote day, the consideration of the following articles, which he said might either be taken collectively as a bill of rights, or separately as amendments to the general form of government proposed.

1. The rights of conscience shall be held inviolable, and neither the legislative, executive, nor judicial powers of the United States shall have authority to alter, abrogate, or infringe any part of the constitutions of the several states, which provide for the preservation of liberty in matters of religion.1

2. That in controversies respecting property, and in suits between man and man, trial by jury shall remain as heretofore, as well in the federal courts, as in those of the several states.2

3. That in all capital and criminal prosecutions, a man has a right to demand the cause and nature of his accusation, as well in the federal courts, as in those of the several states;3 to be heard by himself or his counsel;4 to be confronted with the accusers and witnesses,5 to call for evidence in his favor, and a speedy trial,6 by an impartial jury of the vicinage,7 without whose unanimous consent, he cannot be found guilty, nor can he be compelled to give evidence against himself;8 that no man be deprived of his liberty, except by the law of the land9 or the judgment of his peers.

4. That excessive bail ought not to be required nor excessive fines imposed, nor cruel or unusual punishments inflicted.10

5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others.11

6. That the people have a right to the freedom of speech, of writing, and of publishing their sentiments,12 therefore, the freedom of the press shall not be restrained by any law of the United States.13

7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.14

8. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.15

9. That no law shall be passed to restrain the legislatures of the several states, from enacting laws for imposing taxes, except imposts and duties on goods exported and imported, and that no taxes, except imposts and duties upon goods imported and exported, and postage on letters shall be levied by the authority of Congress.

10. That elections shall remain free, that the House of Representatives be properly increased in number and that the several states shall have power to regulate the elections for Senators and Representatives, without being controlled either directly or indirectly by any interference on the part of Congress, and that elections of Representatives be annual.16

11. That the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state and for such length of time only as such state shall agree.17

12. That the legislative, executive, and judicial powers be kept separate, and to this end, that a constitutional council be appointed to advise and assist the President, who shall be responsible for the advice they give (hereby, the Senators would be relieved from almost constant attendance); and also that the judges be made completely independent.

13. That no treaties which shall be directly opposed to the existing laws of the United States in Congress assembled shall be valid until such laws shall be repealed or made conformable to such treaty, neither shall any treaties be valid which are contradictory to the Constitution of the United States, or the constitutions of the individual states.18

14. That the judiciary power of the United States shall be confined to cases affecting ambassadors, other public ministers and consuls,19 to cases of admiralty and maritime jurisdiction,20 to controversies to which the United States shall be a party,21 to controversies between two or more states—22between citizens claiming lands under grants of different states, and between citizens claiming lands under grants of different states,23 and between a state or the citizens thereof and foreign states, and in criminal cases, to such only as are expressly enumerated in the Constitution, and that the United States in Congress assembled shall not have power to enact laws, which shall alter the laws of descents and distributions of the effects of deceased persons, the title of lands or goods, or the regulation of contracts in the individual states.

15. That the sovereignty, freedom, and independency of the several states shall be retained, and every power, jurisdiction and right which is not by this Constitution expressly delegated to the United States in Congress assembled.24

Some confusion arose on these articles being presented to the chair, objections were made by the majority to their being officially read, and, at last, Mr. Wilson desired that the intended motion might be reduced to writing, in order to ascertain its nature and extent. Accordingly, Mr. Whitehill drew it up, and it was read from the chair in the following manner.

"That this Convention do adjorn to the _______ day of _________ next, then to meet in the city of Philadelphia, in order that the proposition for amending the proposed Constitution may be considered by the people of this state; that we may have an opportunity of knowing what amendments or alternations may be proposed by other states, and that these propositions, together with such other amendments as may be proposed by other states, may be offered to Congress, and taken into consideration by the United States, before the proposed Constitution shall be finally ratified."

JAMES WILSON: As soon as the motion was read, Mr. Wilson said, he rejoiced that it was by this means ascertained upon what principles the opposition proceeded, for, he added, the evident operation of such a motion would be to exclude the people from the government and to prevent the adoption of this or any other plan of confederation. For this reason he was happy to find the motion reduced to certainty, that it would appear upon the Journals, as an evidence of the motives which had prevailed with those who framed and supported it, and that its merited rejection would permanently announce the sentiments of the majority respecting so odious an attempt.

JOHN SMILIE followed Mr. Wilson, declaring that he too rejoiced that the motion was reduced to a certainty, from which it might appear - to their constituents, that the sole object of the opposition was to consult with, and obtain the opinions of the people upon a subject, which they had not yet been allowed to consider. "If," exclaimed Mr. Smilie, "those gentlemen who have affected to refer all authority to the people, and to act only for the common interest, if they are sincere, let them embrace this last opportunity to evince that sincerity. They all know the precipitancy with which the measure has hitherto been pressed upon the state, and they must be convinced that a short delay cannot be injurious to the proposed government if it is the wish of the people to adopt it; if it is not their wish, a short delay which enables us to collect their real sentiments may be the means of preventing future contention and animosity in a community, which is, or ought to be, equally dear to us all."

The question being taken on the motion, there appeared for it 23, against it 46. The great and conclusive question was then taken, that "this Convention do assent to and ratify the plan of federal government, agreed to and recommended by the late Federal Convention?" when the same division took place, and the yeas and nays being called by Mr. . Smilie and Mr. Chambers, were as follow.

This important decision being recorded, Thomas M'Kean moved that the Convention do tomorrow proceed in a body to the courthouse, there to proclaim the ratification, and that the Supreme Executive Council be requested to make the necessary arrangements for the procession on that occasion, which motion was agreed to, and the Convention adjourned till the next morning at half past nine o'clock.