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

XVI.

January 20, 1788.

Dear sir,

Having gone through with the organization of the government, I shall now
proceed to examine more particularly those clauses which respect its powers. I
shall begin with those articles and stipulations which are necessary for
accurately ascertaining the extent of powers, and what is given, and for
guarding, limiting, and restraining them in their exercise. We often find,
these articles and stipulations placed in bills of rights; but they may as well
be incorporated in the body of the constitution, as selected and placed by
themselves. The constitution, or whole social compact, is but one instrument,
no more or less, than a certain number of articles or stipulations agreed to by
the people, whether it consists of articles, sections, chapters, bills of
rights, or parts of any other denomination, cannot be material. Many needless
observations, and idle distinctions, in my opinion, have been made respecting a
bill of rights. On the one hand, it seems to be considered as a necessary
distinct limb of the constitution, and as containing a certain number of very
valuable articles, which are applicable to all societies; and, on the other, as
useless, especially in a federal government, possessing only enumerated power—nay, dangerous, as individual rights are numerous, and not easy to be
enumerated in a bill of rights, and from articles, or stipulations, securing
some of them, it may be inferred, that others not mentioned are surrendered.
There appears to me to be general indefinite propositions without much meaning—and the man who first advanced those of the latter description, in the
present case, signed the federal constitution, which directly contradicts him.
The supreme power is undoubtedly in the people, and it is a principle well
established in my mind, that they reserve all powers not expressly delegated by
them to those who govern; this is as true in forming a state as in forming a
federal government. There is no possible distinction but this founded merely in
the different modes of proceeding which take place in some cases. In forming a
state constitution, under which to manage not only the great but the little
concerns of a community: the powers to be possessed by the government are often
too numerous to be enumerated; the people to adopt the shortest way often give
general powers, indeed all powers, to the government, in some general words,
and then, by a particular enumeration, take back, or rather say they however
reserve certain rights as sacred, and which no laws shall be made to violate:
hence the idea that all powers are given which are not reserved; but in forming
a federal constitution, which ex vi termine, supposes state governments
existing, and which is only to manage a few great national concerns, we often
find it easier to enumerate particularly the powers to be delegated to the
federal head, than to enumerate particularly the individual rights to be
reserved; and the principle will operate in its full force, when we carefully
adhere to it. When we particularly enumerate the powers given, we ought either
carefully to enumerate the rights reserved, or be totally silent about them; we
must either particularly enumerate both, or else suppose the particular
enumeration of the powers given adequately draws the line between them and the
rights reserved, particularly to enumerate the former and not the latter, I
think most advisable: however, as men appear generally to have their doubts
about these silent reservations, we might advantageously enumerate the powers
given, and then in general words, according to the mode adopted in the 2d art.
of the confederation, declare all powers, rights and privileges, are reserved,
which are not explicitly and expressly given up. People, and very wisely too,
like to be express and explicit about their essential rights, and not to be
forced to claim them on the precarious and unascertained tenure of inferences
and general principles, knowing that in any controversy between them and their
rulers, concerning those rights, disputes may be endless, and nothing certain:—But admitting, on the general principle, that all rights are reserved of
course, which are not expressly surrendered, the people could with sufficient
certainty assert their rights on all occasions, and establish them with ease,
still there are infinite advantages in particularly enumerating many of the
most essential rights reserved in all cases; and as to the less important ones,
we may declare in general terms, that all not expressly surrendered are
reserved. We do not by declarations change the nature of things, or create new
truths, but we give existence, or at least establish in the minds of the people
truths and principles which they might never otherwise have thought of, or soon
forgot. If a nation means its systems, religious or political, shall have
duration, it ought to recognize the leading principles of them in the front
page of every family book. What is the usefulness of a truth in theory, unless
it exists constantly in the minds of the people, and has their assent:—we discern certain rights, as the freedom of the press, and the trial by jury,
&c. which the people of England and of America of course believe to be
sacred, and essential to their political happiness, and this belief in them is
the result of ideas at first suggested to them by a few able men, and of
subsequent experience; while the people of some other countries hear these
rights mentioned with the utmost indifference; they think the privilege of
existing at the will of a despot much preferable to them. Why this difference
amongst beings every way formed alike. The reason of the difference is obvious—it is the effect of education, a series of notions impressed upon the
minds of the people by examples, precepts and declarations. When the people of
England got together, at the time they formed Magna Charta, they did not
consider it sufficient, that they were indisputably entitled to certain natural
and unalienable rights, not depending on silent titles, they, by a declaratory
act, expressly recognized them, and explicitly declared to all the world, that
they were entitled to enjoy those rights; they made an instrument in writing,
and enumerated those they then thought essential, or in danger, and this wise
men saw was not sufficient; and therefore, that the people might not forget
these rights, and gradually become prepared for arbitrary government, their
discerning and honest leaders caused this instrument to be confirmed near forty
times, and to be read twice a year in public places, not that it would lose its
validity without such confirmations, but to fix the contents of it in the minds
of the people, as they successively come upon the stage.—Men, in some
countries do not remain free, merely because they are entitled to natural and
unalienable rights; men in all countries are entitled to them, not because
their ancestors once got together and enumerated them on paper, but because, by
repeated negociations and declarations, all parties are brought to realize
them, and of course to believe them to be sacred. Were it necessary, I might
shew the wisdom of our past conduct, as a people in not merely comforting
ourselves that we were entitled to freedom, but in constantly keeping in view,
in addresses, bills of rights, in news-papers, &c. the particular
principles on which our freedom must always depend.

It is not merely in this point of view, that I urge the engrafting in
the constitution additional declaratory articles. The distinction, in itself
just, that all powers not given are reserved, is in effect destroyed by this
very constitution, as I shall particularly demonstrate—and even
independent of this, the people, by adopting the constitution, give many
general undefined powers to congress, in the constitutional exercise of which,
the rights in question may be effected. Gentlemen who oppose a federal bill of
rights, or further declaratory articles, seem to view the subject in a very
narrow imperfect manner. These have for their objects, not only the enumeration
of the rights reserved, but principally to explain the general powers delegated
in certain material points, and to restrain those who exercise them by fixed
known boundaries. Many explanations and restrictions necessary and useful,
would be much less so, were the people at large all well and fully acquainted
with the principles and affairs of government. There appears to be in the
constitution, a studied brevity, and it may also be probable, that several
explanatory articles were omitted from a circumstance very common. What we have
long and early understood ourselves in the common concerns of the community, we
are apt to suppose is understood by others, and need not be expressed; and it
is not unnatural or uncommon for the ablest men most frequently to make this
mistake. To make declaratory articles unnecessary in an instrument of
government, two circumstances must exist; the rights reserved must be
indisputably so, and in their nature defined; the powers delegated to the
government, must be precisely defined by the words that convey them, and
clearly be of such extent and nature as that, by no reasonable construction,
they can be made to invade the rights and prerogatives intended to be left in
the people.

The first point urged, is, that all power is reserved not expressly
given, that particular enumerated powers only are given, that all others are
not given, but reserved, and that it is needless to attempt to restrain
congress in the exercise of powers they possess not. This reasoning is logical,
but of very little importance in the common affairs of men; but the
constitution does not appear to respect it even in any view. To prove this, I
might cite several clauses in it. I shall only remark on two or three. By
article 1, section 9, “No title of nobility shall be granted by congress.” Was
this clause omitted, what power would congress have to make titles of nobility?
in what part of the constitution would they find it? The answer must be, that
congress would have no such power—that the people, by adopting the
constitution, will not part with it. Why then by a negative clause, restrain
congress from doing what it would have no power to do? This clause, then, must
have no meaning, or imply, that were it omitted, congress would have the power
in question, either upon the principle that some general words in the
constitution may be so construed as to give it, or on the principle that
congress possess the powers not expressly reserved. But this clause was in the
confederation, and is said to be introduced into the constitution from very
great caution. Even a cautionary provision implies a doubt, at least, that it
is necessary; and if so in this case, clearly it is also alike necessary in all
similar ones. The fact appears to be, that the people in forming the
confederation, and the convention, in this instance, acted, naturally, they did
not leave the point to be settled by general principles and logical inferences;
but they settle the point in a few words, and all who read them at once
understand them.

The trial by jury in criminal as well as in civil causes, has long been
considered as one of our fundamental rights, and has been repeatedly recognized
and confirmed by most of the state conventions. But the constitution expressly
establishes this trial in criminal, and wholly omits it in civil causes. The
jury trial in criminal causes, and the benefit of the writ of habeas corpus,
are already as effectually established as any of the fundamental or essential
rights of the people in the United States. This being the case, why in adopting
a federal constitution do we now establish these, and omit all others, or all
others, at least, with a few exceptions, such as again agreeing there shall be
no ex post facto laws, no titles of nobility, &c. We must consider this
constitution when adopted as the supreme act of the people, and in construing
it hereafter, we and our posterity must strictly adhere to the letter and
spirit of it, and in no instance depart from them: in construing the federal
constitution, it will be not only impracticable, but improper to refer to the
state constitutions. They are entirely distinct instruments and inferior acts:
besides, by the people’s now establishing certain fundamental rights, it is
strongly implied, that they are of opinion, that they would not otherwise be
secured as a part of the federal system, or be regarded in the federal
administration as fundamental. Further, these same rights, being established by
the state constitutions, and secured to the people, our recognizing them now,
implies, that the people thought them insecure by the state establishments, and
extinguished or put afloat by the new arrangement of the social system, unless
re-established.—Further, the people, thus establishing some few rights,
and remaining totally silent about others similarly circumstanced, the
implication indubitably is, that they mean to relinquish the latter, or at
least feel indifferent about them. Rights, therefore, inferred from general
principles of reason, being precarious and hardly ascertainable in the common
affairs of society, and the people, in forming a federal constitution,
explicitly shewing they conceive these rights to be thus circumstanced, and
accordingly proceed to enumerate and establish some of them, the conclusion
will be, that they have established all which they esteem valuable and sacred.
On every principle, then, the people especially having began, ought to go
through enumerating, and establish particularly all the rights of individuals,
which can by any possibility come in question in making and executing federal
laws. I have already observed upon the excellency and importance of the jury
trial in civil as well as in criminal causes, instead of establishing it in
criminal causes only; we ought to establish it generally;—instead of the
clause of forty or fifty words relative to this subject, why not use the
language that has always been used in this country, and say, “the people of the
United States shall always be entitled to the trial by jury.” This would shew
the people still hold the right sacred, and enjoin it upon congress
substantially to preserve the jury trial in all cases, according to the usage
and custom of the country. I have observed before, that it is the jury
trial
we want; the little different appendages and modifications tacked to
it in the different states, are no more than a drop in the ocean: the jury
trial is a solid uniform feature in a free government; it is the substance we
would save, not the little articles of form.

Security against expost facto laws, the trial by jury, and the benefits
of the writ of habeas corpus, are but a part of those inestimable rights the
people of the United States are entitled to, even in judicial proceedings, by
the course of the common law. These may be secured in general words, as in
New-York, the Western Territory, &c. by declaring the people of the United
States shall always be entitled to judicial proceedings according to the course
of the common law, as used and established in the said states. Perhaps it would
be better to enumerate the particular essential rights the people are entitled
to in these proceedings, as has been done in many of the states, and as has
been done in England. In this case, the people may proceed to declare, that no
man shall be held to answer to any offence, till the same be fully described to
him; nor to furnish evidence against himself: that, except in the government of
the army and navy, no person shall be tried for any offence, whereby he may
incur loss of life, or an infamous punishment, until he be first indicted by a
grand jury: that every person shall have a right to produce all proofs that may
be favourable to him, and to meet the witnesses against him face to face: that
every person shall be entitled to obtain right and justice freely and without
delay: that all persons shall have a right to be secure from all unreasonable
searches and seizures of their persons, houses, papers, or possessions; and
that all warrants shall be deemed contrary to this right, if the foundation of
them be not previously supported by oath, and there be not in them a special
designation of persons or objects of search, arrest, or seizure: and that no
person shall be exiled or molested in his person or effects, otherwise than by
the judgment of his peers, or according to the law of the land. A celebrated
writer observes upon this last article, that in itself it may be said to
comprehend the whole end of political society. These rights are not necessarily
reserved, they are established, or enjoyed but in few countries: they are
stipulated rights, almost peculiar to British and American laws. In the
execution of those laws, individuals, by long custom, by magna charta, bills of
rights &c. have become entitled to them. A man, at first, by act of
parliament, became entitled to the benefits of the writ of habeas corpus—men are entitled to these rights and benefits in the judicial proceedings of
our state courts generally: but it will by no means follow, that they will be
entitled to them in the federal courts, and have a right to assert them, unless
secured and established by the constitution or federal laws. We certainly, in
federal processes, might as well claim the benefits of the writ of habeas
corpus, as to claim trial by a jury—the right to have council—to
have witnesses face to face—to be secure against unreasonable search
warrants, &c. was the constitution silent as to the whole of them:—but the establishment of the former, will evince that we could not claim them
without it; and the omission of the latter, implies they are relinquished, or
deemed of no importance. These are rights and benefits individuals acquire by
compact; they must claim them under compacts, or immemorial usage—it is
doubtful, at least, whether they can be claimed under immemorial usage in this
country; and it is, therefore, we generally claim them under compacts, as
charters and constitutions.

The people by adopting the federal constitution, give congress general
powers to institute a distinct and new judiciary, new courts, and to regulate
all proceedings in them, under the eight limitations mentioned in a former
letter; and the further one, that the benefits of the habeas corpus act shall
be enjoyed by individuals. Thus general powers being given to institute courts,
and regulate their proceedings, with no provision for securing the rights
principally in question, may not congress so exercise those powers, and
constitutionally too, as to destroy those rights? clearly, in my opinion, they
are not in any degree secured. But, admitting the case is only doubtful, would
it not be prudent and wise to secure them and remove all doubts, since all
agree the people ought to enjoy these valuable rights, a very few men excepted,
who seem to be rather of opinion that there is little or nothing in them? Were
it necessary I might add many observations to shew their value and political
importance.

The constitution will give congress general powers to raise and support
armies. General powers carry with them incidental ones, and the means necessary
to the end. In the exercise of these powers, is there any provision in the
constitution to prevent the quartering of soldiers on the inhabitants? you will
answer, there is not. This may sometimes be deemed a necessary measure in the
support of armies; on what principle can the people claim the right to be
exempt from this burden? they will urge, perhaps, the practice of the country,
and the provisions made in some of the state constitutions—they will be
answered, that their claim thus to be exempt, is not founded in nature, but
only in custom and opinion, or at best, in stipulations in some of the state
constitutions, which are local, and inferior in their operation, and can have
no controul over the general government—that they had adopted a federal
constitution—had noticed several rights, but had been totally silent
about this exemption—that they had given general powers relative to the
subject, which, in their operation, regularly destroyed the claim. Though it is
not to be presumed, that we are in any immediate danger from this quarter, yet
it is fit and proper to establish, beyond dispute, those rights which are
particularly valuable to individuals, and essential to the permanency and
duration of free government. An excellent writer observes, that the English,
always in possession of their freedom, are frequently unmindful of the value of
it: we, at this period, do not seem to be so well off, having, in some
instances abused ours; many of us are quite disposed to barter it away for what
we call energy, coercion, and some other terms we use as vaguely as that of
liberty—There is often as great a rage for change and novelty in
politics, as in amusements and fashions.

All parties apparently agree, that the freedom of the press is a
fundamental right, and ought not to be restrained by any taxes, duties, or in
any manner whatever. Why should not the people, in adopting a federal
constitution, declare this, even if there are only doubts about it. But, say
the advocates, all powers not given are reserved.—true; but the great
question is, are not powers given, in the excercise of which this right may be
destroyed? The people’s or the printers claim to a free press, is founded on
the fundamental laws, that is, compacts, and state constitutions, made by the
people. The people, who can annihilate or alter those constitutions, can
annihilate or limit this right. This may be done by giving general powers, as
well as by using particular words. No right claimed under a state constitution,
will avail against a law of the union, made in pursuance of the federal
constitution: therefore the question is, what laws will congress have a right
to make by the constitution of the union, and particularly touching the press?
By art. 1. sect. 8. congress will have power to lay and collect taxes, duties,
imposts and excise. By this congress will clearly have power to lay and collect
all kind of taxes whatever—taxes on houses, lands, polls, industry,
merchandize, &c.—taxes on deeds, bonds, and all written instruments—on writs, pleas, and all judicial proceedings, on licences, naval
officers papers, &c. on newspapers, advertisements, &c. and to require
bonds of the naval officers, clerks, printers, &c. to account for the taxes
that may become due on papers that go through their hands. Printing, like all
other business, must cease when taxed beyond its profits; and it appears to me,
that a power to tax the press at discretion, is a power to destroy or restrain
the freedom of it. There may be other powers given, in the exercise of which
this freedom may be effected; and certainly it is of too much importance to be
left thus liable to be taxed, and constantly to constructions and inferences. A
free press is the channel of communication as to mercantile and public affairs;
by means of it the people in large countries ascertain each others sentiments;
are enabled to unite, and become formidable to those rulers who adopt improper
measures. Newspapers may sometimes be the vehicles of abuse, and of many things
not true; but these are but small inconveniencies, in my mind, among many
advantages. A celebrated writer, I have several times quoted, speaking in high
terms of the English liberties, says, “lastly the key stone was put to the
arch, by the final establishment of the freedom of the press.” I shall not
dwell longer upon the fundamental rights, to some of which I have attended in
this letter, for the same reasons that these I have mentioned, ought to be
expressly secured, lest in the exercise of general powers given they may be
invaded: it is pretty clear, that some other of less importance, or less in
danger, might with propriety also be secured.

I shall now proceed to examine briefly the powers proposed to be vested
in the several branches of the government, and especially the mode of laying
and collecting internal taxes.