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

XVIII.

January 25, 1788.

Dear sir,

I am persuaded, a federal head never was formed, that possessed half the
powers which it could carry into full effect, altogether independently of the
state or local governments, as the one, the convention has proposed, will
possess. Should the state legislatures never meet, except merely for chusing
federal senators and appointing electors, once in four and six years, the
federal head may go on for ages to make all laws relative to the following
subjects, and by its own courts, officers, and provisions, carry them into full
effect, and to any extent it may deem for the general welfare; that is, for
raising taxes, borrowing and coining monies, and for applying them
— for forming and governing armies and navies, and for
directing their operations—for regulating commerce with foreign nations,
and among the several states, and with the Indian tribes—for regulating
bankruptcies, weights and measures, post-offices and post-roads, and
captures on land and water—for establishing a uniform rule of
naturalization, and for promoting the progress of science and useful arts—for defining and punishing piracies and felonies committed on the high
seas, the offences of counterfeiting the securities and current coin of the
United States, and offences against the law of nations, and for regulating all
maritime concerns—for organizing, arming and disciplining
the militia (the respective states training them, and appointing the officers)—for calling them forth when wanted, and for governing them when
in the service of the union—for the sole and exclusive government
of a federal city or town, not exceeding ten miles square, and of places ceded
for forts, magazines, arsenals, dock-yards, and other needful buildings—for granting letters of marque and reprisal, and making war—for
regulating the times, places, and manner of holding elections for
senators and representatives—for making and concluding all treaties, and
carrying them into execution—for judicially deciding all questions
arising on the constitution, laws, and treaties of the union, in law and
equity, and questions arising on state laws also, where ambassadors, other
public ministers, and consuls, where the United States, individual states, or a
state, where citizens of different states, and where foreign states, or
a foreign subject, are parties or party—for impeaching and trying
federal officers—for deciding on elections, and for expelling members,
&c. All these enumerated powers we must examine and contemplate in all
their extent and various branches, and then reflect, that the federal head will
have full power to make all laws whatever respecting them; and for carrying
into full effect all powers vested in the union, in any department, or officers
of it, by the constitution, in order to see the full extent of the federal
powers, which will be supreme, and exercised by that head at pleasure,
conforming to the few limitations mentioned in the constitution. Indeed, I
conceive, it is impossible to see them in their full extent at present: we see
vast undefined powers lodged in a weak organization, but cannot, by the
enquiries of months and years, clearly discern them in all their numerous
branches. These powers in feeble hands, must be tempting objects for ambition
and a love of power and fame.

But, say the advocates, they are all necessary for forming an energetic
federal government; all necessary in the hands of the union, for the common
defence and general welfare. In these great points they appear to me to go from
the end to the means, and from the means to the end, perpetually begging the
question. I think in the course of these letters, I shall sufficiently prove,
that some of these powers need not be lodged in the hands of the union—that others ought to be exercised under better checks, and in part, by the
agency of the states-some I have already considered, some in my mind, are not
liable to objections, and the others, I shall briefly notice in this closing
letter.

The power to controul the military forces of the country, as well as the
revenues of it, requires serious attention. Here again, I must premise, that a
federal republic is a compound system, made up of constituent parts, each
essential to the whole: we must then expect the real friends of such a system
will always be very anxious for the security and preservation of each part, and
to this end, that each constitutionally possess its natural portion of power
and influence—and that it will constantly be an object of concern to
them, to see one part armed at all points by the constitution, and in a manner
destructive in the end, even of its own existence, and the others left
constitutionally defenceless.

The military forces of a free country may be considered under three
general descriptions—1. The militia. 2. the navy—and 3. the
regular troops—and the whole ought ever to be, and understood to be, in
strict subordination to the civil authority; and that regular troops, and
select corps, ought not to be kept up without evident necessity. Stipulations
in the constitution to this effect, are perhaps, too general to be of much
service, except merely to impress on the minds of the people and soldiery, that
the military ought ever to be subject to the civil authority, &c. But
particular attention, and many more definite stipulations, are highly necessary
to render the military safe, and yet useful in a free government; and in a
federal republic, where the people meet in distinct assemblies, many
stipulations are necessary to keep a part from transgressing, which would be
unnecessary checks against the whole met in one legislature, in one entire
government.—A militia, when properly formed, are
in fact the people themselves, and render regular troops in a great
measure unnecessary. The powers to form and arm the militia, to appoint their
officers, and to command their services, are very important; nor ought they in
a confederated republic to be lodged, solely, in any one member of the
government. First, the constitution ought to secure a genuine and guard against
a select militia, by providing that the militia shall always be kept well
organized, armed, and disciplined, and include, according to the past and
general usuage of the states, all men capable of bearing arms; and that all
regulations tending to render this general militia useless and defenceless, by
establishing select corps of militia, or distinct bodies of military men, not
having permanent interests and attachments in the community to be avoided. I am
persuaded, I need not multiply words to convince you of the value and solidity
of this principle, as it respects general liberty, and the duration of a free
and mild government: having this principle well fixed by the constitution, then
the federal head may prescribe a general uniform plan, on which the respective
states shall form and train the militia, appoint their officers and solely
manage them, except when called into the service of the union, and when called
into that service, they may be commanded and governed by the union. This
arrangement combines energy and safety in it; it places the sword in the hands
of the solid interest of the community, and not in the hands of men destitute
of property, of principle, or of attachment to the society and government, who
often form the select corps of peace or ordinary establishments: by it, the
militia are the people, immediately under the management of the state
governments, but on a uniform federal plan, and called into the service,
command, and government of the union, when necessary for the common defence and
general tranquility. But, say gentlemen, the general militia are for the most
part employed at home in their private concerns, cannot well be called out, or
be depended upon; that we must have a select militia; that is, as I understand
it, particular corps or bodies of young men, and of men who have but little to
do at home, particularly armed and disciplined in some measure, at the public
expence, and always ready to take the field. These corps, not much unlike
regular troops, will ever produce an inattention to the general militia; and
the consequence has ever been, and always must be, that the substantial men,
having families and property, will generally be without arms, without knowing
the use of them, and defenceless; whereas, to preserve liberty,
it is essential that the whole body of the people always
possess arms, and be taught alike, especially when young, how to use
them; nor does it follow from this, that all promiscuously must go into
actual service on every occasion. The mind that aims at a select militia, must
be influenced by a truly anti-republican principle; and when we see many men
disposed to practice upon it, whenever they can prevail, no wonder true
republicans are for carefully guarding against it. As a farther check, it may
be proper to add, that the militia of any state shall not remain in the service
of the union, beyond a given period, without the express consent of the state
legislature.

As to the navy, I do not see that it can have any connection with the
local governments. The want of employment for it, and the want of monies in the
hands of the union, must be its proper limitation. The laws for building or
increasing it, as all the important laws mentioned in a former letter, touching
military and money matters, may be checked by requiring the attendance of a
large proportion of the representatives, and the consent of a large proportion
of those present, to pass them as before mentioned.

By art. 1. sect. 8. “Congress shall have power to provide for
organizing
, arming, and disciplining the militia”: power to provide
for
—does this imply any more than power to prescribe a general
uniform plan? And must not the respective states pass laws (but in conformity
to the plan) for forming and training the militia.

In the present state of mankind, and of conducting war, the government
of every nation must have power to raise and keep up regular troops: the
question is, how shall this power be lodged? In an entire government, as in
Great-Britain, where the people assemble by their representatives in one
legislature, there is no difficulty, it is of course properly lodged in that
legislature: But in a confederated republic, where the organization consists of
a federal head, and local governments, there is no one part in which it can be
solely, and safely lodged. By art. 1. sect. 8. “congress shall have power to
raise and support armies,” &c. By art. 1. sect. 10. “no state, without the
consent of congress, shall keep troops, or ships of war, in time of peace.” It
seems fit the union should direct the raising of troops, and the union may do
it in two ways; by requisitions on the states, or by direct taxes—the
first is most conformable to the federal plan, and safest; and it may be
improved, by giving the union power, by its own laws and officers, to raise the
states quota that may neglect, and to charge it with the expence; and by giving
a fixed quorum of the state legislatures power to disapprove the requisition.
There would be less danger in this power to raise troops, could the state
governments keep a proper controul over the purse and over the militia; but
after all the precautions we can take, without evidently fettering the union
too much, we must give a large accumulation of powers to it, in these and other
respects. There is one check, which, I think, may be added with great propriety—that is, no land forces shall be kept up, but by legislative acts
annually passed by congress, and no appropriation of monies for their support
shall be for a longer term than one year. This is the constitutional practice
in Great-Britain, and the reasons for such checks in the United States appear
to be much stronger. We may also require that these acts be passed by a special
majority, as before mentioned. There is another mode still more guarded, and
which seems to be founded in the true spirit of a federal system: it seems
proper to divide those powers we can with safety, lodge them in no one member
of the government alone; yet substantially to preserve their use, and to ensure
duration to the government, by modifying the exercise of them—it is to
empower congress to raise troops by direct levies, not exceeding a given
number, say 2000 in time of peace, and 12,000 in a time of war, and for such
further troops as may be wanted, to raise them by requisitions qualified as
before mentioned. By the above recited clause no state shall keep troops,
&c. in time of peace—this clearly implies, it may do it in time of
war: this must be on the principle, that the union cannot defend all parts of
the republic, and suggests an idea very repugnant to the general tendency of
the system proposed, which is to disarm the state governments: a state in a
long war may collect forces sufficient to take the field against the
neighbouring states. This clause was copied from the confederation, in which it
was of more importance than in the plan proposed, because under this the
separate states, probably, will have but small revenues.

By article 1. section 8. congress shall have power to establish uniform
laws on the subject of bankruptcies, throughout the United States. It is to be
observed, that the separate states have ever been in possession of the power,
and in the use of it, of making bankrupt laws, militia laws, and laws in some
other cases, respecting which, the new constitution, when adopted, will give
the union power to legislate, &c.—but no words are used by the
constitution to exclude the jurisdiction of the several states, and whether
they will be excluded or not, or whether they and the union will have
concurrent jurisdiction or not, must be determined by inference; and from the
nature of the subject; if the power, for instance, to make uniform laws on the
subject of bankruptcies, is in its nature indivisible, or incapable of being
exercised by two legislatures independently, or by one in aid of the other,
then the states are excluded, and cannot legislate at all on the subject, even
though the union should neglect or find it impracticable to establish uniform
bankrupt laws. How far the union will find it practicable to do this, time only
can fully determine. When we consider the extent of the country, and the very
different ideas of the different parts in it, respecting credit, and the mode
of making men’s property liable for paying their debts, we may, I think, with
some degree of certainty, conclude that the union never will be able to
establish such laws; but if practicable, it does not appear to me, on further
reflection, that the union ought to have the power; it does not appear to me to
be a power properly incidental to a federal head, and, I believe, no one ever
possessed it; it is a power that will immediately and extensively interfere
with the internal police of the separate states, especially with their
administering justice among their own citizens. By giving this power to the
union, we greatly extend the jurisdiction of the federal judiciary, as all
questions arising on bankrupt laws, being laws of the union, even between
citizens of the same state, may be tried in the federal courts; and I think it
may be shewn, that by the help of these laws, actions between citizens of
different states, and the laws of the federal city, aided by no overstrained
judicial fictions, almost all civil causes may be drawn into those courts. We
must be sensible how cautious we ought to be in extending unnecessarily the
jurisdiction of those courts for reasons I need not repeat. This article of
power too, will considerably increase, in the hands of the union, an
accumulation of powers, some of a federal and some of a unfederal nature, too
large without it.

The constitution provides, that congress shall have the sole and
exclusive government of what is called the federal city, a place not exceeding
ten miles square, and of all places ceded for forts, dock-yards, &c. I
believe this is a novel kind of provision in a federal republic; it is
repugnant to the spirit of such a government, and must be founded in an
apprehension of a hostile disposition between the federal head and the state
governments; and it is not improbable, that the sudden retreat of congress from
Philadelphia, first gave rise to it.—With this apprehension, we provide,
the government of the union shall have secluded places, cities, and castles of
defence, which no state laws whatever shall invade. When we attentively examine
this provision in all its consequences, it opens to view scenes almost without
bounds. A federal, or rather a national city, ten miles square, containing a
hundred square miles, is about four times as large as London; and for forts,
magazines, arsenals, dock-yards, and other needful buildings, congress may
possess a number of places or towns in each state. It is true, congress cannot
have them unless the state legislatures cede them; but when once ceded, they
never can be recovered, and though the general temper of the legislatures may
be averse to such cessions, yet many opportunities and advantages may be taken
of particular times and circumstances of complying assemblies, and of
particular parties, to obtain them. It is not improbable, that some
considerable towns or places, in some intemperate moments, or influenced by
anti-republican principles, will petition to be ceded for the purposes
mentioned in the provision. There are men, and even towns, in the best
republics, which are often fond of withdrawing from the government of them,
whenever occasion shall present. The case is still stronger; if the provision
in question holds out allurements to attempt to withdraw, the people of a state
must ever be subject to state as well as federal taxes; but the federal city
and places will be subject only to the latter, and to them by no fixed
proportion; nor of the taxes raised in them, can the separate states demand any
account of congress.—These doors opened for withdrawing from the state
governments entirely, may, on other accounts, be very alluring and pleasing to
those anti-republican men who prefer a place under the wings of courts.

If a federal town be necessary for the residence of congress and the
public officers, it ought to be a small one, and the government of it fixed on
republican and common law principles, carefully enumerated and established by
the constitution. It is true, the states, when they shall cede places, may
stipulate, that the laws and government of congress in them, shall always be
formed on such principles; but it is easy to discern, that the stipulations of
a state, or of the inhabitants of the place ceded, can be of but little avail
against the power and gradual encroachments of the union. The principles ought
to be established by the federal constitution, to which all the states are
parties; but in no event can there be any need of so large a city and places
for forts, &c. totally exempted from the laws and jurisdictions of the
state governments. If I understand the constitution, the laws of congress,
constitutionally made, will have complete and supreme jurisdiction to all
federal purposes, on every inch of ground in the United States, and exclusive
jurisdiction on the high seas, and this by the highest authority, the consent
of the people. Suppose ten acres at West-Point shall be used as a fort of the
union, or a sea port town as a dock-yard, the laws of the union in those places
respecting the navy, forces of the union, and all federal objects, must
prevail, be noticed by all judges and officers, and executed accordingly: and I
can discern no one reason for excluding from these places, the operation of
state laws, as to mere state purposes; for instance, for the collection of
state taxes in them, recovering debts, deciding questions of property arising
within them on state laws, punishing, by state laws, theft, trespasses, and
offences committed in them by mere citizens against the state laws.

The city, and all the places in which the union shall have this
exclusive jurisdiction, will be immediately under one entire government, that
of the federal head; and be no part of any state, and consequently no part of
the United States. The inhabitants of the federal city and places, will be as
much exempt from the laws and controul of the state governments, as the people
of Canada or Nova Scotia will be. Neither the laws of the states respecting
taxes, the militia, crimes or property, will extend to them; nor is there a
single stipulation in the constitution, that the inhabitants of this city, and
these places, shall be governed by laws founded on principles of freedom. All
questions, civil and criminal, arising on the laws of these places, which must
be the laws of congress, must be decided in the federal courts; and also, all
questions that may, by such judicial fictions as these courts may consider
reasonable, be supposed to arise within this city, or any of these places, may
be brought into these courts; and by a very common legal fiction, any personal
contract may be supposed to have been made in any place. A contract made in
Georgia may be supposed to have been made in the federal city, in Pennsylvania;
the courts will admit the fiction, and not in these cases, make it a serious
question, where it was in fact made. Every suit in which an inhabitant of a
federal district may be a party, of course may be instituted in the federal
courts—also, every suit in which it may be alledged, and not denied,
that a party in it is an inhabitant of such a district—also, every suit
to which a foreign state or subject, the union, a state, citizens of different
states, in fact, or by reasonable legal fictions, may be a party or parties:
And thus, by means of bankrupt laws, federal districts, &c. almost all
judicial business, I apprehend may be carried into the federal courts, without
essentially departing from the usual course of judicial proceedings. The courts
in Great Britain have acquired their powers, and extended, very greatly, their
jurisdictions by such fictions and suppositions as I have mentioned. The
constitution, in these points, certainly involves in it principles, and almost
hidden cases, which may unfold, and in time exhibit consequences we hardly
think of. The power of naturalization, when viewed in connection with the
judicial powers and cases, is, in my mind, of very doubtful extent. By the
constitution itself, the citizens of each state will be naturalized citizens of
every state, to the general purposes of instituting suits, claiming the
benefits of the laws, &c. And in order to give the federal courts
jurisdiction of an action, between citizens of the same state, in common
acceptation, may not a court allow the plaintiff to say, he is a citizen of one
state, and the defendant a citizen of another, without carrying legal fictions
so far, by any means, as they have been carried by the courts of King’s Bench
and Exchequer, in order to bring causes within their cognizance—Further,
the federal city and districts, will be totally distinct from any state, and a
citizen of a state will not of course be a subject of any of them; and to avail
himself of the privileges and immunities of them, must he not be naturalized by
congress in them? and may not congress make any proportion of the citizens of
the states naturalized subjects of the federal city and districts, and thereby
entitle them to sue or defend, in all cases, in the federal courts? I have my
doubts, and many sensible men, I find, have their doubts, on these points; and
we ought to observe, they must be settled in the courts of law, by their rules,
distinctions, and fictions. To avoid many of these intricacies and
difficulties, and to avoid the undue and unnecessary extension of the federal
judicial powers, it appears to me, that no federal districts ought to be
allowed, and no federal city or town, except perhaps a small town, in which the
government shall be republican, but in which congress shall have no
jurisdiction over the inhabitants, but in common with the other inhabitants of
the states. Can the union want, in such a town, any thing more than a right to
the soil on which it may set its buildings, and extensive jurisdiction over the
federal buildings, and property, its own members, officers, and servants in it?
As to all federal objects, the union will have complete jurisdiction over them,
of course any where, and every where. I still think, that no actions ought to
be allowed to be brought in the federal courts, between citizens of different
states, at least, unless the cause be of very considerable importance: that no
action against a state government, by any citizen or foreigner, ought to be
allowed, and no action, in which a foreign subject is party, at least, unless
it be of very considerable importance, ought to be instituted in the federal
courts—I confess, I can see no reason whatever, for a foreigner, or for
citizens of different states, carrying sixpenny causes into the federal courts;
I think the state courts will be found by experience, to be bottomed on better
principles, and to administer justice better than the federal courts.

The difficulties and dangers I have supposed, will result from so large
a federal city, and federal districts, from the extension of the federal
judicial powers, &c. are not, I conceive, merely possible, but probable. I
think, pernicious political consequences will follow from them, and from the
federal city especially, for very obvious reasons, a few of which I will
mention.

We must observe, that the citizens of a state will be subject to state
as well as federal taxes, and the inhabitants of the federal city and
districts, only to such taxes as congress may lay—We are not to suppose
all our people are attached to free government, and the principles of the
common law, but that many thousands of them will prefer a city governed, not on
republican principles—This city, and the government of it, must
indubitably take their tone from the characters of the men, who from the nature
of its situation and institution, must collect there. This city will not be
established for productive labour, for mercantile, or mechanic industry; but
for the residence of government, its officers and attendants. If hereafter it
should ever become a place of trade and industry, in the early periods of its
existence, when its laws and government must receive their fixed tone, it must
be a mere court, with its appendages, the executive, congress, the law courts,
gentlemen of fortune and pleasure, with all the officers, attendants, suitors,
expectants and dependants on the whole, however brilliant and honourable this
collection may be, if we expect it will have any sincere attachments to simple
and frugal republicanism, to that liberty and mild government, which is dear to
the laborious part of a free people, we most assuredly deceive ourselves. This
early collection will draw to it men from all parts of the country, of a like
political description: we see them looking towards the place already.

Such a city, or town, containing a hundred square miles, must soon be
the great, the visible, and dazzling centre, the mistress of fashions, and the
fountain of politics. There may be a free or shackled press in this city, and
the streams which may issue from it may overflow the country, and they will be
poisonous or pure, as the fountain may be corrupt or not. But not to dwell on a
subject that must give pain to the virtuous friends of freedom, I will only
add, can a free and enlightened people create a common head so extensive, so
prone to corruption and slavery, as this city probably will be, when they have
it in their power to form one pure and chaste, frugal and republican.

Under the confederation congress has no power whereby to govern its own
officers and servant[s]; a federal town, in which congress might have special
jurisdiction, might be expedient; but under the new constitution, without a
federal town, congress will have all necessary powers of course over its
officers and servants; indeed it will have a complete system of powers to all
the federal purposes mentioned in the constitution; so that the reason for a
federal town under the confederation, will by no means exist under the
constitution.—Even if a trial by jury should be admitted in the federal
city, what man, with any state attachments or republican virtue about him, will
submit to be tried by a jury of it.

I might observe more particularly upon several other parts of the
constitution proposed; but it has been uniformly my object in examining a
subject so extensive, and difficult in many parts to be illustrated, to avoid
unimportant things, and not to dwell upon points not very material. The rule
for apportioning requisitions on the states, having some time since been agreed
to by eleven states, I have viewed as settled. The stipulation that congress,
after twenty one years may prohibit the importation of slaves, is a point
gained, if not so favourable as could be wished for. As monopolies in trade
perhaps, can in no case be useful, it might not be amiss to provide expressly
against them. I wish the power to repri[e]ve and pardon was more cautiously
lodged, and under some limitations. I do not see why congress should be allowed
to consent that a person may accept a present, office, or title of a foreign
prince, &c. As to the state governments, as well as the federal, are
essential parts of the system, why should not the oath taken by the officers be
expressly to support the whole? As to debts due to and from the union, I think
the constitution intends, on examining art. 4. sect. 8. and art. 6. that they
shall stand on the same ground under the constitution as under the
confederation. In the article respecting amendments, it is stipulated that no
state shall ever be deprived of its equal vote in the senate without its
consent; and that alterations may be made by the consent of three-fourths of
the states. Stipulations to bind the majority of the people may serve one
purpose, to prevent frequent motions for change; but these attempts to bind the
majority, generally give occasion for breach of contract. The states all agreed
about seven years ago, that the confederation should remain unaltered, unless
every state should agree to alterations: but we now see it agreed by the
convention, and four states, that the old confederacy shall be destroyed, and a
new one, of nine states, be erected, if nine only shall come in. Had we agreed,
that a majority should alter the confederation, a majority’s agreeing would
have bound the rest: but now we must break the old league, unless all the
states agree to alter, or not proceed with adopting the constitution. Whether
the adoption by nine states will not produce a nearly equal and dangerous
division of the people for and against the constitution—whether the
circumstances of the country were such as to justify the hazarding a
probability of such a situation, I shall not undertake to determine. I shall
leave it to be determined hereafter, whether nine states, under a new federal
compact, can claim the benefits of any treaties made with a confederation of
thirteen, under a distinct compact and form of existence—whether the new
confederacy can recover debts due to the old confederacy, or the arrears of
taxes due from the states excluded.

It has been well observed, that our country is extensive, and has no
external enemies to press the parts together: that, therefore, their union must
depend on strong internal ties. I differ with the gentlemen who make these
observations only in this, they hold the ties ought to be strengthened by a
considerable degree of internal consolidation; and my object is to form them
and strengthen them, on pure federal principles. Whatever may be the fate of
many valuable and necessary amendments in the constitution proposed, the ample
discussion and respectable opposition it will receive, will have a good effect—they will operate to produce a mild and prudent administration, and to
put the wheels of the whole system in motion on proper principles—they
will evince, that true republican principles and attachments are still alive
and formidable in this country. These, in view, I believe, even men quite
disposed to make a bad use of the system, will long hesitate before they will
resolve to do it. A majority from a view of our situation, and influenced by
many considerations, may acquiese in the adoption of this constitution; but, it
is evident, that a very great majority of the people of the United States think
it, in many parts, an unnecessary and unadviseable departure from true
republican and federal principles.