We the People - Held in Their Seats

The first state to fight over the Constitution was Pennsylvania — and the fight began with a mob breaking into a boarding house on Sixth Street, dragging two assemblymen through the streets, and holding them down in their chairs to make a quorum. This is the story of how the Federalists won the second largest state in the union in eleven weeks, and what it cost them: James Wilson in the State House yard, giving the first public defense of the Constitution by any man who helped write it and inventing the answer to the missing bill of rights — everything which is not given is reserved. William Findley and John Smilie arguing that the document created not a federation but a single consolidated government wearing a federation’s clothes. Benjamin Rush standing up to say the objection was right and he was glad. And a defeated minority of twenty-three publishing the document that became, in state after state, the standard case against the Constitution.

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Welcome to season 17 of American Political History. We the People held in their seats. On the morning of Saturday, September 29th, 1787, a crowd of Philadelphians broke into a boarding house on Sixth Street, seized two members of the Pennsylvania Assembly, dragged them through the streets to the State House, shoved them into the Assembly room and held them in their chairs. With those two men sitting where they did not want to sit in a room they had deliberately stayed away from, the Pennsylvania Assembly had a quorum, and with a quorum it could vote. That was how the first state ratifying a constitutional convention was called. Nobody was punished for it. It was reported in the newspapers within days, argued about in print for months, and cited in every state where somebody wanted to know how much the free consent of the people was really worth. Pennsylvania was going to be first, and both sides knew what that was worth. A first ratification is not just one state, it is proof that the thing can pass. Every legislature still deciding whether to call a convention, every printer deciding which essays to read, every undecided man in a tavern in Connecticut or Maryland would be told that Pennsylvania had already done it. And the fact of a decision is a powerful argument to people who have not yet made one. The Federalists understood that. So did the men trying to stop them. It was the second largest state in the Union, the richest after Virginia, and it contained Philadelphia. Which was the largest city in America and the place the Constitution had just been written. Whichever way Pennsylvania went, it would be the first real verdict the country got, and it would land on every other state's convention before those conventions had even been elected. The Federalists intended to have that verdict fast. They had reason too. They controlled the assembly, they had newspapers of Philadelphia almost entirely in their control. Their opponents in Philadelphia were the men of the western counties, farmers mostly in the country beyond the Susquehanna, a long way from a printing press and a long way from each other. Every week that passed was a week those men could use to consolidate their opposition. There was something else underneath it, older than the Constitution and angrier. Pennsylvania had been fighting its own civil argument for a decade. The state had adopted the most radical democratic constitution in America in 1776. A single chamber legislature, no governor worth the title, officials turned out of office constantly. Power pushed as far down toward the ordinary voters as the men who wrote it could push it. The Western and Frontier counties loved it. The merchants and lawyers of Philadelphia thought it was mob government with a roof on it. Those two parties had been at each other's throats ever since, and by 1787 nearly every man in Pennsylvania politics had a side and a decade of grievances to go with it. The Constitution landed directly on that fault line. The men who had spent ten years trying to curb Pennsylvania's democratic constitution were almost to a man federalists. The men who had defended it were almost to a man against the Constitution. So the fight over the national government was also the last round of a state fight that had been running since the Declaration of Independence, and both sides came into it already believing the worst about each other with reason. So on September twenty-eighth, George Clymer rose in the Assembly and moved that Pennsylvania call a convention to consider the Constitution. There was a problem with the timing, and it was not subtle. The Assembly's session ended the next day, and the Constitution had not yet officially arrived. Congress, in New York City, had only voted to transmit it that same Friday, and no copy had reached Harrisburg or the Pennsylvania State House through any official channel. Clymer was asking the Assembly to call a convention to consider a document. It had not formally received on the last two days of a session before the men who opposed it could organize a single meeting. The opposition understood exactly what was happening. They had 19 members, the assembly had sixty-nine, and a quorum was forty-six. Nineteen was not enough. They moved to postpone the whole business until the next Assembly, which would sit in a few weeks with newly elected members and a copy of the Constitution actually in their hands. They argued the move was hasty and close to illegal. They lost. Without a quorum, nothing could be done. The Assembly could not set an election date, could not fix the rules for choosing delegates, could not do anything at all. The session would expire the next day, and the whole question would pass to the next assembly. It was a legitimate parliamentary tactic. It was, in fact, the same tactic the Federalists themselves had used in that same chamber years past, in a body where a determined minority has no votes, denying a quorum is what a minority has instead of votes. The Federalist sent the sergeant at arms to find them. He first went to the boarding house of Major Alexander Boyd on Sixth Street, where a number of the opposition lodged and where they had been meeting. At Robert Whitehall's lodging, the maid said he was in, and then said he was not. On the street the sergeant came upon William Fiddley, one of the leaders of the Western men and started after him. And Findley, seeing him coming, turned the corner and was gone. The sergeant came back to the State House with nobody. The assembly adjourned for the night with no quorum and one day left, and the nineteen went back to Major Boyd's. As long as none of them walked into the room, the session died on Saturday afternoon with nothing that could be settled. The Constitution would go to the next assembly, which meant weeks of delay at minimum. The weeks were the only thing the opposition wanted. They had every reason to think they had won. There were nineteen of them. They were agreed, and no power in Pennsylvania could make a man attend a legislature he had chosen to boycott. Overnight, a writer arrived from New York City. The Confederation Congress had passed its transmittal resolution on the twenty eighth, and a Philadelphian federalist in New York City had put a copy on a fast horse. It reached Philadelphia in time for the Saturday morning session, which meant that the objection the opposition had been making that the Assembly was acting on a document it had not received was as of that morning answered. The Assembly convened at half past nine. It still did not have a quorum. The Speaker sent the Sergeant of Arms out again with an assistant clerk, and this time with the resolution of Congress in hand to show the absent members that the document had officially arrived and to summon them to attend. They went to Major Boyd's house and they found James McClumont, who sat for Franklin County, and Jacob Miley, who sat for Donovan. They showed them the resolution and told them that the House requested their audience. The two men said no. They were within their rights to say no. There was no legal mechanism by which the Pennsylvania Assembly could compel a member's body into a chair. What happened next did not involve any legal mechanisms. A crowd gathered outside, Philadelphians, and Philadelphia was overwhelmingly for the Constitution. When word came out that Montclant and Miley had refused, the crowd went in after them. They broke into their lodgings, seized the two assembly men, hauled them out into the street, and marched them several blocks to the State House with their clothes tearing as they went. They pushed them into the assembly room and put them in their seats. And then they stood there next to them and made sure they stayed. The account that comes down from the Federalist side is careful about the wording. The people decided that the members should attend. That is one way to describe this. What actually happened is that a crowd in the largest city in America decided that two elected legislatures from the western counties would be made to sit in a chamber against their will so that a vote could be taken, and then physically held them there while it was happening. Nobody was arrested. Nobody was charged. The men who benefited from it were sitting in the room. Montclamont tried. He rose and told the house he was there by force, that he was not a willing participant, and he offered to pay the fine for non attendance and asked to be excused. The assembly refused. The logic was unanswerable and entirely self-serving. The fine existed to punish absence, Montclamont was not absent. He was sitting right there. A man cannot pay a penalty for failing to do a thing he is not at that moment being compelled to do. He asked to be discharged. The house would not discharge him. He was in his seat, and his body was the forty fifth of the forty six the Federalists needed. And there he stayed. Montclumont was counted. Miley was counted. The Assembly of Pennsylvania had forty-six members present, and it proceeded to its business. Before it adjourned that afternoon, the last afternoon of the session, it voted that elections for the ratifying convention would be held on November 6th, and that the Convention would meet in Philadelphia on November 20th. Seven weeks. That was the whole interval between the calling of the Convention and the day it sat in the second largest state in the Union on the question of whether to replace the government. The Constitution had been public for twelve days. The nineteen dissenters published their side of the story the next day. Sixteen of them signed an address printed on a broadside and dated September 29th, laying out what had been done to them and why they had objected to the Constitution in the first place. It went out into Pennsylvania as a single sheet, and it was the first organized public statement of the opposition anywhere in America. The Federalists had moved so fast that the first thing the opposition in Pennsylvania ever published was not an argument about the Constitution, it was a complaint about procedures. But the complaint carried the argument inside of it. The address said that a government was being fastened on the people at a speed designed to prevent them from thinking about it. That charge was going to be made in every state. And in Pennsylvania, the Federalists had handed over the evidence themselves in public with witnesses. They had also created a problem for themselves. Dragging elected representatives through the streets to make a quorum did not look good. Even the men who wanted the Constitution. Through early October, the talk in the city turned to the violence of those events. And a federalist cause that had every advantage in Pennsylvania found itself explaining its own conduct. The Federalists needed someone to stand up in public and make the case on its merits, and there was an obvious man for it. Into the State House yard on the evening of Saturday, October 6th, walked James Wilson. Wilson was one of the 39 signers, and after Madison, probably the most important mind in the convention that had just ended. He was Scottish born, nearsighted, cold in manners, formidable in argument, and thoroughly disliked by the Western counties of Pennsylvania, who associated him with lawyers, banks, land speculation, and who were not wrong about any of it. A crowd had assembled for a public meeting to nominate assembly candidates. Wilson rose to speak and gave the first public defense of the Constitution by anyone who had helped write it, which meant he was also the first man to say out loud on the record what the delegates had spent four months saying to each other behind guarded and closed doors. He went after the objection that was already doing the most damage, that the Constitution had no Bill of Rights. Nathaniel Gorems had sketched the answer three weeks earlier on the floor of Congress in New York City, in a room whose debates were about to be struck off the record. Wilson made it in a courtyard in front of a crowd in language built to be reprinted. And he would not concede the point. He argued that a Bill of Rights would not merely be unnecessary but incoherent, that it rested on a misunderstanding of what kind of government was being proposed. When the people establish the powers of legislation under their separate governments, they are investing 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. That is, the state governments. They begin with all powers there is, and a bill of rights carves the exceptions into it. Then he turned. But in the delegating federal powers, another principle 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 the former case, everything which is not reserved is given. But in the latter, the reserve of the proposition prevails and everything which is not given is reserved. The new Congress would only have the powers the document handed it, one by one, in a list. It would have no power over the press because no power over the press appears anywhere in the text. A Bill of Rights protecting the press would therefore be guarding against something that could not happen. And Wilson took it one step further into an argument that has never entirely gone away. Writing down a list of protected rights, he suggested, might actually be dangerous, because it implied that the government had some power in that area, which is why the exception had to be carved out. Define the limits of a power that is never granted, and you have quietly conceded that the power exists. The speech was printed in an extra edition of the Pennsylvania Herald on October 9th, and reprinted in something like 35 to 40 newspapers, in broadsides and pamphlets. It was, for the next 10 months, the Federalist answer on the Bill of Rights everywhere in America. The opposition's reply to it was short and it never went away. Wilson's whole argument rested on the powers being a fixed list. But the document also gave Congress the authority to make all laws necessary and proper for carrying its powers in execution. And it declared federal law supreme over the states, and it created federal courts to say what the law meant. Grant a power to tax and then add whatever is necessary and proper to collect it, and the list stops being a list. So the question was not whether the Constitution said Congress could regulate the press. The question was who decides what is necessary and proper? And the answer in the document was a Congress and a set of courts, both federal, neither of them bound by anything written down. Wilson was offering a promise that a power had not been granted. The opposition wanted that in writing, because a promise is only as good as the men interpreting it. The day before he spoke, a Philadelphia paper had published the first essay by a writer calling himself Sentinel. The opening shot of what became 18 essays and the most sustained anti-federalist attack published anywhere. Sentinel's first complaint was the missing Bill of Rights. Sentinel's method was to go after the thing the Federalists were relying on most, which was not an argument at all. It was George Washington and Dr. Franklin's reputations. Sentinel told his readers in his first number that they were being asked to take a government on trust from two men, one of them a great general and the other very old, and that the character of the men recommending a plan is no substitute for reading the plan. He also told them what he thought the plan was. It has none of the essential requisites of a free government, but on the contrary, that it is a most daring attempt to establish a despotic aristocracy among free men that the world has ever witnessed. He went at the two names directly, which almost nobody else was willing to do. General Washington, he wrote, had been duped in a convention, and Dr. Franklin was too old to have understood what he was doing there. Sentinel's readers were being asked to hand over their government on the strength of two reputations, and he told them that reputations were not arguments. The author was almost certainly Samuel Bryan, a young man whose father sat in the Pennsylvania Supreme Court and had led the state's radical party for decades. Bryan wrote fast, wrote well, and wrote with a contempt for Wilson that came off the page. So the argument was joined in Philadelphia within two weeks of the signing in print, at speed between a signer of the Constitution and a 28-year-old writing under a Roman name. The elections came on November 6th. Turnout was low, and the lowest were where the opposition lived. There were reasons that had nothing to do with enthusiasm. The election had been called with about five weeks' notice in November in a state where farmers in the western counties might live a full day's ride from a polling place. At the end of a harvest, with winter roads coming on, in Philadelphia a man could walk and vote. In Westmoreland he could not. The city and the eastern counties returned men who supported the Constitution almost without exception. The West sent its own, and its own were very badly outnumbered. When the convention met at the State House on November 20th, the arithmetic was already settled. 46 for 23 against, 2 to 1. And the convention would start 46 to 23, and it would vote at the end forty six to twenty-three along partisan lines. Not one man in that room changed his mind in three weeks of arguments, and every one of them knew on the first day roughly how it would end. So what were the twenty-three doing there? They were not fools, and they were not stalling for its own sake. They were doing what a minority does when the vote is lost, putting the objections on the record, forcing the majority to answer them in public, and building the case that would be carried into the next state and the next. The convention did at least do the thing the assembly had not. On its third day, it ordered the Constitution read aloud in the chamber, clause by clause, and then it argued about it for three weeks. Which is more consideration than the document got in most states, and considerably more than the Assembly gave the question of whether to consider it. The opposition asked for more time and did not get it. They asked that the amendments they proposed be entered on the record so the public could read them, and did not get that either. The leaders were John Smiley of Fayette County and William Findley of Westmoreland and Robert Whitehill of Cumberland. Against them, doing nearly all the work himself was James Wilson. In a convention of 69 men, the Federalists let one man carry the argument, and he did. Wilson's answers to the consolidation charge went into his opening words. Everything argued would be about sovereignty, which does not sit with the states and it does not sit with the national government. It sits with the people, who are its only source, and who may hand out as much or as little as they choose to whichever government they choose and take it back when they please. In his argument, the states were not losing sovereignty to the national government, because the states had never owned it. The people were making a second grant in a second instrument alongside the ones they had already made to the states. That is why the document opened the way it did, and why the men who wrote it had gone to the conventions of the people instead of the legislatures. It was a bolder claim than most federalists cared to make out loud. And it answered the consolidation charge by conceding the premise and moving the grounds. These were not men who had wandered in off a farm to be confused by their betters. Whatever Philadelphia said about them, Findley had come over from Ireland as a weaver, taught school, served in the war, and made himself one of the shrewdest political operators in Pennsylvania. Smiley had come from Ireland too, farmed in the west of the state, and sat in the Assembly for years. Whitehall was a Cumberland County farmer who had helped write Pennsylvania's own constitution in 1776. They had decades of practical experience in government between them, and what they had learned from it was that distance is the enemy of accountability. A man in Fayette County could ride to the Pennsylvania Assembly and be heard. A national legislature meeting hundreds of miles away with one representative for every 30,000 people would be a government he read about in newspapers months after it acted on him. The core of their argument was not the Bill of Rights, though they argued that too, it was consolidation. Their claim was that the Constitution did not create a federation of states at all. It created a single national government that would over time absorb the states entirely, and that the men who wrote it knew this and had not said so. Finley made the case on December 1st at length, and it was strong enough that Wilson had already conceded the standard. If the objections were true, Wilson said, it would be a serious one. Their argument ran through the powers. A government that can tax directly without going through the states has the thing that makes a sovereign. There cannot be two sovereign powers over the same people. A subordinate sovereignty is no sovereignty at all. The federal courts would reach as far as federal laws, which was everywhere. Officers would swear allegiance to the national government. Federal officers would be paid out of the national treasury, not by the states. Add it up, Finley said, and you do not have a confederation with a stronger center. You have one government and thirteen administrative districts that have not been told yet. Smiley called the proposed government a complete aristocracy. Whitehall said it was a government which originates in mystery and must terminate in despotism. And Whitehall made the practical point about the press that answered Wilson directly. It does not matter that Congress is given no power over the press because Congress will claim whatever power it needs to preserve itself, and there is nothing written down to stop it. The Federalists' answers came mostly from Wilson, and on one point they came from Benjamin Rush, in a way that did not help. When Finlay argued that the Constitution would annihilate the state sovereignties, Rush let it be understood on the floor that he saw that coming and rejoiced at it. That was not the party line. The party line was that the states were safe. Rush had just told the convention, that that objection was correct, and that he was glad of it. It fed the other charges they kept making. Look at who is for this, Smiley said in substance, and Sentinel said in print. The merchants, the financiers, the lawyers, the men who hold public paper and would like it paid at face value, the men who call themselves the better sort, and look at who is against it. The men who farm. The Federalists answered it by inverting their argument that the men resisting were county office holders, defending their own salaries and their own little jurisdictions, and that the country's troubles were exactly the sort a legislature of Pennsylvania farmers could not fix and would not admit existed. Findlay had a reply to that, and it was the best line the opposition landed the whole convention. The Federalists, he said, had made a business of painting the country's necessities in the darkest colors they could mix, like persuading a man in health that he is sick. On December twelfth, the convention voted. Before the final question, Whitehall rose with the last trick the minority had. He offered fifteen amendments, a declaration of rights among them, and a structural change to the taxing power in the courts, and he moved that the convention be adjourned, not rejected. Adjourned and go home and give the people of Pennsylvania time to consider the subject and instruct their delegates and come back. It was the same request the nineteen had made in the Assembly in September, which was the same request the opposition was making since the document was printed. Not no, but wait. The motion was rejected. The amendments were not entered on the record, the Convention moved to the final question. The vote on ratification was forty six to twenty three. Pennsylvania was the second state to ratify the Constitution. Delaware had beaten it by five days. On December 7th, at a tavern in Dover, 30 Delaware delegates had voted yes and none had voted no, and the whole business was over so quickly and so amicably that the state's chief distinction in the ratification fight is that it had no fight. Pennsylvania was where they actually argued about it, and those arguments were now traveling out into the country. Six days later, on December 18th, a document titled The Address and Reasons of Descent of the Minority of the Convention of the State of Pennsylvania to their constituents was published. It was long, and it did what no anti-federalist writing had done yet. It collected the objections into a single systematic statement, with a proposed Bill of Rights attached in numbered articles. In short, consolidation pervades the whole Constitution. It begins with an enunciation that such was the intention. The main pillars of the fabric correspond with it, and the concluding paragraph is another confirmation of it. And at the end, the descent made its claim about what the objection actually was. We have confined our objections to the great and essential defects. The main pillars of the Constitution, which have shown to be inconsistent with the liberty and happiness of the people, as its establishment, will annihilate the state governments and produce one consolidated government that will eventually and speedily issue in a supremacy of despotism. Whitehall's fifteen amendments, refused by the Convention and kept out of the record, was printed in full in the dissent. A set of numbered articles that read very much like a Bill of Rights, because that's what they were. The right of conscience, trial by jury, freedom of the press, protection against unreasonable searches and general warrants, the right to speak, to assemble, to petition, limits on standing armies in peacetime. The Convention had refused to record them. Bryant printed them in a newspaper, and the newspapers went everywhere. The dissent was reprinted across Pennsylvania and then across the country, and several states became the standard text of the opposition, the thing an anti federalist handed you when he asked you what was wrong with the Constitution. Its probable author was Samuel Bryan, the same young man writing as Sentinel, who claimed it years afterwards in letters to Thomas Jefferson and to Albert Gallatin. A 28-year-old with a printing press had written both the most sustained attack on the Constitution and the Opposition's founding document. So Pennsylvania delivered the Federalists a ratification by two to one in 11 weeks in the second largest state of the Union. It also delivered the opposition its founding document, its most quotable phrases, and a story about two men held down in their chairs that would be told in every state where a Federalist argued that this was all being done with the free consent of the people. The Federalists had wanted speed, and speed worked in Pennsylvania. What they had bought with it was a state that did not accept the result. In the western counties, the response to ratification was not concession. Over that winter, petitions went round the backcountry asking the Assembly to repudiate what the Convention had done. They came in from Northampton, Donfin, Bedford, Franklin, Cumberland, and Westmoreland, six thousand and five signatures laid on the table of the Pennsylvania Assembly. Petitions signed in Huntington County had never arrived at all because supporters of the Constitution destroyed them. The convention had spoken for Pennsylvania. Six thousand Pennsylvanians signed their names to say it had not. Thank you for listening to this episode of American Political History. If you want to support the show, please subscribe, leave a five star rating, and share this show with someone you think would enjoy listening. Thank you again, and until next time.