Letters from The Federal Farmer to The Republican
(Richard Henry Lee ?)

IV

October 12th, 1787.

Dear Sir,

It will not be possible to establish in the federal courts the jury trial of
the vicinage so well as in the state courts.

Third. There appears to me to be not only a premature deposit of some
important powers in the general government—but many of those deposited
there are undefined, and may be used to good or bad purposes as honest or
designing men shall prevail. By Art. 1. Sect. 2, representatives and direct
taxes shall be apportioned among the several states, etc.—same art.
sect. 8, the congress shall have powers to lay and collect taxes, duties, etc.
for the common defence and general welfare, but all duties, imposts and
excises, shall be uniform throughout the United States: By the first recited
clause, direct taxes shall be apportioned on the states. This seems to favour
the idea suggested by some sensible men and writers, that congress, as to
direct taxes, will only have power to make requisitions, but the latter clause,
power to lay and collect taxes, etc seems clearly to favour the contrary
opinion and, in my mind, the true one, that congress shall have power to tax
immediately individuals, without the intervention of the state legislatures[;]
in fact the first clause appears to me only to provide that each state shall
pay a certain portion of the tax, and the latter to provide that congress shall
have power to lay and collect taxes, that is to assess upon, and to collect of
the individuals in the state, the states quota; but these still I consider
as undefined powers, because judicious men understand them differently.

It is doubtful whether the vice president is to have any qualifications;
none are mentioned; but he may serve as president, and it may be inferred, he
ought to be qualified therefore as the president; but the qualifications of the
president are required only of the person to be elected president. By art. the
2, sect. 2. “But the congress may by law vest the appointment of such
inferior officers as they think proper in the president alone, in the courts of
law, or in the heads of the departments:” Who are inferior officers? May
not a congress disposed to vest the appointment of all officers in the
president, under this clause, vest the appointment of almost every officer in
the president alone, and destroy the check mentioned in the first part of the
clause, and lodged in the senate. It is true, this check is badly lodged, but
then some check upon the first magistrate in appointing officers, ought it
appears by the opinion of the convention, and by the general opinion, to be
established in the constitution. By art. 3, sect. 2, the supreme court shall
have appellate jurisdiction as to law and facts with such exceptions, etc. to
what extent is it intended the exceptions shall be carried—Congress may
carry them so far as to annihilate substantially the appellate jurisdiction,
and the clause be rendered of very little importance.

4th. There are certain rights which we have always held sacred in the United
States, and recognized in all our constitutions, and which, by the adoption of
the new constitution in its present form, will be left unsecured. By article 6,
the proposed constitution, and the laws of the United States, which shall be
made in pursuance thereof; and all treaties made, or which shall be made under
the authority of the United States, shall be the supreme law of the land; and
the judges in every state shall be bound thereby; any thing in the constitution
or laws of any state to the contrary notwithstanding.

It is to be observed that when the people shall adopt the proposed
constitution it will be their last and supreme act; it will be adopted not by
the people of New-Hampshire, Massachusetts, etc. but by the people of the
United States; and wherever this constitution, or any part of it, shall be
incompatible with the ancient customs, rights, the laws or the constitutions
heretofore established in the United States, it will entirely abolish them and
do them away: And not only this, but the laws of the United States which shall
be made in pursuance of the federal constitution will be also supreme laws, and
wherever they shall be incompatible with those customs, rights, laws or
constitutions heretofore established, they will also entirely abolish them and
do them away.

By the article before recited, treaties also made under the authority of the
United States, shall be the supreme law: It is not said that these treaties
shall be made in pursuance of the constitution—nor are there any
constitutional bounds set to those who shall make them: The president and two
thirds of the senate will be empowered to make treaties indefinitely, and when
these treaties shall be made, they will also abolish all laws and state
constitutions incompatible with them. This power in the president and senate is
absolute, and the judges will be bound to allow full force to whatever rule,
article or thing the president and senate shall establish by treaty, whether it
be practicable to set any bounds to those who make treaties, I am not able to
say: if not, it proves that this power ought to be more safely lodged.

The federal constitution, the laws of congress made in pursuance of the
constitution, and all treaties must have full force and effect in all parts of
the United States; and all other laws, rights and constitutions which stand in
their way must yield: It is proper the national laws should be supreme, and
superior to state or district laws: but then the national laws ought to yield
to unalienable or fundamental rights—and national laws, made by a few
men, should extend only to a few national objects. This will not be the case
with the laws of congress: To have any proper idea of their extent, we must
carefully examine the legislative, executive and judicial powers proposed to be
lodged in the general government, and consider them in connection with a
general clause in art. 1. sect. 8, in these words (after inumerating a number
of powers) “To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers vested by
this constitution in the government of the United States, or in any department
or officer thereof.”—The powers of this government as has been
observed, extend to internal as well as external objects, and to those objects
to which all others are subordinate; it is almost impossible to have a just
conception of these powers, or of the extent and number of the laws which may
be deemed necessary and proper to carry them into effect, till we shall come to
exercise those powers and make the laws. In making laws to carry those powers
into effect, it is to be expected, that a wise and prudent congress will pay
respect to the opinions of a free people, and bottom their laws on those
principles which have been considered as essential and fundamental in the
British, and in our government. But a congress of a different character will
not be bound by the constitution to pay respect to those principles.

It is said, that when the people make a constitution, and delegate powers
that all powers not delegated by them to those who govern is
reserved in the people; and that the people, in the present case, have reserved
in themselves, and in their state governments, every right and power not
expressly given by the federal constitution to those who shall administer the
national government. It is said on the other hand, that the people, when they
make a constitution, yield all power not expressly reserved to themselves. The
truth is, in either case, it is mere matter of opinion and men usually take
either side of the argument, as will best answer their purposes: But the
general presumption being, that men who govern, will, in doubtful cases,
construe laws and constitutions most favourably for encreasing their own
powers; all wise and prudent people, in forming constitutions, have drawn the
line, and carefully described the powers parted with and the powers reserved.
By the state constitutions, certain rights have been reserved in the people; or
rather, they have been recognized and established in such a manner, that state
legislatures are bound to respect them, and to make no laws infringing upon
them. The state legislatures are obliged to take notice of the bills of rights
of their respective states. The bills of rights, and the state constitutions,
are fundamental compacts only between those who govern, and the people of the
same state.

In the year 1788 the people of the United States make a federal
constitution, which is a fundamental compact between them and their federal
rulers; these rulers, in the nature of things, cannot be bound to take notice
of any other compact. It would be absurd for them, in making laws, to look over
thirteen, fifteen, or twenty state constitutions, to see what rights are
established as fundamental, and must not be infringed upon, in making laws in
the society. It is true, they would be bound to do it if the people, in their
federal compact, should refer to the state constitutions, recognize all parts
not inconsistent with the federal constitution, and direct their federal rulers
to take notice of them accordingly; but this is not the case, as the plan
stands proposed at present; and it is absurd, to suppose so unnatural an idea
is intended or implied. I think my opinion is not only founded in reason, but I
think it is supported by the report of the convention itself. If there are a
number of rights established by the state constitutions, and which will remain
sacred, and the general government is bound to take notice of them—it
must take notice of one as well as another; and if unnecessary to recognize or
establish one by the federal constitution, it would be unnecessary to recognize
or establish another by it. If the federal constitution is to be construed so
far in connection with the state constitutions, as to leave the trial by jury
in civil causes, for instance, secured; on the same principles it would have
left the trial by jury in criminal causes, the benefits of the writ of habeas
corpus, etc. secured; they all stand on the same footing; they are the common
rights of Americans, and have been recognized by the state constitutions: But
the convention found it necessary to recognize or re-establish the benefits of
that writ, and the jury trial in criminal cases. As to expost facto
laws. the convention has done the same in one case, and gone further in
another. It is part of the compact between the people of each state and their
rulers, that no expost facto laws shall be made. But the convention, by
Art. I Sect. 10 have put a sanction upon this part even of the state compacts.
In fact, the 9th and 10th Sections in Art. I. in the proposed constitution, are
no more nor less, than a partial bill of rights; they establish certain
principles as part of the compact upon which the federal legislators and
officers can never infringe. It is here wisely stipulated, that the federal
legislature shall never pass a bill of attainder, or expost facto law;
that no tax shall be laid on articles exported, etc. The establishing of one
right implies the necessity of establishing another and similar one.

On the whole, the position appears to me to be undeniable, that this bill of
rights ought to be carried farther, and some other principles established, as a
part of this fundamental compact between the people of the United States and
their federal rulers.

It is true, we are not disposed to differ much, at present, about religion;
but when we are making a constitution, it is to be hoped, for ages and millions
yet unborn, why not establish the free exercise of religion, as a part of the
national compact. There are other essential rights, which we have justly
understood to be the rights of freemen; as freedom from hasty and unreasonable
search warrants, warrants not founded on oath, and not issued with due caution,
for searching and seizing men’s papers, property, and persons. The trials by
jury in civil causes, it is said, varies so much in the several states, that no
words could be found for the uniform establishment of it. If so, the federal
legislation will not be able to establish it by any general laws. I confess I
am of opinion it may be established, but not in that beneficial manner in which
we may enjoy it, for the reasons beforementioned. When I speak of the jury
trial of the vicinage, or the trial of the fact in the neighbourhood,—I
do not lay so much stress upon the circumstance of our being tried by our
neighbours: in this enlightened country men may be probably impartially tried
by those who do not live very near them: but the trial of facts in the
neighbourhood is of great importance in other respects. Nothing can be more
essential than the cross examining witnesses, and generally before the triers
of the facts in question. The common people can establish facts with much more
ease with oral than written evidence; when trials of facts are removed to a
distance from the homes of the parties and witnesses, oral evidence becomes
intolerably expensive, and the parties must depend on written evidence, which
to the common people is expensive and almost useless; it must be frequently
taken ex parte, and but very seldom leads to the proper discovery of truth.

The trial by jury is very important in another point of view. It is
essential in every free country, that common people should have a part and
share of influence, in the judicial as well as in the legislative department.
To hold open to them the offices of senators, judges, and offices to fill which
an expensive education is required, cannot answer any valuable purposes for
them; they are not in a situation to be brought forward and to fill those
offices; these, and most other offices of any considerable importance, will be
occupied by the few. The few, the well born, etc. as Mr. Adams calls them, in
judicial decisions as well as in legislation, are generally disposed, and very
naturally too, to favour those of their own description.

The trial by jury in the judicial department, and the collection of the
people by their representatives in the legislature, are those fortunate
inventions which have procured for them, in this country, their true proportion
of influence, and the wisest and most fit means of protecting themselves in the
community. Their situation, as jurors and representatives, enables them to
acquire information and knowledge in the affairs and government of the society;
and to come forward, in turn, as the centinels and guardians of each other. I
am very sorry that even a few of our countrymen should consider jurors and
representatives in a different point of view, as ignorant troublesome bodies,
which ought not to have any share in the concerns of government.

I confess I do not see in what cases the congress can, with any pretence of
right, make a law to suppress the freedom of the press; though I am not clear,
that congress is restrained from laying any duties whatever on printing, and
from laying duties particularly heavy on certain pieces printed, and perhaps
congress may require large bonds for the payment of these duties. Should the
printer say, the freedom of the press was secured by the constitution of the
state in which he lived, congress might, and perhaps, with great propriety,
answer, that the federal constitution is the only compact existing between them
and the people; in this compact the people have named no others, and therefore
congress, in exercising the powers assigned them, and in making laws to carry
them into execution, are restrained by nothing beside the federal constitution,
any more than a state legislature is restrained by a compact between the
magistrates and people of a county, city, or town of which the people, in
forming the state constitution, have taken no notice.

It is not my object to enumerate rights of inconsiderable importance; but
there are others, no doubt, which ought to be established as a fundamental part
of the national system.

It is worthy observation, that all treaties are made by foreign nations with
a confederacy of thirteen states—that the western country is attached to
thirteen states—thirteen states have jointly and severally engaged to
pay the public debts.—Should a new government be formed of nine, ten,
eleven, or twelve states, those treaties could not be considered as binding on
the foreign nations who made them. However, I believe the probability to be,
that if nine states adopt the constitution, the others will.

It may also be worthy our examination, how far the provision for amending
this plan, when it shall be adopted, is of any importance. No measures can be
taken towards amendments, unless two-thirds of the congress, or two-thirds of
the legislatures of the several states shall agree.—While power is in
the hands of the people, or democratic part of the community, more especially
as at present, it is easy, according to the general course of human affairs,
for the few influential men in the community, to obtain conventions,
alterations in government, and to persuade the common people they may change
for the better, and to get from them a part of the power: But when power is
once transferred from the many to the few, all changes become extremely
difficult; the government, in this case. being beneficial to the few, they will
be exceedingly artful and adroit in preventing any measures which may lead to a
change; and nothing will produce it, but great exertions and severe struggles
on the part of the common people. Every man of reflection must see, that the
change now proposed, is a transfer of power from the many to the few, and the
probability is, the artful and ever active aristocracy, will prevent all
peaceable measures for changes, unless when they shall discover some favourable
moment to increase their own influence. I am sensible, thousands of men in the
United States, are disposed to adopt the proposed constitution, though they
perceive it to be essentially defective, under an idea that amendments of it,
may be obtained when necessary. This is a pernicious idea, it argues a
servility of character totally unfit for the support of free government; it is
very repugnant to that perpetual jealousy respecting liberty, so absolutely
necessary in all free states, spoken of by Mr. Dickinson.—However, if
our countrymen are so soon changed, and the language of 1774. is become odious
to them, it will be in vain to use the language of freedom, or to attempt to
rouse them to free enquiries: But I shall never believe this is the case with
them, whatever present appearances may be. till I shall have very strong
evidence indeed of it. Your’s, &c.

The Federal Farmer.