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

VI.

December 25, 1787.

Dear sir,

My former letters to you, respecting the constitution proposed, were
calculated merely to lead to a fuller investigation of the subject; having more
extensively considered it, and the opinions of others relative to it, I shall,
in a few letters, more particularly endeavour to point out the defects, and
propose amendments. I shall in this make only a few general and introductory
observations, which, in the present state of the momentous question, may not be
improper; and I leave you, in all cases, to decide by a careful examination of
my works, upon the weight of my arguments, the propriety of my remarks, the
uprightness of my intentions, and the extent of my candor—I presume I am
writing to a man of candor and reflection, and not to an ardent, peevish, or
impatient man.

When the constitution was first published, there appeared to prevail a
misguided zeal to prevent a fair unbiassed examination of a subject of infinite
importance to this people and their posterity—to the cause of liberty
and the rights of mankind—and it was the duty of those who saw a
restless ardor, or design, attempting to mislead the people by a parade of
names and misrepresentations, to endeavour to prevent their having their
intended effects. The only way to stop the passions of men in their career is,
coolly to state facts, and deliberately to avow the truth—and to do this
we are frequently forced into a painful view of men and measures.

Since I wrote to you in October, I have heard much said, and seen many
pieces written, upon the subject in question; and on carefully examining them
on both sides, I find much less reason for changing my sentiments, respecting
the good and defective parts of the system proposed than I expected—The
opposers, as well as the advocates of it, confirm me in my opinion, that this
system affords, all circumstances considered, a better basis to build upon than
the confederation. And as to the principal defects, as the smallness of the
representation, the insecurity of elections, the undue mixture of powers in the
senate, the insecurity of some essential rights, &c. the opposition
appears, generally, to agree respecting them, and many of the ablest advocates
virtually to admit them—Clear it is, the latter do not attempt manfully
to defend these defective parts, but to cover them with a mysterious veil; they
concede, they retract; they say we could do no better; and some of them, when a
little out of temper, and hard pushed, use arguments that do more honor to
their ingenuity, than to their candor and firmness.

Three states have now adopted the constitution without amendments;
these, and other circumstances, ought to have their weight in deciding the
question, whether we will put the system into operation, adopt it, enumerate
and recommend the necessary amendments, which afterwards, by three-fourths of
the states, may be ingrafted into the system, or whether we will make the
amendments prior to the adoption—I only undertake to shew amendments are
essential and necessary—how far it is practicable to ingraft them into
the plan, prior to the adoption, the state conventions must determine. Our
situation is critical, and we have but our choice of evils—We may hazard
much by adopting the constitution in its present form—we may hazard more
by rejecting it wholly—we may hazard much by long contending about
amendments prior to the adoption. The greatest political evils that can befal
us, are discords and civil wars—the greatest blessings we can wish for,
are peace, union, and industry, under a mild, free, and steady government.
Amendments recommended will tend to guard and direct the administration—but there will be danger that the people, after the system shall be adopted,
will become inattentive to amendments—Their attention is now awake—the discussion of the subject, which has already taken place, has had a
happy effect—it has called forth the able advocates of liberty, and
tends to renew, in the minds of the people, their true republican jealousy and
vigilance, the strongest guard against the abuses of power; but the vigilance
of the people is not sufficiently constant to be depended on—Fortunate
it is for the body of a people, if they can continue attentive to their
liberties, long enough to erect for them a temple, and constitutional barriers
for their permanent security: when they are well fixed between the powers of
the rulers and the rights of the people, they become visible boundaries,
constantly seen by all, and any transgression of them is immediately
discovered: they serve as centinels for the people at all times, and especially
in those unavoidable intervals of inattention.

Some of the advocates, I believe, will agree to recommend good
amendments; but some of them will only consent to recommend indefinite,
specious, but unimportant ones; and this only with a view to keep the door open
for obtaining in some favourable moment, their main object, a complete
consolidation of the states, and a government much higher toned, less
republican and free than the one proposed. If necessity, therefore, should ever
oblige us to adopt the system, and recommend amendments, the true friends of a
federal republic must see they are well defined, and well calculated, not only
to prevent our system of government moving further from republican principles
and equality, but to bring it back nearer to them—they must be
constantly on their guard against the address, flattery, and manoeuvres of
their adversaries.

The gentlemen who oppose the constitution, or contend for amendments in
it, are frequently, and with much bitterness, charged with wantonly attacking
the men who framed it. The unjustness of this charge leads me to make one
observation upon the conduct of parties, &c. Some of the advocates are only
pretended federalists; in fact they wish for an abolition of the state
governments. Some of them I believe to be honest federalists, who wish to
preserve substantially the state governments united under an efficient
federal head; and many of them are blind tools without any object. Some of the
opposers also are only pretended federalists, who want no federal government,
or one merely advisory. Some of them are the true federalists, their object,
perhaps, more clearly seen, is the same with that of the honest federalists;
and some of them, probably, have no distinct object. We might as well call the
advocates and opposers tories and whigs, or any thing else, as federalists and
anti-federalists. To be for or against the constitution, as it stands, is not
much evidence of a federal disposition; if any names are applicable to the
parties, on account of their general politics, they are those of republicans
and anti-republicans. The opposers are generally men who support the rights of
the body of the people, and are properly republicans. The advocates are
generally men not very friendly to those rights, and properly
anti-republicans.

Had the advocates left the constitution, as they ought to have done, to
be adopted or rejected on account of its own merits or imperfections, I do not
believe the gentlemen who framed it would ever have been even alluded to in the
contest by the opposers. Instead of this, the ardent advocates begun by quoting
names as incontestible authorities for the implicit adoption of the system,
without any examination—treated all who opposed it as friends of
anarchy; and with an indecent virulence addressed M—n G—y, L—e,
and almost every man of weight they could find in the opposition by name. If
they had been candid men they would have applauded the moderation of the
opposers for not retaliating in this pointed manner, when so fair an
opportunity was given them; but the opposers generally saw that it was no time
to heat the passions; but, at the same time, they saw there was something more
than mere zeal in many of their adversaries; they saw them attempting to
mislead the people, and to precipitate their divisions, by the sound of names,
and forced to do it, the opposers, in general terms, alledged those names were
not of sufficient authority to justify the hasty adoption of the system
contended for. The convention, as a body, was undoubtedly respectable; it was,
generally, composed of members of the then and preceding Congresses: as a body
of respectable men we ought to view it. To select individual names, is an
invitation to personal attacks, and the advocates, for their own sake, ought to
have known the abilities, politics, and situation of some of their favourite
characters better, before they held them up to view in the manner they did, as
men entitled to our implicit political belief: they ought to have known,
whether all the men they so held up to view could, for their past conduct in
public offices, be approved or not by the public records, and the honest part
of the community. These ardent advocates seem now to be peevish and angry,
because, by their own folly, they have led to an investigation of facts and of
political characters, unfavourable to them, which they had not the discernment
to foresee. They may well apprehend they have opened a door to some Junius, or
to some man, after his manner, with his polite addresses to men by name, to
state serious facts, and unfold the truth; but these advocates may rest
assured, that cool men in the opposition, best acquainted with the affairs of
the country, will not, in the critical passage of a people from one
constitution to another, pursue inquiries, which, in other circumstances, will
be deserving of the highest praise. I will say nothing further about political
characters, but examine the constitution; and as a necessary and previous
measure to a particular examination, I shall state a few general positions and
principles, which receive a general assent, and briefly notice the leading
features of the confederation, and several state conventions, to which, through the whole investigation, we must frequently have recourse, to aid the mind in its determinations.

We can put but little dependance on the partial and vague information
transmitted to us respecting antient governments; our situation as a people is
peculiar: our people in general have a high sense of freedom; they are high
spirited, though capable of deliberate measures; they are intelligent,
discerning, and well informed; and it is to their condition we must mould the
constitution and laws. We have no royal or noble families, and all things
concur in favour of a government entirely elective. We have tried our abilities
as freemen in a most arduous contest, and have succeeded; but we now find the
main spring of our movements were the love of liberty, and a temporary ardor,
and not any energetic principle in the federal system.

Our territories are far too extensive for a limited monarchy, in which
the representatives must frequently assemble, and the laws operate mildly and
systematically. The most elligible system is a federal republic, that is, a
system in which national concerns may be transacted in the centre, and local
affairs in state or district governments.

The powers of the union ought to be extended to commerce, the coin, and
national objects; and a division of powers, and a deposit of them in different
hands, is safest.

Good government is generally the result of experience and gradual
improvements, and a punctual execution of the laws is essential to the
preservation of life, liberty, and property. Taxes are always necessary, and
the power to raise them can never be safely lodged without checks and
limitation, but in a full and substantial representation of the body of the
people; the quantity of power delegated ought to be compensated by the brevity
of the time of holding it, in order to prevent the possessors increasing it.
The supreme power is in the people, and rulers possess only that portion which
is expressly given them; yet the wisest people have often declared this is the
case on proper occasions, and have carefully formed stipulations to fix the
extent, and limit the exercise of the power given.

The people by Magna Charta, &c. did not acquire powers, or receive
privileges from the king, they only ascertained and fixed those they were
entitled to as Englishmen; the title used by the king “we grant,” was mere
form. Representation, and the jury trial, are the best features of a free
government ever as yet discovered, and the only means by which the body of the
people can have their proper influence in the affairs of government.

In a federal system we must not only balance the parts of the same
government, as that of the state, or that of the union; but we must find a
balancing influence between the general and local governments—the latter
is what men or writers have but very little or imperfectly considered.

A free and mild government is that in which no laws can be made without
the formal and free consent of the people, or of their constitutional
representatives; that is, of a substantial representative branch. Liberty, in
its genuine sense, is security to enjoy the effects of our honest industry and
labours, in a free and mild government, and personal security from all illegal
restraints.

Of rights, some are natural and unalienable, of which even the people
cannot deprive individuals: Some are constitutional or fundamental; these
cannot be altered or abolished by the ordinary laws; but the people, by express
acts, may alter or abolish them—These, such as the trial by jury, the
benefits of the writ of habeas corpus, &c. individuals claim under the
solemn compacts of the people, as constitutions, or at least under laws so
strengthened by long usuage as not to be repealable by the ordinary legislature—and some are common or mere legal rights, that is, such as individuals
claim under laws which the ordinary legislature may alter or abolish at
pleasure.

The confederation is a league of friendship among the states or
sovereignties for the common defence and mutual welfare—Each state
expressly retains its sovereignty, and all powers not expressly given to
congress—All federal powers are lodged in a congress of delegates
annually elected by the state legislatures, except in Connecticut and
Rhode-Island, where they are chosen by the people—Each state has a vote
in congress, pays its delegates, and may instruct or recall them; no delegate
can hold any office of profit, or serve more than three years in any six years—Each state may be represented by not less than two, or more than seven
delegates.

Congress (nine states agreeing) may make peace and war, treaties and
alliances, grant letters of marque and reprisal, coin money, regulate the alloy
and value of the coin, require men and monies of the states by fixed
proportions, and appropriate monies, form armies and navies, emit bills of
credit, and borrow monies.

Congress (seven states agreeing) may send and receive ambassadors,
regulate captures, make rules for governing the army and navy, institute courts
for the trial of piracies and felonies committed on the high seas, and for
settling territorial disputes between the individual states, regulate weight
and measures, post offices, and Indian affairs.

No state, without the consent of congress, can send or receive
embassies, make any agreement with any other state, or a foreign state, keep up
any vessels of war or bodies of forces in time of peace, or engage in war, or
lay any duties which may interfere with the treaties of congress—Each
state must appoint regimental officers, and keep up a well regulated militia—Each state may prohibit the importation or exportation of any species of
goods.

The free inhabitants of one state are intitled to the privileges and
immunities of the free citizens of the other states—Credit in each state
shall be given to the records and judicial proceedings in the others. Canada,
acceding, may be admitted, and any other colony may be admitted by the consent
of nine states.

Alterations may be made by the agreement of congress, and confirmation
of all the state legislatures.

The following, I think, will be allowed to be unalienable or fundamental
rights in the United States:—

No man, demeaning himself peaceably, shall be molested on account of his
religion or mode of worship—The people have a right to hold and enjoy
their property according to known standing laws, and which cannot be taken from
them without their consent, or the consent of their representatives; and
whenever taken in the pressing urgencies of government, they are to receive a
reasonable compensation for it—Individual security consists in having
free recourse to the laws—The people are subject to no laws or taxes not
assented to by their representatives constitutionally assembled—They are
at all times intitled to the benefits of the writ of habeas corpus, the trial
by jury in criminal and civil causes—They have a right, when charged, to
a speedy trial in the vicinage; to be heard by themselves or counsel, not to be
compelled to furnish evidence against themselves, to have witnesses face to
face, and to confront their adversaries before the judge—No man is held
to answer a crime charged upon him till it be substantially described to him;
and he is subject to no unreasonable searches or seizures of his person, papers
or effects—The people have a right to assemble in an orderly manner, and
petition the government for a redress of wrongs—The freedom of the press
ought not to be restrained—No emoluments, except for actual service—No hereditary honors, or orders of nobility, ought to be allowed—The military ought to be subordinate to the civil authority, and no soldier be
quartered on the citizens without their consent—The militia ought always
to be armed and disciplined, and the usual defence of the country—The
supreme power is in the people, and power delegated ought to return to them at
stated periods, and frequently—The legislative, executive, and judicial
powers, ought always to be kept distinct—others perhaps might be
added.

The organization of the state governments—Each state has a
legislature, an executive, and a judicial branch—In general legislators
are excluded from the important executive and judicial offices—Except in
the Carolinas there is no constitutional distinction among Christian sects—The constitutions of New York, Delaware, and Virginia, exclude the
clergy from offices civil and military—the other states do nearly the
same in practice.

Each state has a democratic branch elected twice a-year in Rhode-Island
and Connecticut, biennially in South-Carolina, and annually in the other states—There are about 1500 representatives in all the states, or one to each
1700 inhabitants, reckoning five blacks for three whites—The states do
not differ as to the age or moral characters of the electors or elected, nor
materially as to their property.

Pennsylvania has lodged all her legislative powers in a single branch,
and Georgia has done the same; the other eleven states have each in their
legislatures a second or senatorial branch. In forming this they have combined
various principles, and aimed at several checks and balances. It is amazing to
see how ingenuity has worked in the several states to fix a barrier against
popular instability. In Massachusetts the senators are apportioned on districts
according to the taxes they pay, nearly according to property. In Connecticut
the freemen, in September, vote for twenty counsellers, and return the names of
those voted for in the several towns; the legislature takes the twenty who have
the most votes, and gives them to the people, who, in April, chuse twelve of
them, who, with the governor and deputy governor, form the senatorial branch.
In Maryland the senators are chosen by two electors from each county; these
electors are chosen by the freemen, and qualified as the members in the
democratic branch are: In these two cases checks are aimed at in the mode of
election. Several states have taken into view the periods of service, age,
property, &c. In South-Carolina a senator is elected for two years, in
Delaware three, and in New-York and Virginia four, in Maryland five, and in the
other states for one. In New-York and Virginia one-fourth part go out yearly.
In Virginia a senator must be twenty-five years old, in South-Carolina thirty.
In New-York the electors must each have a freehold worth 250 dollars, in
North-Carolina a freehold of fifty acres of land; in the other states the
electors of senators are qualified as electors of representatives are. In
Massachusetts a senator must have a freehold in his own right worth 1000
dollars, or any estate worth 2000, in New-Jersey any estate worth 2666, in
South-Carolina worth 1300 dollars, in North-Carolina 300 acres of land in fee,
&c. The numbers of senators in each state are from ten to thirty-one, about
160 in the eleven states, about one to 14000 inhabitants.

Two states, Massachusetts and New-York, have each introduced into their
legislatures a third, but incomplete branch. In the former, the governor may
negative any law not supported by two-thirds of the senators, and two-thirds of
the representatives: in the latter, the governor, chancellor, and judges of the
supreme court may do the same.

Each state has a single executive branch. In the five eastern states the
people at large elect their governors; in the other states the legislatures
elect them. In South Carolina the governor is elected once in two years; in
New-York and Delaware once in three, and in the other states annually. The
governor of New-York has no executive council, the other governors have. In
several states the governor has a vote in the senatorial branch—the
governors have similar powers in some instances, and quite dissimilar ones in
others. The number of executive counsellers in the states are from five to
twelve. In the four eastern states, New-Jersey, Pennsylvania, and Georgia, they
are of the men returned legislators by the people. In Pennsylvania the
counsellers are chosen triennially, in Delaware every fourth year, in Virginia
every three years, in South-Carolina biennially, and in the other states
yearly.

Each state has a judicial branch; each common law courts, superior and
inferior; some chancery and admiralty courts: The courts in general sit in
different places, in order to accommodate the citizens. The trial by jury is
had in all the common law courts, and in some of the admiralty courts. The
democratic freemen principally form the juries; men destitute of property, of
character, or under age, are excluded as in elections. Some of the judges are
during good behaviour, and some appointed for a year, and some for years; and
all are dependant on the legislatures for their salaries—Particulars
respecting this department are too many to be noticed here.