That I 'voted an appeal should lay to the supreme judiciary of the United States, for the correction of all errors both in law and fact,' in rendering judgment is most true, and it is equally true that if it had been so ordained by the Constitution, the supreme judiciary would only have had an appellate jurisdiction, of the same nature with that possessed by our high court of appeals, and could not in any respect intermeddle with any fact decided by a jury; but as the clause now stands, an appeal being given in general terms from the inferior courts, both as to law and fact, it not only doth, but is avowedly intended, to give a power very different from what our court of appeals, or any court of appeals in the United States or in England enjoys, a power of the most dangerous and alarming nature, that of setting at nought the verdict of a jury, and having the same facts which they had determined, without any regard or respect to their determination, examined and ultimately decided by the judges themselves, and that by judges immediately appointed by the government.2
But the Landholder also says that 'I agreed to the clause that declares nine states to be sufficient to put the government in motion.' I cannot take to myself the merit even of this without too great a sacrifice of truth. It was proposed that if seven states agreed that should be sufficient; by a rule of Convention in filling up blanks, if different numbers were mentioned, the question was always to be taken on the highest. It was my opinion, that to agree upon a ratification of the constitution by any less number than the whole thirteen states, is so directly repugnant to our present articles of confederation, and the mode therein prescribed for their alteration, and such a violation of the compact which the states, in the most solemn manner, have entered into with each other, that those who could advocate a contrary proposition, ought never to be confided in, and entrusted in public life. I availed myself of this rule, and had the question taken on thirteen, which was rejected. Twelve, eleven, ten and nine were proposed in succession; the last was adopted by a majority of the members.3
I voted successively for each of these members, to prevent a less number being agreed on. Had nine not been adopted, I should on the same principle have voted for eight. But so far was I from giving my approbation that the assent of a less number of states than thirteen should be sufficient to put the government in motion, that I most explicitly expressed my sentiments to the contrary, and always intended, had I been present when the ultimate vote was taken on the constitution, to have given it my decided negative, accompanied with a solemn protest against it, assigning this reason among others for my dissent. Thus, my fellow citizens, that candour with which I have conducted myself through the whole of this business obliges me, however reluctantly, and however 'mortifying it may be to my vanity,' to disavow all 'those greater positive virtues' which the Landholder has so obligingly attributed to me in Convention, and which he was so desirous of conferring upon me as to consider the guilt of misrepresentation and falsehood but a trifling sacrifice for that purpose, and to increase my mortification, you will find I am equally compelled to yield up every pretence even to those of a negative nature, which a regard to justice has, as he says, obliged him not to omit. These consist, as he tells us, in giving my entire approbation to the system as to those parts which are said to endanger a trial by jury, and as to its want of a bill of rights, and in having too much candour there to signify that I thought it deficient in either of these respects. But how, I pray, can the Landholder be certain that I deserve this encomium? Is it not possible, as I so frequently exhausted the politeness of the Convention, that some of those marks of fatigue and disgust, with which he intimates I was mortified as oft as I attempted to speak, might at that time have taken place, and have been of such a nature as to attract his attention; or, perhaps, as the Convention was prepared to slumber whenever I rose, the Landholder, among others, might have sunk into sleep, and at that very moment might have been feasting his imagination with the completion of his ambitious views, and dreams of future greatness. But supposing I never did declare in Convention that I thought the system defective in those essential points, will it amount to a positive proof that I approved the system in those respects, or that I culpably neglected an indispensable duty? Is it not possible, whatever might have been my insolence and assurance when I first took my seat, and however fond I might be at that time of obtruding my sentiments, that the many rebuffs with which I met, the repeated mortifications I experienced, the marks of fatigue and disgust with which my eyes were sure to be assailed wherever I turned them — one gaping here, another yawning there, a third slumbering in this place, and a fourth snoring in that — might so effectually have put to flight all my original arrogance, that, as we are apt to run into extremes, having at length become convinced of my comparative nothingness, in so august an assembly and one in which the science of government was so perfectly understood, I might sink into such a state of modesty and diffidence as not to be able to muster up resolution enough to break the seal of silence and open my lips even after the rays of light had begun to penetrate my understanding, and in some measure to chase away those clouds of error and ignorance in which it was enveloped on my first arrival? Perhaps had I been treated with a more forbearing indulgence while committing those memorable blunders, for a want of a sufficient knowledge in the science of government, I might, after the rays of light had illuminated my mind, have rendered my country much more important services, and not only assisted in raising some of the pillars, but have furnished the edifice with a new roof of my own construction, rather better calculated for the convenience and security of those who might wish to take shelter beneath it, than that which it at present enjoys. Or even admitting I was not mortified, as I certainly ought to have been, from the Landholder's account of the matter, into a total loss of speech, was it in me, who considered the system, for a variety of reasons, absolutely inconsistent with your political welfare and happiness, a culpable neglect of duty in not endeavouring, and that against every chance of success, to remove one or two defects, when I had before ineffectually endeavoured to clear it of the others, which therefore, I knew must remain? But to be serious, as to what relates to the appellate jurisdiction in the extent given by the system proposed, I am positive there were objections made to it, and as far as my memory will serve me, I think I was in the number of those who actually objected; but I am sure that the objections met with my approbation. With respect to a bill of rights, had the government been formed upon principles truly federal, as I wished it, legislating over and acting upon the states only in their collective or political capacity, and not on individuals, there would have been no need of a bill of rights, as far as related to the rights of individuals, but only as to the rights of states. But the proposed constitution being intended and empowered to act not only on states, but also immediately on individuals, it renders a recognition and a stipulation in favour of the rights both of states and of men, not only proper, but in my opinion absolutely necessary. I endeavoured to obtain a restraint on the powers of the general government, as to standing armies, but it was rejected.
It was my wish that the general government should not have the power of suspending the privilege of the writ of habeas corpus, as it appears to me altogether unnecessary, and that the power given to it may and will be used as a dangerous engine of oppression, but I could not succeed.4
An honorable member from South Carolina most anxiously sought to have a clause inserted securing the liberty of the Press, and repeatedly brought this subject before the Convention, but could not obtain it.5
I am almost positive he made the same attempt to have a stipulation in favour of liberty of conscience, but in vain. The more the system advanced the more was I impressed with the necessity of not merely attempting to secure a few rights, but of digesting and forming a complete bill of rights, including those of states and of individuals, which should be assented to, and prefixed to the Constitution, to serve as a barrier between the general government and the respective states and their citizens; because the more the system advanced the more clearly it appeared to me that the framers of it did not consider that either states or men had any rights at all, or that they meant to secure the enjoyment of any to either the one or the other; accordingly, I devoted a part of my time to the actually preparing and draughting such a bill of rights, and had it in readiness before I left the Convention, to have laid it before a committee. I conversed with several members on the subject; they agreed with me on the propriety of the measure, but at the same time expressed their sentiments that it would be impossible to procure its adoption if attempted. A very few days before I left the Convention, I shewed to an honorable member sitting by me a proposition, which I then had in my hand, couched in the following words; 'Resolved that a committee be appointed to prepare and report a bill of rights, to be prefixed to the proposed Constitution,' and I then would instantly have moved for the appointment of a committee for that purpose, if he would have agreed to second the motion, to do which he hesitated, not as I understand from any objection to the measure, but from a conviction in his own mind that the motion would be in vain.