The Life of Albert Gallatin

BOOK II.

THE LEGISLATURE. 1789-1801

THE Federal Constitution of 1787, accepted only a few years later by all parties and by the whole people as the last word of political wisdom, was at its birth greatly admired by no one. The public mind was divided between two classes of axioms and theories, each embodying sound reasoning and honest conviction, but resting at bottom upon divergent habits of life and forms of industry. Among the commercial and professional citizens of the sea-board towns a strong government was thought necessary to protect their trade and their peace; but there was a wide latitude of opinion in regard to the degree of strength required for their purpose, and while a few of the ablest and most determined leaders would have frankly accepted the whole theory of the English constitution and as much of its machinery as possible, the mass even of their own followers instinctively preferred a federative and democratic system. Among the agricultural and scattered population of the country, where the necessity of police and authority was little felt, and where a strong government was an object of terror and hatred, the more ignorant and the more violent class might perhaps honestly deny the necessity for any national government at all; with the great majority, however, it was somewhat unwillingly conceded that national government was a necessary evil, and that some concessions of power must be made to it; their object was to reduce these concessions to the lowest possible point. No one can doubt where Mr. Gallatin’s sympathies would lie as between the two great social and political theories. The reaction against strong governments and their corruptions had a great part in that general feeling of restlessness and revolt which drew him from the centre of civilization to its outskirts. There could be no question of the “awful squinting towards monarchy” in portions of the proposed constitution, more especially in the office of President, and no one pretended that the instrument as it stood contained sufficient safeguards against abuse of public or of private liberties. It could expect little real sympathy among the western counties of Pennsylvania.

Nevertheless, in the convention, which was immediately called to ratify the Constitution on the part of the State, there was a majority in its favor of nearly two to one; a majority so large and so earnest that extremely little respect was paid to the minority and its modest proposals of amendments, the vote of ratification being at last carried against a helpless opposition by a species of force. Of this convention Mr. Gallatin was not a member; but when the action of other States, and notably of Massachusetts, Virginia, and New York, in recommending amendments at the moment of ratification, gave to the opposition new hopes of yet carrying some of their points, the party made a last effort in Pennsylvania, which resulted in calling a conference at Harrisburg on the 3d September, 1788. There thirty-three gentlemen assembled, of whom Mr. Gallatin was one; Blair McClanachan was chosen chairman; “free discussion and mature deliberation” followed, and a report, or declaration of opinion, was formally adopted. Two drafts of this document are among Mr. Gallatin’s papers, both written in his own hand, one of them, much amended and interlined, obviously a first sketch, used probably in committee as the ground-work of the adopted instrument. It is only a natural inference that he was the draughtsman.

There can be no doubt that Mr. Gallatin was one of those persons who thought the new Constitution went much too far. He would, doubtless, have preferred that all the great departments – executive, legislative, and judicial – should have been more closely restricted in their exercise of power, and, indeed, he would probably have thought it better still that the President should be reduced to a cipher, the legislature limited to functions little more than executive, and the judiciary restricted to admiralty and inter-state jurisdiction, with no other court than the Supreme Court, and without appellate jurisdiction other than by writ of error from the State courts. This would best have suited his early theories and prejudices. This rough draft, therefore, has some interest as showing how far he was disposed to carry his opposition to the Constitution, and it seems to show that he was inclined to go considerable lengths. The resolutions as there drafted read as follows:

“1st. Resolved, that in order to prevent a dissolution of the Union, and to secure our liberties and those of our posterity, it is necessary that a revision of the Federal Constitution be obtained in the most speedy manner.

“2d. That the safest manner to obtain such a revision will be, in conformity to the request of the State of New York, to use our endeavors to have a convention called as soon as possible;

“Resolved, therefore, that the Assembly of this State be petitioned to take the earliest opportunity to make an application for that purpose to the new Congress.

“3d. That in order that the friends to amendments of the Federal Constitution who are inhabitants of this State may act in concert, it is necessary, and it is hereby recommended to the several counties in the State, to appoint committees, who may correspond one with the other and with such similar committees as may be formed in other States.

“4th. That the friends to amendments to the Federal Constitution in the several States be invited to meet in a general conference, to be held at , on , and that members be elected by this conference, who, or any of them, shall meet at said place and time, in order to devise, in concert with such other delegates from the several States as may come under similar appointments, on such amendments to the Federal Constitution as to them may seem most necessary, and on the most likely way to carry them into effect.”

But it seems that the tendency of opinion in the meeting was towards a less energetic policy. The first resolution was transformed into a shape which falls little short of tameness, and has none of the simple directness of Gallatin’s style and thought:

“1st. Resolved, that it be recommended to the people of this State to acquiesce in the organization of the said government. But although we thus accord in its organization, we by no means lose sight of the grand object of obtaining very considerable amendments and alterations which we consider essential to preserve the peace and harmony of the Union and those invaluable privileges for which so much blood and treasure have been recently expended.

“2d. Resolved, that it is necessary to obtain a speedy revision of said Constitution by a general convention.

“3d. Resolved that, therefore, in order to effect this desirable end, a petition be presented to the Legislature of the State requesting that honorable body to take the earliest opportunity to make application for that purpose to the new Congress.”

Thus it appears that if Mr. Gallatin went to this conference with the object indicated in his first draft, he abandoned the scheme of a national organization for a reform of the Constitution, and greatly modified his attitude towards the Constitution itself before the conference adjourned. The petition, with which the report closed, recommended twelve amendments, drawn from among those previously recommended by Massachusetts, Virginia, New York, and other States, and containing little more than repetitions of language already familiar. How far Mr. Gallatin led or resisted this acquiescent policy is unknown; at all events, it was the policy henceforth adopted by the opposition, which readily accepted Mr. Madison’s very mild amendments and rapidly transformed itself into a party organization with hands stretched out to seize for itself these dangerous governmental powers. But Mr. Gallatin never changed his opinion that the President was too powerful; even in his most mature age he would probably have preferred a system more nearly resembling some of the present colonial governments of Great Britain.

In the course of the next year the Legislature of Pennsylvania summoned a convention to revise the State constitution. There was perhaps some ground for doubting the legality of this step, for the existing constitution of 1776 gave to the Council of Censors the power to devise and propose amendments and to call a convention, and the Assembly had properly nothing to do with the subject. Mr. Gallatin held strong opinions upon the impropriety of obtaining the desired amendments by a process which was itself unconstitutional, and he even attempted to organize an opposition in the western counties, and to persuade the voters of each election district to adopt resolutions denouncing the proceeding as unconstitutional, unnecessary, and highly improper, and refusing to elect delegates. Early in October, 1789, he wrote to this effect to the leading politicians of Washington and Alleghany Counties, and, among the rest, to Alexander Addison, who was a candidate for the convention, and whom he urged to withdraw. A part of this letter, dated October 7, ran as follows:

“Alterations in government are always dangerous, and no legislator ever did think of putting, in such an easy manner, the power in a mere majority to introduce them whenever they pleased. Such a doctrine once admitted would enable not only the Legislature but a majority of the more popular house, were two established, to make another appeal to the people on the first occasion, and instead of establishing on solid foundations a new government, would open the door to perpetual changes and destroy that stability so essential to the welfare of a nation; as no constitution acquires the permanent affection of the people but in proportion to its duration and age. Finally, those changes would, sooner or later, conclude in an appeal to arms, – the true meaning of those words so popular and so dangerous, An appeal to the People.”

Mr. Gallatin’s opposition came too late. His correspondents wrote back to the effect that combined action was impossible, and a few days later he was himself chosen a delegate from Fayette County to this same convention which he had felt himself bound in conscience to oppose. This was in accordance with all his future political practice, for Mr. Gallatin very rarely persisted in following his own judgment after it had been overruled, but in this instance his course was perhaps decisively affected by the sudden death of his wife, which occurred at this moment and made any escape from his habitual mode of life seem a relief and an object of desire.

The convention sat from November 24, 1789, till February 26, 1790, and was Gallatin’s apprenticeship in the public service. Among his papers are a number of memoranda, some of them indicating much elaboration, of speeches made or intended to be made in this body; one is an argument in favor of enlarging the number of Representatives in the House; another, against James Ross’s plan of choosing Senators by electors; another, on the liberty of the press, with “quotations from Roman code, supplied by Duponceau.” There is further a memorandum of his motion in regard to the right of suffrage, by virtue of which every “freeman who has attained the age of twenty-one years and been a resident and inhabitant during one year next before the days of election;” every naturalized freeholder, every naturalized citizen who had been assessed for State or county taxes for two years before election day, or who had resided ten years successively in the State, should be entitled to the suffrage, paupers and vagabonds only being excluded. Gallatin seems also to have been interested, both at this time and subsequently, in an attempt to lessen the difficulties growing from the separation of law and equity. On this subject he wrote early to John Marshall for advice, and although the reply has no very wide popular interest, yet, in the absence of any collection of Marshall’s writings, this letter may claim a place here, illustrating, as it does, not only the views of the future chief justice, but the interests and situation of Mr. Gallatin:

Dear Sir, – I have received yours of the 23d of December, and wish it was in my power to answer satisfactorily your questions concerning our judiciary system, but I was myself in the army during that period concerning the transactions of which you inquire, and have not since informed myself of the reasons which governed in making those changes which took place before the establishment of that system which I found on my coming to the bar. Under the colonial establishment the judges of common law were also judges of chancery; at the Revolution these powers were placed in different persons. I have not understood that there was any considerable opposition to this division of jurisdiction. Some of the reasons leading to it, I presume, were that the same person could not appropriate a sufficiency of time to each court to perform the public business with requisite despatch; that the principles of adjudication being different in the two courts, it was scarcely to be expected that eminence in each could be attained by the same man; that there was an apparent absurdity in seeing the same men revise in the characters of chancellors the judgments they had themselves rendered as common-law judges. There are, however, many who think that the chancery and common-law jurisdiction ought to be united in the same persons. They are actually united in our inferior courts; and I have never heard it suggested that this union is otherwise inconvenient than as it produces delay to the chancery docket. I never heard it proposed to give the judges of the general court chancery jurisdiction. When the district system was introduced in ‘82, it was designed to give the district judges the powers of chancellors, but the act did not then pass, though the part concerning the court of chancery formed no objection to the bill. When again introduced it assumed a different form, nor has the idea ever been revived.

The first act constituting a high court of chancery annexed a jury for the trial of all important facts in the cause. To this, I presume, we were led by that strong partiality which the citizens of America have for that mode of trial. It was soon parted with, and the facts submitted to the judge, with a power to direct an issue wherever the fact was doubtful. In most chancery cases the law and fact are so blended together that if a jury was impanelled of course the whole must be submitted to them, or every case must assume the form of a special verdict, which would produce inconvenience and delay.

The delays of the court of chancery have been immense, and those delays are inseparable from the court if the practice of England be observed. But that practice is not necessary. ‘Tis greatly abridged in Virginia by an Act passed in 1787, and great advantages result from the reform. There have been instances of suits depending for twenty years, but under our present regulations a decision would be had in that court as soon as any other in which there were an equal number of weighty causes. The parties may almost immediately set about collecting their proofs, and so soon as they have collected them they may set the cause on the court docket for a hearing.

It has never been proposed to blend the principles of common law and chancery so as for each to operate at the same time in the same cause; and I own it would seem to me to be very difficult to effect such a scheme, but at the same time it must be admitted that could it be effected it would save considerable sums of money to the litigant parties.