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The Anti-Federalist Papers
The Constitutional Convention Debates
"John De Witt" Essay II Oct.27, 1787
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To the Free Citizens
of the Commonwealth of Massachusetts.
II
In my last address upon the proceedings of the Federal Convention I endeavored to convince you of the importance of
the subject, that it required a cool, dispassionate examination, and a thorough investigation, previous to its
adoption --- that it was not a mere revision and amendment of our first Confederation, but a compleat System for
the future government of the United States, and I may now add in preference to, and in exclusion of, all others
heretofore adopted. --- It is not TEMPORARY, but in its nature, PERPETUAL. --- It is not designed that you shall be
annually called, either to revise, correct, or renew it; but, that your posterity shall grow up under, and be
governed by it, as well as ourselves. --- It is not so capable of alterations as you would at the first reading
suppose; and I venture to assert, it never can be, unless by force of arms. The fifth article in the proceedings, it
is true, expressly provides for an alteration under certain conditions, whenever "it shall be ratified by the
Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the
other mode of ratification may be proposed by Congress." --- Notwithstanding which, such are the "heterogeneous
materials from which this System was formed," such is the difference of interest, different manners, and different
local prejudices, in the different parts of the United States, that to obtain that majority of three fourths to any
one single alteration, essentially affecting this or any other State, amounts to an absolute impossibility. The
conduct of the Delegates in dissolving the Convention, plainly speaks this language, and no other. ---Their
sentiments in their Letter to his Excellency the President of Congress are --- That this Constitution was the result
of a spirit of amity --- that the parties came together disposed to concede as much as possible each to the
other --- that mutual concessions and compromises did, in fact, take place, and all those which could, consistent
with the peculiarity of their political situation. Their dissolution enforces the same sentiment, by confining you to
the alternative of taking or refusing their doings in the gross. In this view, who is there to be found among us,
who can seriously assert, that this Constitution, after ratification and being practiced upon, will be so easy of
alteration? Where is the probability that a future Convention, in any future day, will be found possessed of a
greater spirit of amity and mutual concession than the present? Where is the probability that three fourths of the
States in that Convention, or three fourths of the Legislatures of the different States, whose interests differ
scarcely in nothing short of every thing, will be so very ready or willing materially to change any part of this
System, which shall be to the emolument of an individual State only? No, my fellow-citizens, as you are now obliged
to take it in the whole, so you must hereafter administer it in whole, without the prospect of change, unless by
again reverting to, a state of Nature, which will be ever opposed with success by those who approve of the Government
in being.
That the want of a Bill of Rights to accompany this proposed System, is a solid objection to it, provided there is
nothing exceptionable in the System itself, I do not assert. --- If, however, there is at any time, a propriety in
having one, it would not have been amiss here. A people, entering into society, surrender such a part of their
natural rights, as shall be necessary for the existence of that society. They are so precious in themselves, that
they would never be parted with, did not the preservation of the remainder require it. They are entrusted in the
hands of those, who are very willing to receive them, who are naturally fond of exercising of them, and whose
passions are always striving to make a bad use of them. --- They are conveyed by a written compact, expressing those
which are given up, and the mode in which those reserved shall be secured. Language is so easy of explanation, and so
difficult is it by words to convey exact ideas, that the party to be governed cannot be too explicit. The line cannot
be drawn with too much precision and accuracy. The necessity of this accuracy and this precision encreases in
proportion to the greatness of the sacrifice and the numbers who make it. --- That a Constitution for the United
States does not require a Bill of Rights, when it is considered, that a Constitution for an individual State would,
I cannot conceive. --- The difference between them is only in the numbers of the parties concerned they are both a
compact between the Governors and Governed the letter of which must be adhered to in discussing their powers. That
which is not expressly granted, is of course retained.
The Compact itself is a recital upon paper of that proportion of the subject's natural rights, intended to be parted
with, for the benefit of adverting to it in case of dispute. Miserable indeed would be the situation of those
individual States who have not prefixed to their Constitutions a Bill of Rights, if, as a very respectable, learned
Gentleman at the Southward observes, "the People, when they established the powers of legislation under their
separate Governments, 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 of the House of Assembly, if the Frame of Government is silent, the
jurisdiction is efficient and complete." [from James Wilson's speech of Oct. 6, 1787] In other words, those powers
which the people by their Constitutions expressly give them; they enjoy by positive grant, and those remaining ones,
which they never meant to give them, and which the Constitutions say nothing about, they enjoy by tacit
implication, so that by one means and by the other, they became possessed of the whole. --- This doctrine is but
poorly calculated for the meridian of America, where the nature of compact, the mode of construing them, and the
principles upon which society is founded, are so accurately known and universally diffused. That insatiable thirst
for unconditional controul over our fellow-creatures, and the facility of sounds to convey essentially different
ideas, produced the first Bill of Rights ever prefixed to a Frame of Government. The people, although fully sensible
that they reserved every tittle of power they did not expressly grant away, yet afraid that the words made use of,
to express those rights so granted might convey more than they originally intended, they chose at the same moment
to express in different language those rights which the agreement did not include, and which they never designed to
part with, endeavoring thereby to prevent any cause for future altercation and the intrusion into society of that
doctrine of tacit implication which has been the favorite theme of every tyrant from the origin of all governments
to the present day.
The proceedings of the Convention are now handed to you by your Legislature, and the second Wednesday in January is
appointed for your final answer. To enable you to give that with propriety; that your future reflections may produce
peace, however opposed the present issue of your present conduct may be to your present expectations, you must
determine, that, in order to support with dignity the Federal Union, it is proper and fit, that the present
Confederation shall be annihilated: --- That the future Congress of the United States shall be armed with the powers
of Legislation, Judgment and Execution. --- That annual elections in this Congress shall not be known, and the most
powerful body, the Senate, in which a due proportion of representation is not preserved, and in which the smallest
State has equal weight with the largest, be the longest in duration: --- That it is not necessary for the public
good, that persons habituated to the exercise of power should ever be reminded from whence they derive it, by a
return to the station of private citizens, but that they shall at all times at the expiration of the term for which
they were elected to an office, be capable of immediate re-election to that same office: --- That you will
hereafter risk the probability of having the Chief Executive Branch chosen from among you; and that it is wholly
indifferent, both to you and your children after you, whether this future Government shall be administered within
the territories of your own State, or at the distance of four thousand miles from them. --- You must also determine,
that they shall have the exclusive power of imposts and the duties on imports and exports, the power of laying
excises and other duties, and the additional power of laying internal taxes upon your lands, your goods, your
chattels, as well as your persons at their sovereign pleasure: --- That the produce of these several funds shall
be appropriated to the use of the United States, and collected by their own officers, armed with a military force,
if a civil aid should not prove sufficient: --- that the power of organizing, arming and disciplining the militia
shall be lodged in them, and this through fear that they shall not be sufficiently attentive to keeping so
respectable a body of men as the yeomanry of this Commonwealth, compleatly armed, organized and disciplined; they
shall have also the power of raising, supporting and establishing a standing army in time of peace in your several
towns, and I see not why in your several houses: --- That should an insurrection or an invasion, however small, take
place, in Georgia, the extremity of the Continent, it is highly expedient they should have the power of suspending
the writ of Habeas Corpus in Massachusetts, and as long as they shall judge the public safety requires it: ---
You must also say, that your present Supreme Judicial Court shall be an Inferior Court to a Continental Court, which
is to be inferior to the Supreme Court of the United States: --- that from an undue bias which they are supposed to
have for the citizens of their own States, they shall not be competent to determine title to your real estate,
disputes which may arise upon a protested Bill of Exchange, a simple note of hand, or book debt, wherein your
citizens shall be unfortunately involved with disputes of such or any other kind, with citizens either of other
States or foreign States: In all such cases they shall have a right to carry their causes to the Supreme Court of
the United States, whether for delay only or vexation; however distant from the place of your abode, or inconsistent
with your circumstances: --- That such appeals shall be extended to matters of fact as well as law, and a trial of
the cause by jury you shall not have a right to insist upon. --- In short, my fellow-citizens, previous to a capacity
of giving a compleat answer to these proceedings, you must determine that the Constitution of your Commonwealth,
which is instructive, beautiful and consistent in practice, which has been justly admired in Europe, as a mode of
perfection, and which the present Convention have affected to imitate, a Constitution which is especially calculated
for your territory, and is made conformable to your genius, your habits, the mode of holding your estates, and your
particular interests, shall be reduced in its powers to those of a City Corporation: --- The skeleton of it may
remain, but its vital principle shall be transferred to the new Government: Nay, you must go still further, and agree
to invest the new Congress with powers, which you have yet thought proper to withhold from your own present
Government. --- All these, and more, which are contained in the proceedings of the Federal Convention, may be highly
proper and necessary. --- In this overturn of all individual governments, in this new-fashioned set of ideas, and in
this total dereliction of those sentiments which animated us in 1775, the Political Salvation of the United States
may be very deeply interested, but BE CAUTIOUS.
John DeWitt.