Thomas Jefferson Papers

To Thomas Jefferson from John Brown Cutting, 11 July 1788

From John Brown Cutting

London July 11. 1788


I am to congratulate you upon the adoption of the new national constitution of our country by the State of South Carolina. I cannot ascertain the precise numbers of the Convention, but the main question was carried by a majority of sixty six members, not without warm debate. I have mutilated a couple of newspapers which contain nothing beside the intelligence stamp’d on the columns cut out. From the specimen of eloquence and argument impressed on one of them a fair estimate may be formed of the talents of the Minority. That of Maryland exhibited proofs of riper ability. It seems to me (if it were not rash either to form or offer any opinion at this distance) that some of the gentlemen warmly opposed to an acceptance of the plan (in the back counties of Virginia) have diffused their objections throughout those of the two Carolinas which are most remote from the atlantic shores. In North Carolina violent contests at the election of members for their State Convention by a few of those tramontane districts have resulted. In one instance the operation of those intrigues to which I refer probably induced a majority of the voters to bestow their suffrages on men extremely obscure and unfit from excessive ignorance, as is alledged, to discuss or decide upon so great a question. In consequence of this conception the election was interrupted by those who wished men more enlightened, or as the phrase is, more fœderal. And by force of club law, their antagonists were defeated. I understand that North Carolina but for such forceful zeal in several parts of the Country wou’d not have exhibited a Convention so united in support of national system as is now the promise. The prospect now is that they will ratify at any rate. In apology for electioneering violences in that state, which few considerate citizens of our union will approve or attempt to justify, it may be urged that among the whole thirteen there is not a community, the internal and ferocious disturbances of which more loudly exact the interference of national authority and controul, such as is meant to be delegated by the ratification thus eagerly sought. Already the conflicts for independent power between those who denominate themselves citizens of Frankland and the residue of their neighbours who adhere to the legitimate government have issued in blood: armed parties within these few months have assaulted each other in open warfare, besieged dwelling houses inflicting mutual and mortal wounds; and menacing future feuds with which if not over-aw’d or quell’d by legal authority confessedly paramount to both parties and in some measure constituted for this express purpose, the worst sort of unsubdueable anarcy might be expected to result.

When I contemplate such events and the probability that similar ones might be engendered in various quarters of the union unless a strong superintending power vest in the general government capable to curb individual licentiousness and suffocate the germs of future discord; I am not surprized at the energy of almost the whole body of our enlighten’d and leading characters in every state who otherwise wou’d seem actuated with an unecessary if not intemperate zeal in a great and a good cause. Thus a person who were superficially to peruse the proceedings even of the liberal and patriotic Convention of Maryland wou’d be led to imagine that the objections and arguments of the Minority were treated with too much levity and even disdain by the majority. Whereas a minute scrutiny into the motives and the measures of each party wou’d satisfy a candid enquirer. It is not a solecism to say that the opposition to a thorough reform of the fœderal government began in Maryland even before the agitation of the question in the general Convention at Philadelphia. Mr. Martin, the attorney general, who was primarily appointed to that office by Mr. Chase, was by the same influence deputed to represent the State after Messrs. Carrol, Johnson &c. &c. the first choice of the legislature declined quitting Maryland even upon the important business of new-framing the national government. Mr. Chase having just before menaced the senate for rejecting a wide Emission of paper money and appealed to the people against them, they had joined in that general issue and cou’d not venture to relinquish to a violent and headstrong party their active influence in the senate as well as in the lower house at the very moment when it was so essentially needed to stem the torrent of the populace for the paper. Those Gentlemen therefore remained at home, convinced their fellow citizens of their superior rectitude and wisdom, and defeated that favourite measure of Mr. Chase: meanwhile Mr. Martin and Mr. John F. Mercer, a young gentleman whom you well know, went to the general Convention, opposed the great leading features of the plan which was afterwards promulged, withdrew themselves from any signature of it, and from the moment when it was proposed for ratification, in conjunction with Mr. Chase and his sure coadjutor Mr. Paca, exerted every effort to hinder its adoption. So far did Mr. Martin proceed in his avowed hostility, as even to detail in the face of decency, before the assembled Legislature of Maryland, the petty dialogues and paltry anecdotes of every description, that came to his knowledge in conventional committees and private conversations with the respective members of the Convention when at Philadelphia. I blush’d in my own bed-chamber when I read his speech on this side of the Atlantic. An hostility so premature and determin’d did certainly render those Gentlemen who waged it, obnoxious to many of their fellow citizens, who likewise recollected their warm conduct relevant to the bills of credit, which they had so recently urged Maryland to issue. When the Convention met on the 21st of April whatsoever proposition came from Messrs. Chase, Paca, Martin or Mercer was viewed with jealousy or disgust, and generally rejected, by a great majority. Nay so far did this disposition to neglect their sentiments prevail that even to their well grounded objections and most cogent arguments no reply was made—a great majority remained inflexibly silent or called for the main question which on Saturday the 26th. was carried by 63 to 11. After which Mr. Paca renewed a proposition which had been rejected the day before for the appointment of a committee to consider and report what amendments shou’d be recommended by the convention of Maryland, when 66 voted for such a committee. And accordingly Mr. Paca, Messrs. Johnson, S. Chase, Potts, Mercer, Goldsborough, Tighlman, Hanson, J. T. Chase, W. Tighlman Lee, McHenry and Gale were appointed.

Upon the following amendments the Committee agreed.

  • 1. “That Congress shall exercise no power but what is expressly delegated by this constitution.
  • 2. That there shall be a trial by jury in all criminal cases, according to the course of proceeding in the state wherein the offence is committed; and that there be no appeal from matter of fact, or second trial after acquittal: but this provision shall not extend to such cases as arise in the government of the land or naval forces.
  • 3. That in all actions on debts or contracts and in all other controversies respecting property, or in which the inferior fœderal courts have jurisdiction, the trial of facts shall be by jury, if required by either party: and that it be expressly declared, that the state courts in such cases, have a concurrent jurisdiction with the fœderal courts with an appeal from either, only as to matter of law, to the supreme fœderal court, if the matter in dispute be of value of dollars.
  • 4. That the inferior fœderal courts shall not have jurisdiction of less than dollars; and there may be an appeal in all cases of revenue, as well in matter of fact as law, and Congress may give the state Courts jurisdiction of revenue cases, for such sums and in such manner, as they may think proper.
  • 5. That in all cases of trespasses done within the body of a county, and within the inferior fœderal jurisdiction, the party injur’d shall be entitled to trial by jury in the state where the injury shall be committed; and that it be expressly declared that the state courts, in such cases, shall have concurrent jurisdiction with the fœderal courts; and there shall be no appeal from either, except on matter of law; and that no person be exempt from such jurisdiction and trial but ambassadors and ministers privileged by the law of Nations.
  • 6. That the fœderal courts shall not be entitled to jurisdiction by fictions or collusion.
  • 7. That the fœderal judges do not hold any other office of profit, or receive the profits of any other office under Congress, during the time they hold their commissions.
  • 8. That all warrants without oath or affirmation of a person conscienciously scrupulous of taking an oath, to search suspected places or to seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any person suspected, without naming or describing the place or person in special, are dangerous and ought not to be granted.
  • 9. That no soldier be enlisted for a longer time than four years, except in time of war, and then only during the war.
  • 10. That soldiers be not quartered in time of peace upon private houses without the consent of the owners.
  • 11. That no mutiny bill continue in force longer than two years.
  • 12. That the freedom of the press be inviolably preserved.
  • 13. That the militia shall not be subject to martial law, except in time of war, invasion or rebellion.”

Thus far there was a concurrence in opinion either unanimously or by a considerable majority of the Committee. But when the following amendments were laid before the committee, a majority negatived the same.

  • 1. That the militia unless selected by lot or voluntarily enlisted shall not be marched beyond the limits of an adjoining State, without the consent of their legislature or executive.
  • 2. That Congress shall have no power to alter or change the time place or manner of holding elections for senators or representatives, unless a state shall neglect to make regulations, or to execute its regulations, or shall be prevented by invasion or rebellion; in which cases only Congress may interfere, until the cause be removed.
  • 3. That in every law of Congress imposing direct taxes, the collection thereof shall be suspended for a certain reasonable time therein limited, and on payment of the sum by any state, by the time appointed, such taxes shall not be collected.
  • 4. That no standing army shall be kept up in time of peace unless with the consent of two thirds of the members present of each branch of Congress.
  • 5. That the president shall not command the army in person, without the consent of Congress.
  • 6. That no treaty shall be effectual to repeal or abrogate the constitutions or bills of rights of the states or any part of them.
  • 7. That no regulation of commerce or navigation act, shall be made, unless with the consent of two thirds of the members of each branch of Congress.
  • 8. That no member of Congress shall be eligible to any office of profit under Congress during the time for which he shall be appointed.
  • 9. That Congress shall have no power to lay a poll tax.
  • 10. That no person conscienciously scrupulous of bearing arms in any case, shall be compelled personally to serve as a soldier.
  • 11. That there be a responsible council to the president.
  • 12. That there be no national religion establish’d by law, but that all persons be equally entitled to protection in their religious liberty.
  • 13. That all imposts and duties laid by Congress shall be placed to the credit of the state in which the same be collected, and shall be deducted out of such states quota of the common or general expences of government.
  • 14. That every man hath a right to petition the legislature for redress of grievances in a peaceable and orderly manner.
  • 15. That it be declared, that all persons entrusted with the legislative or executive powers of government are the trustees and servants of the public; and as such accountable for their conduct. Wherefore whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government; the doctrine of non resistance to arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”

The introduction of these articles, especially the 7th and 13th, alarmed and gave offence to many of those among the majority who suspected the motives of Mr. Chase and his particular associates to be sinister and altogether hostile to any effectual plan of national government. And on Monday the 29th while the Committee were sitting the Convention upon motion resolved, “That this Convention will consider of no propositions for the amendment of the fœderal government, except such as shall be submitted to them by the Committee of thirteen.” Upon which the Committee being sent for by the Convention, a majority of them determined, that they wou’d make no report of any amendments whatsoever. The Convention then immediately adjourned sine die.

Since which William Paca, Messrs. S. and J. T. Chase and John F. Mercer, members of the Committee, and Messrs. Martin, Cockey, Harrison, Love, Cromwell Pinkney and 2 Ridgley’s members of Convention, have appeal’d to the public, complaining of the Convention, defending their own conduct and asserting that they “consider the proposed form of national government as very defective, and that the liberty and happiness of the people will be endangered if the system be not greatly changed and alter’d.”

I have undertaken this local detail because I thought it might not be unentertaining to you especially if you have seen no other narrative of the proceedings in Maryland except that which in a Boston paper of May 23 I transmitted to you through Mr. Parker. I have also inclosed for the same purpose of amusing the manly proceeding of a Virginia Court of appeals. Without knowing the particular merits of the cause, I may venture to applaud the integrity of Judges who thus fulfil their oaths and their duties. I am proud of such characters. They exalt themselves and their country, while they maintain the principles of the constitution of Virginia and manifest the unspotted probity of its judiciary department. I hope you will not think me too local or statically envious when I mention that a similar instance has occur’d in Massachusetts. Where when the legislature unintentionally trespassd upon a barrier of the Constitution the Judges of the supreme Court solemnly determin’d that the particular statute was unconstitutional. In the very next session there was a formal and unanimous repeal of the law which perhaps was unnecessary.

I have just heard from New York that Mr. Jay who was reported to be mortally hurt in the late anatomical riots there is in tolerable health. Mrs. and Col. Smith arrived at Halifax on the 7th of May. They were in New York on the 20th. Mr. Adams had not arrived in Boston on the 1st of June. Mr. Hancock is again elected Governor and General Lincoln Lt. Governor of Massachusetts. I have no letter from Col. Smith himself.

The people of the district of Kentuckey having met in Convention agree to accept their independance conformably to the terms of the Virginia Ordinance passed some time since. They are to organize and legislate on the 1st of January 1789.

If a good private opportunity occurs soon I will transmit you a pamphlet or two lately written in various parts of the Union. The most inferior I have perused upon the fœderal government is attributed (erroneously I believe) to Mr. St. George Tucker. Judge Hanson of Maryland treats the same topic well. But Mr. Maddison, (who I am assured is the genuine author of the two volumes of essays signed publius and heretofore given to Col. Hamilton of New York) it is agreed transcends every politician who has attempted to explain or defend any system of fœderal Polity.

To the contents of my last by Mr. Parker I have nothing to add nor have I aught to subtract from truths which are undeniable. In three weeks I expect to embark for Charlestown and intreat the honor of your commands. Labouring as I do in this Island under the misfortune of excessive ignorance concerning all affairs on the continent I ought to supplicate a single letter from you at least that when I arrive in Carolina I may not be wholly empty of such information as Mr. E. Rutledge or any other of your friends might expect one to convey from Europe if not orally yet in writing.

This day his britannick majesty is expected to put an end to the present session of parliament in a satisfactory and pacific speech to both houses. Much of the past three weeks has been consumed in framing a bill to regulate the transportation of slaves from Africa to the West India Islands. The attempt or supposed attempt to interfere in a branch of commerce so lucrative and extensive excited great alarm and warm opposition among the individuals interested in the same, who are against every species of innovation. Few acts have undergone more mutation or remark from their origin to ultimate legitimacy; altho but an extemporaneous measure to accomplish an humane object. Some rational and superior system of legislation will I hope be devised by our country gently to prepare the negroes for that reception of their natural rights which might be effected without distracting society or extinguishing property!

With suitable apologies for the prolixity of this letter I am with great respect & much attachment Your Excellency’s Most Obedt. Servant,

John Brown Cutting

If after perusal of the Carolina intelligence Mr. Short (to whom my best compliments are offerd) wou’d inclose it in a line to Mr. Rutledge to remain in the poste office at Strasbourg till call’d for he will amuse one friend and oblige another.

RC (DLC); endorsed. The Manly proceedings of a Virginia court of appeals that Cutting enclosed are referred to in Wythe to TJ, 10 July 1788; the account that Cutting sent has not been found, but it probably was a newspaper report.

The Pamphlet or two lately written in various parts of the union that Cutting promised to send were probably those discussed in the text and were related to the debate over the adoption of the Constitution. Cutting—possibly earlier—had sent to TJ two pamphlets by Tench Coxe, one being An Address to an Assembly of the Friends of American Manufactures, convened for the Purpose of establishing a Society for the Encouragement of Manufactures and the Useful Arts, read in the University of Pennsylvania, on Thursday the 9th of August 1787 (Philadelphia, Aitken, 1787), and the other An Enquiry into the Principles on which a Commercial System for the United States of America should be founded; to which are added some political observations connected with the Subject. Read before the Society for Political Enquiries, convened at the house of his Excellency Benjamin Franklin, Esquire, in Philadelphia May 11th, 1787 (Philadelphia, Aitken, 1787). See Sowerby, description begins Catalogue of the Library of Thomas Jefferson, compiled with annotations by E. Millicent Sowerby, Washington, 1952–55 description ends Nos. 3622–3.

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