Three Neglected Pieces of the Documentary History of the Constitution and Bill of Rights

Transcription

1 Three Neglected Pieces of the Documentary History of the Constitution and Bill of Rights

2 Carolina Academic Press Legal History Series H. Jefferson Powell, Series Editor The Birth of American Law An Italian Philosopher and the American Revolution John D. Bessler The Quotable Brandeis Peter Scott Campbell, editor Louis D. Brandeis s MIT Lectures on Law ( ) Robert F. Cochran, Jr., editor Federal Justice in the Mid-Atlantic South United States Courts from Maryland to the Carolinas Peter Graham Fish Law in War, War as Law Brigadier General Joseph Holt and the Judge Advocate General s Department in the Civil War and Early Reconstruction, Joshua E. Kastenberg Lost in Translations Roman Law Scholarship and Translation in Early Twentieth-Century America Timothy G. Kearley Gentlemen of the Grand Jury The Surviving Grand Jury Charges from Colonial, State, and Lower Federal Courts Before 1801 Stanton D. Krauss, editor Newspaper Reports of Decisions in Colonial, State, and Lower Federal Courts Before 1801 Stanton D. Krauss, editor Three Neglected Pieces of the Documentary History of The Constitution and Bill of Rights Remarks on the Amendments to the Constitution by a Foreign Spectator, Essays of the Centinel, Revived, and Extracts from the Virginia Senate Journal Stanton D. Krauss American Constitutional Law Selected Essays Henry Monaghan A View of the Constitution of the United States of America Second Edition William Rawle with Foreword, Introduction, and Notes by H. Jefferson Powell Our Chief Magistrate and His Powers William Howard Taft with Foreword, Introduction, and Notes by H. Jefferson Powell The Fetha Nagast The Law of the Kings Abba Paulos Tzadua, translator, and Peter L. Strauss

3 three neglected pieces of the documentary history of the constitution and bill of rights Remarks on the Amendments to the Constitution by a Foreign Spectator, Essays of the Centinel, Revived, and Extracts from the Virginia Senate Journal Stanton D. Krauss Professor of Law, Quinnipiac University School of Law.

4 Copyright 2019 Stanton D. Krauss All Rights Reserved Library of Congress Cataloging-in-Publication Data Names: Krauss, Stanton D., editor. Title: Three neglected pieces of the documentary history of the Constitution and Bill of Rights : Remarks on the amendments to the constitution by a foreign spectator, Essays of the centinel, revived, and Extracts from the Virginia Senate journal / by Stanton D. Krauss. Description: Durham, North Carolina : Carolina Academic Press, LLC, Identifiers: LCCN ISBN (alk. paper) Subjects: LCSH: United States. Constitution. 1st-10th Amendments Sources. Constitutional history United States 18th century Sources. Classification: LCC KF DDC /5 dc23 LC record available at ISBN e-isbn Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina Telephone (919) Fax (919) Printed in the United States of America

5 To my wife, Cristie Tober Krauss, without whose encouragement and support neither this book nor my other books and articles would have been possible

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7 Contents Introduction Editorial Method Acknowledgements ix xiii xv chapter 1 Remarks on the Amendments to the Federal Constitution, proposed by the Convention of Massachusetts, New-Hampshire, New-York, Virginia, South and North Carolina, with the minorities of Pennsylvania and Maryland, by a Foreign Spectator 3 Number I. 3 Number II. 5 Number III. 10 Number IV. 14 Number V. 18 Number VI. 21 Number VII. 24 Number VIII. 28 Number IX. 31 Number X. 34 Number XI. 38 Number XII. 41 Number XIII. 44 Number XIV. 49 Number XV. 53 Number XVI. 57 Number XVII. 60 Number XVIII. 64 Number XIX. 68 Number XX. 73 Number XXI. 76 Number XXII. 80 Number XXIII. 83 Number XXIV. 86 vii

8 viii contents Number XXV. 92 Number XXVI. 95 Number XXVII. 98 Number XXVIII. 102 chapter 2 The Centinel, Revived 111 Number XXV. 111 Number XXVI. 115 Number XXVII. 122 Number XXVIII. 128 Number XXIX. 128 Number XXX. 133 chapter 3 Extracts from the Virginia Senate Journal 139 Tuesday, December 8, Saturday, December 12, Monday, December 14, Table I: Constitutional Amendments Proposed by State Conventions or Minorities Thereof 149 Table II: Articles of Amendment Approved by the House of Representatives 157 Table III: Articles of Amendment Approved by the First Federal Congress (Including the Bill of Rights and the 27th Amendment) 159 Table IV: Constitutional Provisions 161 Index 163

9 Introduction Only a few modern writers appear to be aware of the sources reproduced in this volume. 1 The fact that they haven t appeared in print in at least two centuries seems effectively to have hidden them from a broader audience of scholars, lawyers, and citizens interested in the original understanding of the Constitution and Bill of Rights. 2 This book aims to correct that situation. Remarks on the Amendments to the Constitution... by a Foreign Spectator, was written by Swedish-born Nicholas Collin, rector of Philadelphia s Old Swedes Church and a member of the American Philosophical Society. 3 This unique essay was composed between 1. See, e.g., William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning , at (2009) (quoting Remarks... of a Foreign Spectator, Nos. 4 & 12); The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government & an Armed Populace , at (David E. Young ed.. 2d ed. 1995) (excerpting Centinel, Revived, No. XXIX), cited in D.C. v. Heller, 554 U.S. 570, 604 (2008); Kurt Lash, The Lost Original Meaning of the Ninth Amendment, 83 Texas L. Rev. 331, (2004) (discussing Virginia Senate Journal s comments on the Ninth Amendment). 2. One reflection, as well as a cause, of this obscurity, is the fact that neither The Founders Constitution (Philip Kurland & Ralph Lerner eds., 2000) nor The Complete Bill of Rights (Neil H. Cogan ed., 2d ed. 2015) mentions any of these documents. 3. Collin was revealed to be the author of this work when the first number was republished in the January, 1789, issue of The American Museum: or Repository of Ancient and Modern Fugitive Pieces, &c. Prose and Poetical. See id. at 72. He had previously used the same nom de plume for a twenty-nine part essay advocating ix

10 x introduction the ratification of the Constitution and the convening of the First Federal Congress, for the purpose of evaluating all of the amendments that had been proposed by ratifying conventions or minorities thereof. It provides the only contemporaneous exposition of some of them. In the process, it expresses opinions on questions ranging from the survival of a federal requisition power to the redundancy of our Sixth Amendment. Samuel Bryan was in many respects the opposite of Nicholas Collin. The son of Pennsylvania Supreme Court Judge George Bryan, Samuel was a leader of the Quaker State s Anti-Federalists and apparent author of their The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents. 4 It is also thought that, under the name Centinel, he composed a widely-read series of essays opposing ratification. 5 After the House of Representatives began discussing the constitutional amendments reported by a select committee, Centinel resumed publication. The first installment of Centinel, Revived, seemed to promise a careful analysis of the articles before the House. However, more conservative politicians (ultimately successful) push to revise the state s radical constitution of 1776 changed Bryan s plans, and opposition to the alteration of Pennsylvania s constitution became the focus of the majority of the Centinel s second life. 6 Nonetheless, Number 29 includes a valuable critique of several of the articles endorsed by the full House, and the other numbers reprinted here challenge Representatives failure to back the more substantial amendments Centinel believed necessary to cure the Constitution s more fundamental defects. a strengthened federal government. See Letter from Nicholas Collin to Matthias Hultgren (Mar. 29, 1788), in 16 Documentary History of the Ratification of the Constitution (John P. Kaminski et al. eds., 1986) Documentary History of the Supreme Court of the United States, , at 504 (Maeva Marcus ed., 1992). 5. Id. 6. This was the topic of Numbers 28 and 31 through 37.

11 introduction xi In September, 1789, Congress approved twelve articles of amendment to the Constitution, and they were sent to the states for consideration. 7 In December, 1791, Virginia s ratification made articles three through twelve the first ten amendments to the Constitution, the ones to which we refer as the Bill of Rights. 8 The second article was ratified and became the Twenty-Seventh amendment in Article one, on congressional apportionment, remains unratified. 9 Outside of Virginia, there is virtually no evidence of what transpired in any of these state legislatures beyond recorded votes. In Virginia, a split within the Federalist ranks caused by Edmund Randolph s misgivings about what became the Ninth and Tenth Amendments threatened to prevent ratification by the House of Delegates, but those were overcome and the House ratified all twelve articles. 10 The Senate, in turn, approved eight of the amendments, but postponed a decision on what we know as the First, Sixth, Ninth, and Tenth until the next legislative session (which would follow, and include members chosen in, the next election). Neither chamber backed down, and no final action was taken until all twelve amendments were approved two years later. When the Senate voted to take no action on the four amendments it deemed questionable, it also decided to allow members of 7. Leonard W. Levy, Origins of the Bill of Rights 40 (1999). 8. Id. at For the text of this article, see Creating the Bill of Rights 3 (Helen E. Veit, Kenneth R. Bowling & Charlene Bands Bickford eds., 1991). 10. On the House s consideration of these amendments, see Letter from Hardin Burnley to James Madison (Nov. 5, 1789), in 5 Documentary History of the Constitution of the United States of America , at 214 (Dep t. of State 1905); Letter from Edmund Randolph to George Washington (Nov. 26, 1789), in id at 216; Letter from Hardin Burnley to James Madison (Nov. 28, 1789), in id. at 219; Letter from James Madison to George Washington (Dec. 5, 1789), in id. at 221; Letter from Hardin Burnley to James Madison (Dec. 5, 1789), in 12 The Papers of James Madison 460 (Charles F. Hobson & Robert A. Rutland eds., 1979); Letter from Edmund Randolph to George Washington (Dec. 6, 1789), in Documentary History of the Constitution of the United States of America , supra, at 222; Letter from Edward Carrington to James Madison (Dec. 20, 1789), in id., at 227.

12 xii introduction the majority to enter statements in the Journal setting forth their reasons for favoring a delay and their views on the articles in question. The majority took advantage of that opportunity. Members of the minority, in turn, inserted statements in response. The result is a unique insight into what a group of ratifiers thought significant parts of our Bill of Rights meant. The 1790 printing of the Senate Journal containing these matters is now lost. It was reprinted in 1827, but that edition is itself a rare book. The Foreign Spectator s Remarks on the Amendments to the Constitution and the essays of Centinel, Revived, first appeared in Philadelphia newspapers and were widely reprinted in contemporary newspapers and magazines. They have not, however, been reissued since. The republication of these three sources will dispel the cloud of obscurity that has surrounded them for so long and allow them to resume their rightful place in the documentary history of the Constitution and Bill of Rights.

13 Editorial Method Most of this book consists of transcriptions of material written in the eighteenth century. I have left the original spelling, typeface, and punctuation intact throughout. However, I have made some changes in the transcribed texts. I have substituted lower-case letters for the footnote symbols used in the source material. All ellipses and numbered footnotes are mine. xiii

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15 Acknowledgements I am grateful for the support and financial assistance of Neal Cogan, David King, Brad Saxton, and Jennifer Gerarda Brown, Deans of the Quinnipiac University School of Law during the years that I discovered this material, incorporated it into my classes and scholarship, and transcribed it for inclusion in this book. Thanks as well to the Carolina Academic Press, which has once again turned my manuscript into a beautiful volume. Finally, I am endlessly indebted to Cristie, Davey, Jessie, Zack, Benjy, Tiger, and Leo for being their wonderful selves and making me a very happy (and incredibly lucky) man. xv

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