The New-York journal, and weekly register (New-York [N.Y.]), 1787-11-01 00:00:00

The New-York Journal, and Weekly Register, EXTRAORDINARY.
NUMB. 44, of VOL. XLI.]
THURSDAY, November 1, 1787.
[Total NUMB. 2139.]
CENTINEL, No. II.
FRIENDS, COUNTRYMEN, and FELLOW-CITIZENS,
AS long as the liberty of the press continues unviolated, and the people have the right of expressing and publishing their sentiments upon every public measure, it is next to impossible to enslave a free nation. The state of society must be very corrupt and base indeed, when the people in possession of such a monitor as the press, can be induced to exchange the heaven-born blessings of liberty for the galling chains of despotism.—Men of an aspiring and tyrannical disposition, sensible of this truth, have been inimical to the press, and have considered the cracking of it, as the first step towards the accomplishment of their hateful domination, and the entire suppression of all liberty of public discussion, as necessary to its support.—For even a standing army, that grand engine of oppression, if it were as numerous as the abilities of any nation could maintain, would not be equal to the purposes of despotism over an enlightened people.
The abolition of that grand palladium of freedom, the liberty of the press, in the proposed plan of government, and the conduct of its authors, and patrons, is a striking exemplification of these observations. The reason assigned for the omission of a bill of rights , securing the liberty of the press , and other invaluable personal rights , is an insult on the understanding of the people.
The injunction of secrecy imposed on the members of the late Convention during their deliberation, was obviously dictated by the genius of Aristocracy; it was deemed impolitic to unfold the principles of the intended government to the people, as this would have frustrated the object in view.
The projectors of the new plan, supposed that an ex parte discussion of the subject, was more likely to obtain unanimity in the Convention; which would give it such a sanction in the public opinion, as to banish all distrust, and lead the people into an implicit adoption of it without examination.
The greatest minds are forcibly impressed by the immediate circumstances with which they are connected; the particular sphere men move in, the prevailing sentiments of those they converse with, have an insensible and irresistible influence on the wits and best of mankind. So that when we consider the abilities, talents, ingenuity, and consummate address of a number of the members of the late Convention, whose principles are despotic, can we be surprised that men of the best intentions have been misled in the difficult science of government? It is derogating from the character of the illustrious and highly revered WASHINGTON, to suppose him fallible on a subject that must be in a great measure novel to him?—As a patriotic hero, he stands unequalled in the annals of time.
The new plan was accordingly ushered to the public with such a splendor of names, as inspired the most unlimited confidence; the people were disposed to receive upon trust, without any examination on their part, what would have proved either a blessing or a curse to them and their posterity.—What astonishing infatuation! to stake their happiness on the wisdom and integrity of any set of men! In matters of infinitely smaller concern, the dictates of prudence are not disregarded! The celebrated Montesquieu, in his Spirit of Laws, says, that "slavery is ever preceded by sleep." And again, in his account of the rise and fall of the Roman Empire, page 97, "That it may be advanced as a general rule, that in a free state, whenever a perfect calm is visible, the spirit of liberty no longer subsists." And Mr. Dickinson, in his Farmer's Letters, No. XI. lays it down as a maxim, that "A perpetual jealousy respecting liberty is absolutely requisite in all free states."
"Happy are the men, and happy the people, who grow wise by the misfortunes of others. Earnestly, my dear countrymen, do I beseech the author of all good-gifts, that you may grow wise in this manner, and I beg leave to recommend to you in general, as the best method of obtaining this wisdom, diligently to study the histories of other countries. You will there find all the arts, that can possibly be practised by cunning rulers or false patriots among yourselves, so fully delineated, that changing names, the account would serve for your own times."
A few citizens of Philadelphia (too few, for the honor of human nature) who had the wisdom to think consideration ought to precede approbation , and the fortitude to avow that they would take time to judge for themselves on so momentous an occasion, were stigmatized as enemies to their country; as monsters, whose existence ought not to be suffered, and the destruction of them and their houses recommended, as meritorious. The authors of the new plan, conscious that it would not stand the test of enlightened patriotism, tyrannically endeavored to preclude all investigation. If their views were laudable; if they were honest,—the contrary would have been their conduct; they would have invited the freest discussion. Whatever specious reasons may be assigned for secrecy during the framing of the plan, no good one can exist, for leading the people blindfolded into the implicit adoption of it. Such an attempt does not augur the public good.—It carries on the face of it an intention to juggle the people out of their liberties.
The virtuous and spirited exertions of a few patriots, have at length roused the people from their fatal infatuation to a due sense of the importance of the measure before them. The glare and fascination of names is rapidly abating, and the subject begins to be canvassed on its own merits; and so serious and general has been the impression of the objections urged against the new plan, on the minds of the people, that its advocates, finding mere declamation and scurrility will no longer avail, are reluctantly driven to defend it on the ground of argument. Mr. Wilson, one of the deputies of this state in the late Convention, has found it necessary to come forward. From so able a lawyer, and so profound a politician, what might not be expected, if this act of Convention be the heavenly dispensation which some represent it. Its divinity would certainly be illustrated by one of the principal instruments of the Revelation; for this gentleman has that transcendent merit!—But if, on the other hand, this able advocate has failed to vindicate it from the objections of its adversaries, must we not consider it as the production of frail and interested men.
Mr. Wilson has recourse to the most flimsy sophistry in his attempt to refute the charge that the new plan of general government will supersede and render powerless the state governments. His quibble upon the term corporation , as sometimes equivalent to communities which possess sovereignty, is unworthy of him. The same comparison in the case of the British parliament assuming to tax the colonies, is made in the Xth of the Farmer's Letters, and was not misunderstood in 1768 by any. He says, that the existence of the proposed federal plan depends on the existence of the state governments, as the senators are to be appointed by the several legislatures, who are also to nominate the electors who choose the president of the United States; and that hence all fears of the several states being melted down into one empire, are groundless and imaginary. But who is so dull as not to comprehend, that the semblance and forms of an ancient establishment, may remain, after the reality is gone. Augustus , by the aid of a great army, assumed despotic power, and notwithstanding this, we find even under Tiberius , Caligula , and Nero , princes who disgraced human nature by their excesses, the shadows of the ancient constitution held up to amuse the people. The senate sat as formerly; consuls, tribunes of the people, censors and other officers were annually chosen as before, and the forms of republican government continued. Yet all this was in appearance only .—Every senatus consultum was dictated by him or his ministers, and every Roman found himself constrained to submit in all things to the despot.
Mr. Wilson asks, "What controul can proceed from the federal government to shackle or destroy that sacred palladium of national freedom, the liberty of the press ?" What if cannot Congress, when possessed of the immense authority proposed to be devolved, restrain the printers, and put them under regulation.—Recollect that the omnipotence of the federal legislature over the state establishments is recognized by a special article, viz. "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; and the judges in every state shall be bound thereby, any thing in the constitutions or laws of any state to the contrary notwithstanding."—After such a declaration, what security does the constitutions of the several states afford for the liberty of the press , and other invaluable personal rights , not provided for by the new plan?—Does not this sweeping clause subject every thing to the controul of Congress?
In the plan of confederation of 1778, now existing, it was thought proper by article the 2d, to declare that "each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled." Positive grant was not then thought sufficiently descriptive and restraining upon Congress, and the omission of such a declaration now, when such great devolutions of power are proposed, manifests the design of reducing the several states to shadows. But Mr. Wilson tells you that every right and power not specially granted to Congress is considered as withheld. How does this appear? Is this principle established by the proper authority? Has the Convention made such a stipulation? By no means. Quite the reverse; the laws of Congress are to be "the supreme law of the land, any thing in the constitutions or laws of any state to the contrary notwithstanding;" and consequently, would be paramount to all state authorities. The lust of power is so universal, that a speculative unascertained rule of construction would be a poor security for the liberties of the people.
Such a body as the intended Congress, unless particularly inhibited and restrained, must grasp at omnipotence, and before long swallow up the Legislative, the Executive, and the Judicial powers of the several states.
In addition to the respectable authorities quoted in my first number, to shew that the right of taxation includes all the powers of government, I beg leave to adduce the Farmer's Letters, see particular letter 9th, in which Mr. Dickinson has clearly proved, that if the British parliament assumed the power of taxing the colonies, internally , as well as externally , and it should be submitted to, the several colony legislatures would soon become contemptible, and before long fall into disuse.—Nothing, says he, would be left for them to do, higher than to frame by-laws for impounding of cattle or the yoking of hogs.
By the proposed plan, there are divers cases of judicial authority to be given to the courts of the United States, besides the two mentioned by Mr. Wilson.—In maritime causes about property, jury trial has not been usual; but in suits in equity , with all due deference to Mr. Wilson's professional abilities (which he calls to his aid) jury trial, as to facts, is in full exercise. Will this jurisprudent say, that if the question in equity should be, did John Doe make a will, that the chancellor of England would decide upon it? He well knows that in this case, there being no mode of jury trial before the chancellor, the question would be referred to the court of king's bench for discussion according to the common law, and when the judge in equity should receive the verdict, the fact so established, could never be re-examined or controverted. Maritime causes and those appertaining to a court of equity, are, however, but two of the many and extensive subjects of federal cognizance mentioned in the plan. This jurisdiction will embrace all suits arising under the laws of impost, excise, and other revenue of the United States. In England if goods be seized, if a ship be prosecuted for noncompliance with, or breach of the laws of the customs, or those for regulating trade, in the court of exchequer, the claimant is secured of the transcendent privilege of Englishmen, trial by a jury of his peers . Why not in the United States of America? This jurisdiction also goes to all cases under the laws of the United States, that is to say, under all statutes and ordinances of Congress. How far this may extend, it is easy to foresee; for upon the decay of the state powers of legislation, in consequence of the loss of the pure strings , it will be found necessary for the federal legislature to make laws upon every subject of legislation. Hence the state courts of justice, like the barony and hundred courts of England, will be eclipsed and gradually fall into disuse.
The jurisdiction of the federal court goes, likewise, to the laws to be created by treaties made by the President and Senate (a species of legislation) with other nations; "to all cases affecting foreign ministers and consuls; to controversies wherein the United States shall be a party; to controversies between citizens of different states," as when an inhabitant of New-York has a demand on an inhabitant of New-Jersey . This last is a very invidious jurisdiction, implying an improper distrust of the impartiality and justice of the tribunals of the states. It will include all legal debates between foreigners in Britain, or elsewhere, and the people of this country.—A reason hath been assigned for it, viz. "That large tracts of land, in neighbouring states, are claimed under royal or other grants, disputed by the states where the lands lie, so that justice cannot be expected from the state tribunals."—Suppose it were proper indeed to provide for such case, why include all cases, and for all time to come? Demands as to lands for 21 years would have satisfied this. A London merchant shall come to America, and sue for his supposed debt, and the citizen of this country shall be deprived of jury trial, and subjected to an appeal (though nothing but the fact is disputed) to a court 500 or a 1000 miles from home; when if this American has a claim upon an inhabitant of England, his adversary is secured of the privilege of jury trial.—This jurisdiction goes also to controversies between any state and its citizens; which though probably not intended, may hereafter be set up as a ground to divest the states, severally, of the trial of criminals; inasmuch as every charge of felony or misdemeanor, is a controversy between the state and a citizen of the same: that is to say, the state is plaintiff and the party accused is defendant in the prosecution. In all debts about jurisprudence, as was observed before, the paramount courts of Congress will decide, and the judges of the state, being sub graviore lege , under the paramount law, must acquiesce.
Mr. Wilson says, that it would have been impracticable to have made a general rule for jury trial in the civil cases assigned to the federal judiciary, because of the want of uniformity in the mode of jury trial, as practised by the several states. This objection proves too much, and therefore amounts to nothing. If it precludes the mode of common law in civil cases, it certainly does in criminal. Yet in all criminal cases trial by jury shall "be preferred." Astonishing, that provision could not be made for a jury in civil controversies, of 12 men, whose verdict should be unanimous, to be taken from the vicinage ; a precaution which is omitted as to trial of crimes, which may be any where in the state within which they have been committed. So that an inhabitant of Kentucky may be tried for treason at Richmond .
The abolition of jury trial in civil cases, is the more considerable, as at length the courts of Congress will supersede the state courts, when such mode of trial will fall into disuse among the people of the United States.
The northern nations of the European continent, have all lost this invaluable privilege; Sweden , the last of them, by the artifices of the aristocratic senate, which depressed the king and reduced the house of commons to insignificance. But the nation, a few years ago, preferring the absolute authority of a monarch to the vexatious domination of the well-born few, an end was suddenly put to their power.
"The policy of this right of juries (says judge Blackstone) to decide upon fact , is founded on this: That if the power of judging were entirely trusted with the magistrates, or any select body of men, named by the executive authority, their decisions, in spite of their own natural integrity, would have a bias towards those of their own rank and dignity; for it is not to be expected, that the few should be attentive to the rights of the many . This therefore preserves in the hands of the people, that share which they ought to have in the administration of justice, and prevents the encroachments of the more powerful and wealthy citizens."
The attempt of governor Colden , of New-York, before the revolution, to re-examine the facts and re-consider the damages , in the case of Forsey against Cunningham , produced about the year 1764, a flame of patriotic and successful opposition that will not be easily forgotten.
To manage the various and extensive judicial authority, proposed to be vested in Congress, there will be one or more inferior courts immediately requisite in each state; and laws and regulations must be forthwith provided to direct the judges—here is a wide door for inconvenience to enter. Contracts made under the acts of the states respectively, will come before courts arising under new laws and new modes of proceeding, not thought of when they were entered into.—An inhabitant of Pennsylvania residing at Pittsburgh, finds the goods of his debtor, who resides in Virginia, within the reach of his attachment; but no writ can be had to authorise the marshal, sheriff, or other officer of Congress, to seize the property, about to be removed, nearer than 200 miles: suppose that at Carlisle , for instance, such a writ may be had, mean while the object escapes. Or if an inferior court, whose judges have ample salaries, be established in every county, would not the expence be enormous? Every reader can extend in his imagination, the instances of difficulty which would proceed from this needless interference with the judicial rights of the separate states, and which, as much as any other circumstance in the new plan, implies that the dissolution of their forms of government is designed.
Mr. Wilson skips very lightly over the danger apprehended from the standing army allowed by the new plan. This grand machine of power and oppression, may be made a fatal instrument to overturn the public liberties, especially as the funds to support the troops may be granted for two years, whereas in Britain, the grants ever since the revolution in 1688, have been from year to year. A standing army with regular provision of pay and contingencies, would afford a strong temptation to some ambitious man to step up into the throne, and to seize absolute power. The keeping on foot a hired military force in time of peace, ought not to be gone into, unless two thirds of the members of the federal legislature agree to the necessity of the measure, and adjust the numbers employed. Surely Mr. Wilson is not serious when he adduces the instance of the troops now stationed on the Ohio as a proof of the propriety of a standing army.—They are a mere occasional armament for the purpose of restraining divers hostile tribes of savages. It is contended that under the present confederation, Congress possesses the power of raising armies at pleasure; but the opportunity which the states severally have of withholding the supplies necessary to keep these armies on foot, is a sufficient check on the present Congress.
Mr. Wilson asserts, that never was charge made with less reason, than that which predicts the institution of a baneful aristocracy in the federal senate.—In my first number, I stated that this body would be a very unequal representation of the several states, that the members being appointed for the long term of six years, and there being no exclusion by rotation, they might be continued for life, which would follow of course from their extensive means of influence, and that possessing a considerable share in the executive as well as legislative , it would become a permanent aristocracy , and swallow up the other orders in the government.
The check of the house of representatives upon the senate will likewise be rendered nugatory for want of due weight in the democratic branch, and from their constitution they may become so independent of the people as to be indifferent of its interests: nay, as Congress would have the controul over the mode and place of their election, by ordering the representatives of a whole state to be elected at one place, and that too the most inconvenient, the ruling power may govern the senate, and thus the house of representatives may be composed of the creatures of the senate. Still the semblance of checks, may remain, but without operation . This
ed, prove merely nominal, and will be inoperative. As it probable, that the president of the United States, limited as he is in power, and dependent on the will of the senate, in appointments to office, will either have the firmness or inclination to exercise his prerogative of a conditional controul upon the proceedings of that body, however injurious they may be to the public welfare: it will be his interest to coincide with the views of the senate, and thus become the head of the aristocratical junto. The king of England is a constituent part in the legislature, but although an hereditary monarch, in possession of the whole executive power, including the unreserved appointment to offices, and an immense revenue, enjoys but in name the prerogative of a negative upon the parliament. Even the king of England,
That these fears are not imaginary, a knowledge of the history of other nations, where the powers of government have been injudiciously placed, will fully demonstrate. Mr. Wilson lays, "the senate branches into two characters; the one legislative and the other executive. In its legislative character it can effect no purpose, without the co-operation of the house of representatives, and in its executive character it can accomplish no object without the concurrence of the president." Thus fettered, I do not know any act which the senate can of itself perform, and such dependence necessarily precludes every idea of influence and superiority." This I consider is very specious, but experience demonstrates, that checks in government, unless accompanied with adequate power, and independently placed,

This mixture of the legislative and executive moreover highly tends to corruption. The chief improvement in government, in modern times, has been the complete separation of the great distinctions of power; placing the legislative in different hands from those which hold the executive; and again severing the judicial part from the ordinary administrative.
Mr. Wilson confesses himself not satisfied with the organization of the federal senate, and apologizes for it, by alleging a sort of compromise. It is well known, that some members of convention, apprized of the mischief of such a compound of authority, proposed to assign the supreme executive powers to the president and a small council, made personally responsible for every appointment to office, or other act, by having their opinions recorded; and that without the concurrence of the majority of the quorum of this council, the president should not be capable of taking any step.
The delegation of the power of taxation to Congress, as far as duties on imported commodities, has not been objected to. But to extend this to excises, and every species of internal taxation, would necessarily require so many ordinances of Congress, affecting the body of the people, as would perpetually interfere with the state laws and personal concerns of the people.
As the taxes necessary for these purposes, will drain your pockets of every penny, what is to become of that virtuous and meritorious class of citizens the public creditors.
From the foregoing illustration of the powers to be devolved to Congress, it is evident, that the general government would necessarily annihilate the particular governments, and that the security of the personal rights of the people by the state constitutions is superseded and destroyed.
The new plan, it is true, does propose to secure the people of the benefit of personal liberty by the habeas corpus ; and trial by jury for all crimes, except in case of impeachment; but there is no declaration, that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own conscience and understanding;
But Mr. Wilson says, the new plan does not arrogate perfection, for it provides a mode of alteration and correction, if found necessary. This is one among the numerous deceptions attempted on this occasion.
The opposition to the new plan (says Mr. Wilson) proceeds from interested men, viz. the officers of the state governments. He had before denied that the proposed transfer of powers to Congress would annihilate the state governments.
The opposition is not so partial and interested as Mr. Wilson asserts. It consists of a respectable yeomanry throughout the union, of characters far removed above the reach of his unsupported assertions.
Are Mr. Wilson, and many of his coadjutors in the late Convention, the disinterested patriots they would have us believe?
My fellow citizens, such false detestable patriots in every nation, have led their blind confiding country, shouting their applauses, into the jaws of despotism and ruin.
CENTINEL.
* Upon the last motion being made, those who had strenuously and successfully opposed Congress giving any countenance of approbation or recommendation to this system of oppression, said, "We have no objection to transmit the new plan of government to the several states, that they may have an opportunity of judging for themselves on so momentous a subject."
For the NEW-YORK JOURNAL.
MR. GREENLEAF,
I WAS lately invited to pass the evening with a club of grave and sensible men, who are in the practice of assembling weekly to converse on public affairs; and having been previously made acquainted, by my introducing friend, with the characters, situations, and circumstances of the persons who composed this club, I found that they were not officers of the present government, and that there was little probability of any among them becoming suitors (or seekers, as now called) for place, or employment under the new Constitution, if it should succeed.
contented and independent characters, that they had no view to place of finance, of judge, or attorney-general, or tax collectors, or any other office of emolument, which so often drives men to prostitute their abilities for the support of bad measures, from expectation of great profit.
I accepted, with pleasure, an opportunity of hearing the sentiments of such respectable characters, on so interesting a subject as public affairs, especially at this crisis, when the minds of men are on one side violently agitated and active; on the other, and the greater part, a sleepy indifference and inattention seems to prevail.
After some judicious reflections on this subject, which tended to shew the necessity of the most plain and unequivocal language in the all important business of constituting government, which necessarily conveying great powers, is always liable (from the natural tendency of power to corrupt the human heart and deprave the head) to great abuse; by perverse and subtle arguments calculated to extend dominion over all things and all men.
From hence it clearly results, that, if preachers and printers are troublesome to the new government; and that in the opinion of its rulers, it shall be for the general welfare to restrain or suppress both the one and the other, it may be done consistently with the new Constitution.
A grave old gentleman of the club, who had sat with his head reclined on his hand, listening in pensive mood to the argument of the judge, said, "I verily believe, that neither the logic or the law of that opinion will be hereafter doubted by the professors of power, who, through the history of human nature, have been for enlarging the sphere of their authority."
The club listened, with great attention, to the worthy old gentleman, and joined him in hearty wishes, that the people may be upon their guard, and not suffer themselves to be deprived of liberty, under the notion of strong federal government--because the design of all government should be the happiness of the people, and it is not necessary for the purpose of securing happiness, that power should be given rulers to destroy happiness.