maxims of the British constitution; upon which, | exertion of prerogative be justified? On the acts as upon a rock, our wise ancestors erected that stable fabric, against which the gates of hell have not hitherto prevailed. Those maxims I shall apply fairly, and, I flatter myself, satisfactorily to evince every particular contained in the resolution. The government of Britain, sir, was never an arbitrary government; our ancestors were never inconsiderate enough to trust those rights, which God and nature had given them, unreservedly into the hands of their princes. However difficult it may be, in other states, to prove an original contract subsisting in any other manner, and on any other conditions, than are naturally and necessarily implied in the very idea of the first institution of a state; it is the easiest thing imaginable, since the revolution of 1688, to prove it in our constitution, and to ascertain some of the material articles of which it consists. It has been often appealed to: it has been often broken, at least on one part: it has been often renewed: it has been often confirmed: it still subsists in its full force: "it binds the king as much as the meanest subject." The measures of his power, and the limits beyond which he cannot extend it, are circumscribed and regulated by the same authority, and with the same precision, as the measures of the subject's obedience; and the Limits, beyond which he is under no obligation to practise it, are fixed and ascertained. Liberty is, by the constitution, of equal stability, of equal antiquity, and of equal authority with prerogative. The duties of the king and those of the subject are plainly reciprocal: they can be violated on neither side, unless they be performed on the other. The law is the common standard, by which the excesses of prerogative, as well as the excesses of liberty, are to be regulated and reformed. Of this great compact between the king and his people, one essential article to be performed on his part is, that, in those cases where provision is expressly made and limitations set by the laws, his government shall be conducted according to those provisions, and restrained according to those limitations; that, in those cases which are not expressly provided for by the laws, it shall be conducted by the best rules of discretion, agreeably to the general spirit of the laws, and subserviently to their ultimate end-the interest and happiness of his subjects; that, in no case it shall be conducted contrary to the express, or to the implied principles of the constitution. These general maxims, which we may justly consider as fundamentals of our government, will, by a plain and obvious application of them to the parts of the resolution remaining to be proved, demonstrate them to be strictly agreeable to the laws and constitution. We can be at no loss in resolving, that the king cannot, by his prerogative, alter the charter or constitution of the colony of Massachusetts Bay. Upon what principle could such an of Parliament? They are already proved to be void. On the discretionary power which the king has of acting where the laws are silent? That power must be subservient to the interest and happiness of those concerning whom it operates. But I go further. Instead of being supported by law, or the principles of prerogative, such an alteration is totally and absolutely repugnant to both. It is contrary to express law. The charter and constitution we speak of, are confirmed by the only legislative power capable of coLfirming them; and no other power, but that which can ratify, can destroy. If it is contrary to express law, the consequence is necessary, that it is contrary to the principles of prerogative; for prerogative can operate only when the law is silent. In no view can this alteration be justified, or so much as excused. It cannot be justified or excused by the acts of Parliament; because the authority of Parliament does not extend to it: it cannot be justified or excused by the operation of prerogative; because this is none of the cases in which prerogative can operate: it cannot be justified or excused by the legislative authority of the colony; because that authority never has been, and, I presume, never will be given for any such purpose. If I have proceeded hitherto, as I am persuaded I have, upon safe and sure ground, I can, with great confidence, advance a step further and say, that all attempts to alter the charter or constitution of that colony, unless by the authority of its own legislature, are violations of its rights, and illegal. If those attempts are illegal, must not all force, employed to carry them into execution, be force employed against law, and without authority? The conclusion is unavoidable. Have not British subjects, then, a right to resist such force-force acting with authorityforce employed contrary to law-force employed to destroy the very existence of law and of liberty? They have, sir; and this right is secured to them both by the letter and the spirit of the British constitution, by which the measures and the conditions of their obedience are appointed. The British liberties, sir, and the means and the right of defending them, are not the grants of princes; and of what our princes never granted, they surely can never deprive us. I beg leave, here, to mention and to obviate some plausible but ill-founded objections that have been, and will be, held forth by our adversaries against the principles of the resolution now before us. It will be observed that those employed for bringing about the proposed alteration in the charter and constitution of the colony of Massachusetts Bay, act by virtue of a commission for that purpose from his majesty ; that all resistance of forces commissioned by his majesty is resistance of his majesty's authority and government, contrary to the duty of allegiance, and treasonable. These objections will be displayed in their most specious colors; every artifice of chicanery and sophistry | ranted by the royal prerogative, because, as has will be put in practice to establish them; law already been fully shown, it is diametrically authorities, perhaps, will be quoted and tor- opposite to the principles and the ends of pretured to prove them. Those principles of our rogative. Upon what foundation, then, can it constitution, which were designed to preserve lean and be supported? Upon none. Like an and to secure the liberty of the people, and, for enchanted castle, it may terrify those whose the sake of that, the tranquillity of government, eyes are affected by the magic influence of the will be perverted on this, as they have been on sorcerers, despotism, and slavery; but so soon many other occasions, from their true intention, as the charm is dissolved, and the genuine rays and will be made use of for the contrary pur- of liberty and of the constitution dart in upon pose of endangering the latter and destroying us, the formidable appearance vanishes, and we the former. The names of the most exalted discover that it was the baseless fabric of a vision, virtues on one hand, and of the most atrocious that never had any real existence. crimes on the other, will be employed in direct contradiction to the nature of those virtues and of those crimes; and in this manner those who cannot look beyond names will be deceived, and those whose aim it is to deceive by names will have an opportunity of accomplishing it. But, sir, this disguise will not impose upon us. We will look to things as well as to names; and, by doing so, we shall be fully satisfied that all those objections rest upon mere verbal sophistry, and have not even the remotest alliance with the principles of reason or of law. I have dwelt the longer upon this part of the objections urged against us by our adversaries, because this part is the foundation of all the others. We have ow removed it; and they must fall of course. For if the force, acting for the purposes we have mentioned, does not act, and cannot act, by virtue of any commission from his majesty, the consequence is undeniable, that it acts without his majesty's authority; that the resistance of it is no resistance of his majesty's authority, nor incompatible with the duties of allegiance. And now, sir, let me appeal to the impartial tribunal of reason and truth; let me appeal to every unprejudiced and judicious observer of the laws of Britain, and of the constitution of the British government; let me appeal, I say, whether the principles on which I argue, or the principles on which alone my arguments can be opposed, are those which ought to be adhered to and acted upon; which of them are most consonant to our laws and liberties; which of them have the strongest, and are likely to have the most effectual tendency to establish and secure the royal power and dignity. In the first place, then, I say, that the persons who allege that those employed to alter the charter and constitution of Massachusetts Bay, act by virtue of a commission from his majesty for that purpose, speak improperly, and contrary to the truth of the case. I say, they act by virtue of no such commission; I say, it is impossible they can act by virtue of such a commission. What is called a commission either contains particular directions for the purpose mentioned, or it contains no such particular directions. In either case can those who act for that purpose act by virtue of a commission? In one case, what is called a commission is void; it has no legal existence; it can communicate no authority. In the other case, it extends not to the purpose mentioned. The latter point is too plain to be insisted on; I prove the former. "Id rex potest," says the law, "quod de jure potest." The king's power is a power accord-in ing to law. His commands, if the authority of Lord Chief Justice Hale may be depended upon, are under the directive power of the law; and consequently invalid, if unlawful. "Commissions," says my Lord Coke, "are legal, and are like the king's writs; and none are lawful but such as are allowed by the common law, or warranted by some act of Parliament." Are we deficient in loyalty to his majesty? Let our conduct convict, for it will fully convict, the insinuation that we are, of falsehood. Our loyalty has always appeared in the true form of loyalty; in obeying our sovereign according to law: let those who would require it any other form, know that we call the persons who execute his commands, when contrary to law, disloyal and traitors. Are we enemies to the power of the Crown? No, sir, we are its best friends: this friendship prompts us to wish that the power of the Crown may be firmly established on the most solid basis; but we know that the constitution alone will perpetuate the former, and securely uphold the Let us examine any commission expressly di- latter. Are our principles irreverent to majesty? recting those to whom it is given, to use mili- They are quite the reverse: we ascribe to it tary force for carrying into execution the alter- perfection almost divine. We say that the ations proposed to be made in the charter and king can do no wrong: we say that to do constitution of Massachusetts Bay, by the fore-wrong is the property, not of power, but of going maxims and authorities; and what we weakness. We feel oppression, and will oppose have said concerning it will appear obvious and it; but we know, for our constitution tells us, conclusive. It is not warranted by any act of that oppression can never spring from the Parliament, because, as has been mentioned on throne. We must, therefore, search elsewhere this, and has been proved on other occasions, for its source: our infallible guide will direct any such act is void. It is not warranted, and us to it. Our constitution tells us that all opI believe it will not be pretended that it is war- pression springs from the ministers of the ranted, by the common law. It is not war-throne. The attributes of perfection ascribed to the king, are, neither by the constitution nor in fact, communicable to his ministers. They may do wrong; they have often done wrong; they have been often punished for doing wrong. Here we may discern the true cause of all the impudent clamor and unsupported accusations of the ministers and of their minions, that have been raised and made against the conduct of the Americans. Those ministers and minions are sensible that the opposition is directed, not against his majesty, but against them; because they have abused his majesty's confidence, brought discredit upon his government, and derogated from his justice. They see the public vengeance collected in dark clouds around them their consciences tell them that it should be hurled, like a thunderbolt, at their guilty heads. Appalled with guilt and fear, they skulk behind the throne. Is it disrespectful to drag them into public view, and make a distinction between them and his majesty, under whose venerable name they daringly attempt to shelter their crimes? Nothing can more effectually contribute to establish his majesty on the throne, and to secure to him the affections of his people, than this distinction. By it we are taught to consider all the blessings of government as flowing from the throne; and to consider every instance of oppression as proceeding, which in truth is oftenest the case, from the ministers. If, now, it is true that all force employed for the purposes so often mentioned, is force unwarranted by any act of Parliament; unsup ported by any principle of the common law; unauthorized by any commission from the Crown; that, instead of being employed for the support of the constitution and his majesty's government, it must be employed for the support of oppression and ministerial tyranny; if all this is true (and I flatter myself it appears to be true), can any one hesitate to say that to resist such force is lawful; and that both the letter and the spirit of the British constitution justify such resistance? Resistance, both by the letter and the spirit of the British constitution, may be carried further, when necessity requires it, than I have carried it. Many examples in the English history might be adduced, and many authorities of the greatest weight might be brought to show that when the king, forgetting his character and his dignity, has stepped forth and openly avowed and taken a part in such iniquitous conduct as has been described; in such cases, indeed, the distinction above mentioned, wisely made by the constitution for the security of the Crown, could not be applied; because the Crown had unconstitutionally rendered the application of it impossible. What has been the consequence? The distinction between him and his ministers has been lost; but they have not been raised to his situation: he has sunk to theirs. THE FEDERAL CONSTITUTION. This speech, on the expediency of adopting | the Federal Constitution, was delivered by Mr. Wilson, in the Convention of Pennsylvania, on the twenty-sixth of November, 1787.* The system proposed, by the late convention, for the government of the United States, is now before you. Of that convention I had the honor to be a member. As I am the only member of that body, who has the honor to be also a member of this, it may be expected that I should prepare the way for the deliberations of this assembly, by unfolding the difficulties which the late convention were obliged to encounter; by pointing out the end which they proposed to accomplish; and by tracing the general principles which they have adopted for the accomplishment of that end. To form a good system of government for a single city or state, however limited as to territory, or inconsiderable as to numbers, has been thought to require the strongest efforts of human genius. With what conscious diffidence, then, must the members of the convention have See note at page 13. revolved in their minds the immense undertaking which was before them. Their views could not be confined to a small or a single community, but were expanded to a great number of States; several of which contain an extent of territory, and resources of population, equal to those of some of the most respectable kingdoms on the other side of the Atlantic. Nor were even these the only objects to be comprehended within their deliberations. Numerous States yet unformed, myriads of the human race, who will inhabit regions hitherto uncultivated, were to be affected by the result of their proceedings. It was necessary, therefore, to form their calculations on a scale commensurate to a large portion of the globe. For my own part, I have been often lost in astonishment at the vastness of the prospect before us. To open the navigation of a single river was lately thought, in Europe, an enterprise adequate to imperial glory. But could the commercial scenes of the Scheldt be compared with those that, under a good government, will be exhibited on the Hudson, the Delaware, the Potomac, and the numerous other rivers, that water and are intended to enrich the dominions of the United States? The difficulty of the business was equal to its | posed a contrary one would be more agreeable magnitude. No small share of wisdom and to those who sent me to the convention. I address is requisite to combine and reconcile could not, even in idea, expose myself to such the jarring interests, that prevail, or seem to a retort as, upon the last answer, might have prevail in a single community. The United been justly made to me. Pray, sir, what reaStates contain already thirteen governments sons have you for supposing that a right vote mutually independent. Those governments would displease your constituents? Is this the present to the Atlantic a front of fifteen hun- proper return for the high confidence they have dred miles in extent. Their soil, their climates, placed in you? If they have given cause for their productions, their dimensions, their num- such a surmise, it was by choosing a repreLers, are different. In many instances, a differ- sentative, who could entertain such an opinion ence and even an opposition subsists among of them. I was under no apprehension, that their interests; and a difference and even an | the good people of this State would behold with opposition is imagined to subsist in many more. displeasure the brightness of the rays of deleAn apparent interest produces the same attach-gated power, when it only proved the superior ment as a real one; and is often pursued with splendor of the luminary, of which those rays no less perseverance and vigor. When all these were only the reflection." circumstances are seen and attentively considered, will any member of this honorable body be surprised, that such a diversity of things produced a proportioned diversity of sentiment? Will he be surprised that such a diversity of sentiment rendered a spirit of mutual forbearance and conciliation indispensably necessary to the success of the great work? And will he be surprised that mutual concessions and sacrifices were the consequences of mutual forbearance and conciliation? When the springs of opposition were so numerous and strong, and poured forth their waters in courses so varying, need we be surprised that the stream formed by their conjunction was impelled in a direction somewhat different from that, which each of them would have taken separately? A very important difficulty arose from comparing the extent of the country to be governed, with the kind of government which it would be proper to establish in it. It has been an opinion, countenanced by high authority, "that the natural property of small states is to be governed as a republic; of middling ones, to be subject to a monarch; and of large empires, to be swayed by a despotic prince; and that the consequence is, that, in order to preserve the principles of the established government the State must be supported in the extent it has acquired; and that the spirit of the State will alter in proportion as it extends or contracts its limits."* This opinion seems to be supported, rather than contradicted, by the history of the governments in the old world. I have reason to think that a difficulty arose Here then the difficulty appears in full view. On in the minds of some members of the conven- one hand, the United States contain an immense tion from another consideration-their ideas extent of territory, and, according to the foreof the temper and disposition of the people, for going opinion, a despotic government is best whom the constitution is proposed. The citi- adapted to that extent. On the other hand, it zens of the United States, however different in was well known, that, however the citizens of some other respects, are well known to agree the United States might, with pleasure, submit in one strongly marked feature of their charac- to the legitimate restraints of a republican ter a warm and keen sense of freedom and constitution, they would reject, with indignaindependence. This sense has been heightened tion, the fetters of despotism. What then was by the glorious result of their late struggle to be done? The idea of a confederate republic against all the efforts of one of the most power-presented itself. This kind of constitution has ful nations of Europe. It was apprehended, I believe, by some, that a people so high-spirited would ill brook the restraints of an efficient government. I confess that this consideration did not influence my conduct. I knew my constituents to be high-spirited; but I knew them also to possess sound sense. I knew that, in the event, they would be best pleased with that system of government, which would best promote their freedom and happiness. I have often revolved this subject in my mind. I have supposed one of my constituents to ask me, why I gave such a vote on a particular question? I have always thought it would be a satisfactory answer to say-because I judged, upon the best consideration I could give, that such a vote was right. I have thought that it would be but a very poor compliment to my constituents to say that, in my opinion, such a rote would have been proper, but that I sup been thought to have "all the internal advantages of a republican, together with the external force of a monarchical government." Its description is, "a convention, by which several States agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of farther association." The expanding quality of such a government is peculiarly fitted for the United States, the greatest part of whose terri tory is yet uncultivated. But while this form of government enabled us to surmount the difficulty last mentioned, it conducted us to another, of which I am now to take notice. It left us almost without prece *Mont. Sp. L. b. 8, c. 20. + Id. b. 9, c. 1. 1 Paley, 199-202. dent or guide; and, consequently, without the benefit of that instruction, which, in many cases, may be derived from the constitution, and history, and experience of other nations. Several associations have frequently been called | by the name of confederate States, which have not, in propriety of language, deserved it. The Swiss Cantons are connected only by alliances. The United Netherlands are indeed an assemblage of societies; but this assemblage constitutes no new one; and, therefore, it does not correspond with the full definition of a confederate republic. The Germanic body is composed of such disproportioned and discordant materials, and its structure is so intricate and complex, that little useful knowledge can be drawn from it. Ancient history discloses, and barely discloses to our view, some confederate republics-the Achæan league, the Lycian confederacy, and the Amphictyonic council. But the facts recorded concerning their constitutions are so few and general, and their histories are so unmarked and defective, that no satisfactory information can be collected from them concerning many particular circumstances, from an accurate discernment and comparison of which alone, legitimate and practical inferences can be made from one constitution to another. Besides, the situation and dimensions of those confederacies, and the state of society, manners, and habits in them, were so different from those of the United States, that the most correct description could have supplied but a very small fund of applicable remark. Thus, in forming this system, we were deprived of many advantages, which the history and experience of other ages and other countries would, in other cases, have afforded us. Permit me to add, in this place, that the science even of government itself, seems yet to be almost in its state of infancy. Governments, in general, have been the result of force, of fraud, and of accident. After a period of six thousand years has elapsed since the creation, the United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government, under which they would wish that they and their posterity should live. The ancients, so enlightened on other subjects, were very uninformed with regard to this. They seem scarcely to have had any idea of any other kinds of government, than the three simple forms designated by the epithets, monarchical, aristocratical, and democratical. I know that much and pleasing ingenuity has been exerted, in modern times, in drawing entertaining parallels between some of the ancient constitutions, and some of the mixed governments that have since existed in Europe. But I much suspect that, on strict examination, the instances of resemblance will be found to be few and weak; to be suggested by the improvements, which, in subsequent ages, have been made in government, and not to be drawn immediately from the ancient constitutions themselves, as they were intended and understood by those who framed them. To illustrate this, a similar observation may be made on another subject. Admiring critics have fancied, that they have discovered in their favorite Homer the seeds of all the improvements in philosophy, and in the sciences, made since his time. What induces me to be of this opinion, is, that Tacitus, the profound politician Tacitus, who lived towards the latter end of those ages which are now denominated ancient, who undoubtedly had studied the constitutions of all the states and kingdoms known before and in his time, and who certainly was qualified, in an uncoinmon degree, for understanding the full force and operation of each of them, considers, after all he had known and read, a mixed government, composed of the three simple forms, as a thing rather to be wished than expected; and he thinks, that if such a government could even be instituted, its daration could not be long. One thing is very certain, that the doctrine of representation in government was altogether unknown to the ancients. Now the knowledge and practice of this doctrine is, in my opinion, essential to every system, that can possess the qualities of freedom, wisdom and energy. It is worthy of remark, and the remark may, perhaps, excite some surprise, that representation of the people is not, even at this day, the sole principle of any government in Europe Great Britain boasts, and she may well boast, of the improvement she has made in politics, by the admission of representation: for the improvement is important as far as it goes; but it by no means goes far enough. Is the executive power of Great Britain founded on representation? This is not pretended. Before the Revolution, many of the kings claimed to reign by divine right, and others by hereditary_right; and even at the Revolution, nothing farther was effected or attempted, than the recognition of certain parts of an original contract,* supposed at some remote period to have been made between the king and the people. A contract seems to exclude, rather than to imply, delegated power. The judges of Great Britain are appointed by the Crown. The judicial author. ity, therefore, does not depend upon representation, even in its most remote degree. Does representation prevail in the legislative department of the British government? Even here it does not predominate; though it may serve as a check. The legislature consists of three branches, the king, the lords, and the commons. Of these, only the latter are supposed by the constitution to represent the authority of the people. This short analysis clearly shows, to what a narrow corner of the British constitution the principle of representation is confined. I believe it does not extend farther, if 1 Bl. Com. 233. |