FRtR > Documents > The Anti-Federalist Papers > 31
The Anti-Federalist Papers
The Constitutional Convention Debates
Speech of James Wilson (October 6, 1787)
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Mr. Chairman and Fellow Citizens:
Having received the honor of an appointment to represent you in the late convention, it is perhaps my duty to
comply with the request of many gentlemen whose characters and judgements I sincerely respect, and who have urged
that this would be a proper occasion to lay before you any information which will serve to explain and elucidate
the principles and arrangements of the constitution that has been submitted to the consideration of the
United States....
It will be proper ... to mark the leading discrimination between the State constitutions and the constitution of the
United States. When the people established the powers of legislation under their separate governments, they
invested their representatives with every right and authority which they did not in explicit terms reserve; and
therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government
is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was
necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the
positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything
which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is
not given is reserved.
This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a
defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal
body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention
or the act that has brought the body into existence. For instance, the liberty of the press, which has been a copious
source of declamation and opposition --- what control can proceed from the Federal government to shackle or destroy
that sacred palladium of national freedom? If, indeed, a power similar to that which has been granted for the
regulation of commerce had been granted to regulate literary publications, it would have been as necessary to
stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its
operation. With respect likewise to the particular district of ten miles, which is to be made the seat of federal
government, it will undoubtedly be proper to observe this salutary precaution, as there the legislative power will
be exclusively lodged in the President, Senate, and House of Representatives of the United States. But this could
not be an object with the Convention, for it must naturally depend upon a future compact to which the citizens
immediately interested will, and ought to be, parties; and there is no reason to suspect that so popular a privilege
will in that case be neglected. In truth, then, the proposed system possesses no influence whatever upon the press,
and it would have been merely nugatory to have introduced a formal declaration upon the subject --- nay, that very
declaration might have been construed to imply that some degree of power was given, since we undertook to define its
extent.
Another objection that has been fabricated against the new constitution, is expressed in this disingenious
form --- "The trial by jury is abolished in civil cases." I must be excused, my fellow citizens, if upon this point
I take advantage of my professional experience to detect the futility of the assertion. Let it be remembered then,
that the business of the Federal Convention was not local, but general --- not limited to the views and establishments
of a single State, but co-extensive with the continent, and comprehending the views and establishments of thirteen
independent sovereignties. When, therefore, this subject was in discussion, we were involved in difficulties which
pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a trial by jury
differed in the different States. It was therefore impracticable, on that ground, to have made a general rule.
The want of uniformity would have rendered any reference to the practice of the States idle and useless; and it could
not with any propriety be said that, "The trial by jury shall be as heretofore," since there has never existed any
federal system of jurisprudence, to which the declaration could relate. Besides, it is not in all cases that the
trial by jury is adopted in civil questions; for cases depending in courts of admiralty, such as relate to maritime
captures, and such as are agitated in courts of equity, do not require the intervention of that tribunal. How, then
was the line of discrimination to be drawn? The Convention found the task too difficult for them, and they left the
business as it stands, in the fullest confidence that no danger could possibly ensue, since the proceedings of the
Supreme Court are to be regulated by the Congress, which is a faithful representation of the people; and the
oppression of government is effectually barred, by declaring that in all criminal cases the trial by jury shall be
preserved.
This constitution, it has been further urged, is of a pernicious tendency, because it tolerates a standing army in
the time of peace. This has always been a topic of popular declamation; and yet I do not know a nation in the world
which has not found it necessary and useful to maintain the appearance of strength in a season of the most profound
tranquility. Nor is it a novelty with us; for under the present articles of confederation, Congress certainly
possesses this reprobated power, and the exercise of that power is proved at this moment by her cantonments along
the banks of the Ohio. But what would be our national situation were it otherwise? Every principle of policy must
be subverted, and the government must declare war, before they are prepared to carry it on. Whatever may be the
provocation, however important the object in view, and however necessary dispatch and secrecy may be, still the
declaration must precede the preparation, and the enemy will be informed of your intention, not only before you
are equipped for an attack, but even before you are fortified for a defence. The consequence is too obvious to
require any further delineation, and no man who regards the dignity and safety of his country can deny the necessity
of a military force, under the control and with the restrictions which the new constitution provides.
Perhaps there never was a charge made with less reasons than that which predicts the institution of a baneful
aristocracy in the federal Senate. This body branches into two characters, the one legislative and the other
executive. In its legislative character it can effect no purpose, without me 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. But I will confess that in the organization of
this body a compromise between contending interests is descernible; and when we reflect how various are the
laws commerce, habits, population and extent of the confederated States, this evidence of mutual concession and
accommodation ought rather to command a generous applause, than to excite jealousy and reproach. For my part,
my admiration can only be equalled by my astonishment in beholding so perfect a system formed from such
heterogeneous materials.
The next accusation I shall consider is that which represents the federal constitution, as not only calculated, but
designedly framed, to reduce the State governments to mere corporations and eventually to annihilate them. Those who
have employed the term corporation upon this occasion are not perhaps aware of its extent. In common parlance,
indeed, it is generally applied to petty associations for the ease and convenience of a few individuals; but in its
enlarged sense, it will comprehend the government of Pennsylvania, the existing union of the States, and even this
projected system is nothing more than a formal act of incorporation. But upon what presence can it be alleged that
it was designed to annihilate the State governments? For I will undertake to prove that upon their existence depends
the existence of the Federal plan. For this purpose, permit me to call your attention to the manner in which the
President, Senate and House of Representatives are proposed to be appointed. The President is to be chosen by
electors, nominated in such manner as the legislature of each State may direct; so that if there is no legislature
there can be no electors, and consequently the office of President cannot be supplied.
The Senate is to be composed of two Senators from each State, chosen by the Legislature; and, therefore, if there
is no Legislature, there can be no Senate. The House of Representatives is to be composed of members chosen every
second year by the people of the several States, and the electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State Legislature; unless, therefore, there is a State
Legislature, that qualification cannot be ascertained, and the popular branch of the federal constitution must be
extinct. From this view, then, it is evidently absurd to suppose that the annihilation of the separate governments
will result from their union; or, that having that intention, the authors of the new system would have bound their
connection with such indissoluble ties. Let me here advert to an arrangement highly advantageous, for you will
perceive, without prejudice to the powers of the Legislature in the election of Senators, the people at large will
acquire an additional privilege in returning members to the House of Representatives; whereas, by the present
confederation, it is the Legislature alone that appoints the delegates to Congress.
The power of direct taxation has likewise been treated as an improper delegation to the federal government; but
when we consider it as the duty of that body to provide for the national safety, to support the dignity of the
union, and to discharge the debts contracted upon the collected faith of the States for their common benefit, it
must be acknowledged that those upon whom such important obligations are imposed, ought in justice and in policy to
possess every means requisite for a faithful performance of their trust. But why should we be alarmed with visionary
evils? I will venture to predict that the great revenue of the United States must, and always will, be raised by
impost, for, being at once less obnoxious and more productive, the interest of the government will be best promoted
by the accommodation of the people. Still, however, the objects of direct taxation should be within reach in all
cases of emergency; and there is no more reason to apprehend oppression in the mode of collecting a revenue from
this resource, than in the form of an impost, which by universal assent, is left to the authority of the federal
government. In either case, the force of civil institutions will be adequate to the purpose; and the dread of
military violence, which has been assiduously disseminated, must eventually prove the mere effusion of a wild
imagination or a factious spirit. But the salutary consequences that must flow from thus enabling the government to
receive and support the credit of the union, will afford another answer to the objections upon this ground. The
State of Pennsylvania particularly, which has encumbered itself with the assumption of a great proportion of the
public debt, will derive considerable relief and advantage, for, as it was the imbecility of the present
confederation which gave rise to the funding law, that law must naturally expire, when a competent and energetic
federal system shall be substituted --- the State will then be discharged from an extraordinary burthen, and the
national creditor will find it to be his interest to return to his original security.
After all, my fellow-citizens, it is neither extraordinary or unexpected that the constitution offered to your
consideration should meet with opposition. It is the nature of man to pursue his own interest in preference to the
public good, and I do not mean to make any personal reflection when I add that it is the interest of a very
numerous, powerful and respectable body to counteract and destroy the excellent work produced by the late
convention. All the officers of government and all the appointments for the administration of justice and the
collection of the public revenue which are transferred from the individual to the aggregate sovereignty of the
States, will necessarily turn the stream of influence and emolument into a new channel. Every person, therefore,
who enjoys or expects to enjoy a place of profit under the present establishment, will object to the proposed
innovation; not, in truth, because it is injurious to the liberties of his country, but because it affects his
schemes of wealth and consequence. I will confess, indeed, that I am not a blind admirer of this plan of government,
and that there are some parts of it which, if my wish had prevailed, would certainly have been altered. But when I
reflect how widely men differ in their opinions, and that every man (and the observation applies likewise to every
State) has an equal pretension to assert his own, I am satisfied that anything nearer to perfection could not have
been accomplished. If there are errors, it should be remembered that the seeds of reformation are sown in the work
itself and the concurrence of two-thirds of the Congress may at any time introduce alterations and amendments.
Regarding it, then, in every point of view, with a candid and disinterested mind, I am bold to assert that it is the
best form of government which has ever been offered to the world.