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(October 20, 1787) "Great men are not always wise," they have their seasons of inattention, and their moments of frailty and error, in which it is too evident, they are not wholly exempted from the infirmity of human nature. We ought not therefore implicitly to approve and admire, without examination, every act that proceeds even from the best and wisest of mankind. The proposed new plan of federal government, is undoubtedly the work of some of the ablest and best men in this country; but yet we are not, for that reason only, to believe that it is free from imperfection. The convention themselves inform us that the constitution which they offer to us, is the effect of mutual accommodations and concessions, in which mode it is certain that the best and wisest propositions are not always those which are adopted. Indeed it appears to me that, after all the time which has been spent in this business, the convention at the close of their session have been glad to lay hold of any system in which a majority could possibly concur, so as not to separate without doing any thing; and that the model of government now before us, is at least the work of haste and inattention. To be convinced of this, let us turn again to the sixth article, which I have referred to in the close of my last letter. By this article, not only the "proposed constitution and laws of the United States, which shall be made in pursuance thereof;" but also "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 constitutions or laws of any state to the contrary notwithstanding." - The power of making treaties is vested in the president, with the concurrence of two thirds of the senators present; so that the president and two thirds of the senate have power to make laws in the form of treaties, independent of the legislature itself.1 If Great Britain, for instance, were willing to enter into a treaty with us, upon terms which would be inconsistent with the liberties of the people and destructive of the very being of a Republic, the consent of our president for the time being, and of two thirds of the senators present, even though the senators present should be but a very small part of the senate, will give such a treaty the validity of a law. What power will there be anywhere to prevent this?-None.-Where all power legislative and executive is vested in one man or one body of men, treaties are made by the same authority which makes the laws; but where the legislature is extinct [sic] from the executive, the approbation of the legislature ought to be had, before a treaty should have the force of a law; and even in England the parliament is constantly applied to for their sanction to every treaty which tends to introduce an innovation or the slightest alteration in the laws in being, the law there is not altered by the treaty itself; but by an act of parliament which confirms the treaty, and alters the law so as to accommodate it to the treaty. The King in council has no such power. The only answer which can be made to this objection, which is so obvious, to the power given by the proposed constitution to the executive of making treaties, which shall be the "supreme law of the land," is, that it is not to be supposed they will abuse such power.-But yet we find that men in all ages have abused power, and that it has been the study of patriots and virtuous legislators at all times to restrain power, so as to prevent the abuse of it.-What then ought to be done, it may be asked.-Are treaties to be sent to all the different state legislatures for their approbation? By no means. But no treaty ought to be suffered to alter the law of the land, without the consent of the continental legislatures; the powers of the continental legislatures ought to be exactly defined; and there ought to be a bill of rights firmly established, which neither treaties nor acts of the legislature can alter. Let us however give fair play to the answer which has been attempted to be given to this Objection. The author of the speech tells us, that a bill of rights would have been superfluous and absurd; because "no powers are given to Congress but what are expressly given;" and "that we shall still enjoy those privileges of which we are not divested either by the intention or the act that brought that body into existence.-For instance, the liberty of the press.-What controul can proceed from the federal government to shackle or destroy that sacred palladium of national freedom?"-What controul!- Suppose that an act of the continental legislature should be passed to restrain the liberty of the press;-to appoint licensers of the press in every town in America;-to limit the number of printers;-and to compel them to give security for their good behaviour, from year to year, as the licenses are renewed: If such a law should be once passed, what is there to prevent the execution of it?- By the sixth article of the proposed constitution, this act of the continental legislature is "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."-Suppose a printer should be found hardy enough to contravene such a law when made, and to contest the validity of it.-He is prosecuted we will suppose, in this state-he pleads in his defence, that by the constitution of Pennsylvania, it is declared "that the freedom of the press ought not to be restrained."-What will this avail him? The judge will be obliged to declare that "nothwithstanding the constitution of any state," this act of the continental legislature which restrains the freedom of the press, is "the supreme law; and we must punish you-The bill of rights of Pennsylvania is nothing here. That bill of rights indeed is binding upon the legislature of Pennsylvania, but it is not binding upon the legislature of the continent." Such must be the language and conduct of courts, as soon as the proposed continental constitution shall be adopted. As to the trial by jury, the question may be decided in a few words. Any future Congress sitting under the authority of the proposed new constitution, may, if they chuse, enact that there shall be no more trial by jury, in any of the United States; except in the trial of crimes; and this "SUPREME LAW" will at once annul the trial by jury, in all other cases. The author of the speech supposes that no danger "can possibly ensue, since the proceedings of the supreme court are to be regulated by the Congress, which is a faithful representation of the people; and the oppression - of government is effectually barred; by declaring that in all criminal cases the trial by jury shall be preserved." Let us examine the last clause of this sentence first.-I know that an affected indifference to the trial by jury has been expressed, by some persons high in the confidence of the present ruling party in some of the states;-and yet for my own part I cannot change the opinion I had early formed of the excellence of this mode of trial even in civil causes. On the other hand I have no doubt that whenever a settled plan shall be formed for the extirpation of liberty, the banishment of jury trials will be one of the means adopted for the purpose.- But how is it that "the oppression of government is effectually barred by declaring that in all criminal cases the trial by jury shall be preserved?"-Are there not a thousand civil cases in which the government is a party?-In all actions for penalties, forfeitures and public debts, as well as many others, the government is a party and the whole weight of government is thrown into the scale of the prosecution yet these are all of them civil causes.-These penalties, forfeitures and demands of public debts may be multiplied at the will and pleasure of government.-These modes of harrassing the subject have perhaps been more effectual than direct criminal prosecutions.-4In the reign of Henry the Seventh of England, Empson and Dudley acquired an infamous immortality by these prosecutions for penalties and forfeitures:-Yet all these prosecutions were in the form of civil actions; they are undoubtedly objects highly alluring to a government.-They fill the public coffers and enable government to reward its minions at a cheap rate.-They are a profitable kind of revenge and gratify the officers about a court, who study their own interests more than corporal punishment.-Perhaps they have at all times been more eagerly pursued than mere criminal prosecutions.-Shall trial by jury be taken away in all these cases and shall we still be told that "we are effectually secured against the oppressions of government?" At this rate Judges may sit in the United States, as they did in some instances before the war, without a jury to condemn people's property and extract money from their pockets, to be put into the pockets of the judges themselves who condemn them; and we shall be told that we are safe from the oppression of government. -No, Mr. Printer, we ought not to part with the trial by jury; we ought to guard this and many other privileges by a bill of rights, which cannot be invaded. The reason that is pretended in the speech why such a declaration; as a bill of rights requires, cannot be made for the protection of the trial by jury-"that we cannot with any propriety say 'that the trial by jury shall be as heretofore' " in the case of a federal system of jurisprudence, is almost too contemptible to merit notice.-Is this the only form of words that language could afford on such an important occasion? Or if it were to what did these words refer when adopted in the constitutions of the states?-Plainly sir, to the trial by juries as established by the common law of England in the state of its purity;-That common law for which we contended so eagerly at the time of the revolution, and which now after the interval of a very few years, by the proposed new constitution we seem ready to abandon forever; at least in that article which is the most invaluable part of it; the trial by jury. Still however the great answer to all the objections that are made or can be made to the proposed constitution is this; that there is no danger in trusting the Congress with any power: They will not abuse it. I shall conclude this letter with asking such as are willing to satisfy themselves with this answer only to look back for ten or twelve years and recollect what a mighty change has taken place in the political opinions of many people since that time. If they have forgotten let me beg of them to read over the publications of the years, 1774, 1775, 1776 and 1777. What was the spirit, what was the complaints of those times from Congress down to the smallest meeting of the people? Our present language will be found to give the lie to our former professions; and we have sinned egregiously in wading thro' such an ocean of blood, if we were not well founded in the pretensions upon which we encountered the horrors of a civil war in establishing the revolution.-If such has been the change, as a very short examination will convince any man that has taken place in a few years past, what right have we to trust to the existence of such pure and immaculate virtue in time to come, that we should tamely and implicitly surrender our liberties at discretion into the hands of a government whose constituent members are totally unknown to us. Solomon has told us that no man knows whether a fool or a wise man is to inherit his estate; neither do we know whether honest and virtuous men or knaves and tyrants are to regulate our future councils. Let us then guard ourselves, as far as we can, against the possibility of being enslaved by wicked men, whilst the power of guarding - ourselves is in our own hands. I know that the country is distressed; but it is not distressed beyond the power remedy.-Let us take care that we do not involve ourselves in slavery, from the distresses of which we can never redeem ourselves. Source: https://www.consource.org/document/an-old-whig-iii-1789-8-22/20130122082932/

October 17, 1787 Mr. PRINTER, Since writing my last, in which I stated some doubts respecting the new federal constitution and expressed a wish that those doubts might be removed, I have met with the printed speech of James Wilson, Esquire.-This speech I find was made for the express purpose of removing objections from the minds of those who doubted, like myself, and wished to be satisfied; and except one or two hard names that have escaped the speaker, it bears the marks of more candor than is to be found in most of the production[s], which have been ushered into the world in support of the same measure. This speech also deserves the more attention as coming from a man of abilities fresh from "the impressions of four months constant attention to the subject." The subject however is one of those which it imports us all very carefully to examine. I have therefore paid very considerable attention to his arguments, at the same time that I have examined with some care the foundation upon which they are built. Still I remain unsatisfied; and the more unsatisfied, as I have been disappointed in my hope of conviction, from a quarter, from which so much was to be expected-You will give me leave therefore to state shortly in your paper, some of those difficulties which still remain with me. The first principle which the gentleman endeavours to establish in his speech is a very important one, if true; and lays a sure foundation to reason upon, in answer to the objection which is made to the new constitution, from the want of a bill of rights. The principle is this: that "in delegating federal powers, the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union," "that every thing which is not given is reserved." If this be a just representation of the matter, the authority of the several states will be sufficient to protect our liberties from the encroachments of Congress, without any continental bill of rights; unless the powers which are expressly given to Congress are too large. Without examining particularly present, whether the powers expressly given to Congress are too large or too small, I shall beg leave to consider, whether the author of this speech is sufficiently accurate in his statement of the proposition above referred to- To strip it of unnecessary words, the position may be reduced to this short sentence, "that every thing which is not expressly given to Congress is reserved;" or in other words "that Congress cannot exercise any power or authority that is not in express words delegated to them."-This certainly is the case under the first articles confederation which hitherto have been the rule and standard of the powers of Congress; for in the second of those articles "each state retains its sovereignty freedom and independence and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled." It was the misfortune of these articles of confederation that they did not by express words give to Congress power sufficient for the purposes of the union; for Congress could not go beyond those powers so expressly given. The position of the speech, therefore is strictly true if applied to the first articles confederation; "that everything which is not expressly given is reserved." We are not however to suppose that the speaker meant insidiously to argue from an article in the old confederation in favor of the new constitution, unless the same thing was also in the new constitution. Let us then fairly examine whether in the proposed new constitution there be any thing from which the gentleman can be justified in his opinion, "that every thing which is not expressly given to Congress is reserved." In the first place then it is most certain that we find no such clause or article in the new constitution. There is nothing in the new constitution which either in form or substance bears the least resemblance to the second article of the confederation. It might nevertheless be a fair argument to insist upon from the nature of delegated powers, that no more power is given in such cases than is expressly given. Whether or not this ground of argument would be such as we might safely rest our liberties upon; or whether it would be more prudent to stipulate expressly as is done in the present confederation for the reservation of all such powers as are not expressly given, it is hardly necessary to determine at present. It strikes me that by the proposed constitution, so far from the reservation of all powers that are not expressly given, the future Congress will be fully authorised to assume all such powers as they in their wisdom or wickedness, according as the one or the other may happen to prevail, shall from time to time think proper to assume. Let us weigh this matter carefully; for it is certainly of the utmost importance, and, if I am right in my opinion, the new constitution vests Congress with such unlimited powers as ought never to be entrusted to any men or body of men. It is justly observed that the possession of sovereign power is a temptation too great for human nature to resist; and although we have read in history of one or two illustrious characters who have refused to enslave their country when it was in their power;-although have seen one illustrious character in our own times resisting the possession of power when set in competition with his duty to his country, yet these instances are so very rare, that it would be worse than madness to trust to the chance of their being often repeated. To proceed then with the enquiry, whether the future Congress will be restricted to those powers which are expressly given to them. I would observe that in the opinion of Montesquieu, and of most other writers, ancient as well as modern, the legislature is the sovereign power. It is certainly the most important. If anyone doubts this, let him reflect upon the frequent inroads which the legislature of Pennsylvania has made upon the other branches of government: Inroads which it is much to be feared, if the powers of government in Pennsylvania should ever in time to come be an object worth contending about, no council of censors will ever be able to check or restrain. Let us then see what are the powers expressly given to the legislature of Congress, and what checks are interposed in the way of the continental legislature's assuming what further power they shall think proper to assume. To this end let us look to the first article of the proposed new constitution, which treats of the legislative powers of Congress; and to the eighth section which pretends to define those powers. We find here that the congress, in its legislative capacity, shall have the power "to lay and collect taxes, duties and excises; to borrow money; to regulate commerce; to fix the rule for naturalization and the laws of bankruptcy; to coin money; to punish counterfeiters; establish post offices and post roads; to secure copyrights to authors; to constitute tribunals; to define and punish piracies; to declare war; to raise and support armies; to provide and support a navy; to make rules for the army and navy; to call forth the militia; to organize, arm and discipline the militia; to exercise absolute power over a district of ten miles square, independant of all the state legislatures, and to be alike absolute over all forts, magazines, arsenals, dockyards and other needful buildings thereunto belonging." This is a short abstract of the powers expressly given to Congress. These powers are very extensive, but I shall not stay at present to inquire whether these express powers were necessary to be given to Congress? whether they are too great or too small? My object is to consider that undefined, unbounded and immense power which is comprised in the following clause;-"And, 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 offices thereof." Under such a clause as this can any thing be said to be reserved and kept back from Congress? Can it be said that the Congress have no power but what is expressed? "To make all laws which shall be necessary and proper" is in other words to make all such laws which the Congress shall think necessary and proper,-for who shall judge for the legislature what is necessary and proper-Who shall set themselves above the sovereign?-What inferior legislature shall set itself above the supreme legislature?- To me it appears that no other power on earth can dictate to them or controul them, unless by force; and force either internal or external is one of those calamities which every good man would wish his country at all times to be delivered from.-This generation in America have seen enough of war and its usual concomitants to prevent all of us from wishing to see anymore of it;-all except those who make a trade of war. But to the question;-without force what can restrain the Congress from making such laws as they please? What limits are there to their authority?-I fear none at all; for surely it cannot justly be said that they have no power but what is expressly given to them, whereby the very terms of their creation they are vested with the powers of making laws in all cases necessary and proper; when from the nature of their power they must necessarily be the judges, what laws are necessary and proper. The British act of Parliament, declaring the power of Parliament to make laws to bind America in all cases whatsoever, was not more extensive; for it is as true as a maxim, that even the British Parliament neither could nor would pass any law in any case in which they did not either deem it necessary and proper to make such law or pretend to deem it so. And in such cases it is not of a farthing consequence whether they really are of opinion that the law is necessary and proper, or only pretend to think so; for who can overrule their pretensions?-No one, unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements. This reasoning I fear Mr. Printer is but too just; and yet, if any man should doubt the truth of it; let me ask him one other question, what is the meaning of the latter part of the clause which vests the Congress with the authority of making all laws which shall be necessary and proper for carrying into execution ALL OTHER POWERS;-besides the foregoing powers vested, &c. &c. Was it thought that the foregoing powers might perhaps admit of some restraint in their construction as to what was necessary and proper to carry them into execution? Or was it deemed right to add still further that they should not be restrained to the powers already named?-besides the powers already mentioned, other powers may be assumed hereafter as contained by implication in this constitution. The Congress shall judge of what is necessary and proper in all these cases and in all other cases;-in short in all cases whatsoever. Where then is the restraint? How are Congress bound down to the powers expressly given? what is reserved or can be reserved? Yet even this is not all-as if it were determined that no doubt should remain, by the sixth article of the constitution it is declared that, "this 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 constitutions or laws of any state to the contrary notwithstanding." The Congress are therefore vested with the supreme legislative power, without controul. In giving such immense, such unlimited powers, was there no necessity of a bill of rights to secure to the people their liberties? Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? and who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character. As I mean to pursue this subject in some other letters, I shall conclude for the present; and am, Yours, AN OLD WHIG. Source: https://www.consource.org/document/an-old-whig-ii-1789-8-18/20130122080742/

October 12, 1787 Mr. PRINTER, I am one of those who have long wished for a federal government, which should have power to protect our trade and provide for the general security of the United States. Accordingly, when the constitution proposed by the late convention made its appearance, I was disposed to embrace it almost without examination; I was determined not to be offended with trifles or to scan it too critically. "We want something: let us try this; experience is the best teacher: if it does not answer our purpose we can alter it: at all events it will serve for a beginning." Such were my reasonings:-but, upon further reflection, I may say that I am shaken with very considerable doubts and scruples, I want a federal constitution; and yet I am afraid to concur in giving my consent to the establishment of that which is proposed. At the same time I really wish to have my doubts removed, if they are not well founded. I shall therefore take the liberty of laying some of them before the public, through the channel of your paper. In the first place, it appears to me that I was mistaken in supposing that we could so very easily make trial of this constitution and again change it at our pleasure. The conventions of the several states cannot propose any alterations-they only to give their assent and ratification. And after the constitution is once ratified, it must remain fixed until two thirds of both the houses of Congress shall deem it necessary to propose amendments; or the legislatures of two thirds of the several states shall make application to Congress for the calling a convention for proposing amendments, which amendments shall not be valid till they are ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof as one or the other mode of ratification may be proposed by Congress. -This appears to me to be only a cunning way of saying that no alteration shall ever be made; so that whether it is a good constitution or a bad constitution, it will remain forever unamended. Lycurgus, when he promulgated his laws to the Spartans, made them swear that they would make no alterations in them until he should return from a journey which he was then about to undertake: -He chose never to return, and therefore no alterations could be made in his laws. The people were made to believe that they could make trial of his laws for a few months or years, during his absence, and as soon as he returned they could continue to observe them or reject at pleasure. Thus this celebrated Republic was in reality established by a trick. In like manner the proposed constitution holds out a prospect of being subject to be changed if it be found necessary or convenient to change it; but the conditions upon which an alteration can take place, are such as in all probability will never exist. The consequence will be that, when the constitution is once established, it never can be altered or amended without some violent convulsion or civil war. The conditions, I say, upon which any alterations can take place, appear to me to be such as never will exist-two thirds of both houses of Congress or the legislatures of two thirds of the states, must agree in desiring convention to be called. This will probably never happen; but if it should happen, then the convention may agree to the amendments or not as they think right; and after all, three fourths of the states must ratify the amendments. -Before all this labyrinth can be traced to a conclusion, ages will revolve, and perhaps the great principles upon which our late glorious revolution was founded, will be totally forgotten. If the principles of liberty are not firmly fixed and established in the present constitution, in vain may we hope for retrieving them hereafter. People once possessed of power are always loth to part with it; and we shall never find two thirds of a Congress voting or proposing anything which shall derogate from their own authority and importance, or agreeing to give back to the people any part of those privileges which they have once parted with-so far from it; that the greater occasion there may be for a reformation, the less likelihood will there be of accomplishing it. The greater the abuse of power, the more obstinately is it always persisted in. As to any expectation of two thirds of the legislatures concurring in such a request, it is if possible, still more remote. The legislatures of the states will be but forms and shadows, and it will be the height of arrogance and presumption in them, to turn their thoughts to such high subjects. After this constitution is once established, it is too evident that we shall be obliged to fill up the offices of assemblymen and councillors, as we do those of constables, by appointing men to serve whether they will or not, and fining them if they refuse. The members thus appointed, as soon as they can hurry through law or two for repairing highways or impounding cattle, will conclude the business of their sessions as suddenly as possible; that they may return to their own business. -Their heads will not be perplexed with the great affairs of state-We need not expect two thirds of them ever to interfere in so momentous a question as that of calling a Continental convention. -The different legislatures will have no communication - with one another from the time of the new constitution being ratified, to the end of the world. Congress will be the great focus of power as well as the great and only medium communication from one state to another. The great, and the wise, and the mighty will be in possession of places and offices; they will oppose all changes in favor of liberty; they will steadily pursue the acquisition of more and more power to themselves and their adherents. The cause of liberty, if it be now forgotten, will be forgotten forever. - Even the press which has so long been employed in the cause of liberty, and to which perhaps the greatest part of the liberty which exists in the world is owing at this moment; the press may possibly be restrained of its freedom, and our children may possibly not be suffered to enjoy this most invaluable blessing of a free communication of each others sentiments on political subjects-Such at least appear to be some men's fears, and I cannot find in the proposed constitution any thing expressly calculated to obviate these fears; so that they may or may not be realized according to the principles and dispositions of the men who may happen to govern us hereafter. One thing however is calculated to alarm our fears on this head; -I mean the fashionable language which now prevails so much and is so frequent in the mouths of some who formerly held very different opinions; -THAT COMMON PEOPLE HAVE NO BUSINESS TO TROUBLE THEMSELVES ABOUT GOVERNMENT. If this principle is just the consequence is plain that the common people need no information on the subject of politics. Newspapers, pamphlets and essays are calculated only to mislead and inflame them by holding forth to them doctrines which they have no business or right to meddle with, which they ought to leave to their superiors. Should the freedom of the press be restrained on the subject of politics, there is no doubt it will soon after be restrained on all other subjects, religious as well as civil. And if the freedom of the press shall be restrained, it will be another reason to despair of any amendments being made in favor of liberty, after the proposed constitution shall be once established. Add to this, that under the proposed constitution, it will be in the power of the Congress to raise and maintain a standing army for their support, and when they are supported by an army, it will depend on themselves to say whether any amendments shall be made in favor of liberty. If these reflections are just it becomes us to pause, and reflect previously before we establish system of government which cannot be amended; which will entail happiness or misery on ourselves and our children. We ought I say to reflect carefully, we ought not by any means to be in haste; but rather to suffer a little temporary inconvenience, than by any precipitation to establish constitution without knowing whether it is right or wrong, and which if wrong, no length of time will ever mend. Scarce any people ever deliberately gave up their liberties; but many instances occur in history of their losing them forever by a rash and sudden act, to avoid a pressing inconvenience or gratify some violent passion of revenge or fear. It was a celebrated observation of one of our Assemblies before the revolution, during their struggles with the proprietaries, that "those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." For the present I shall conclude with recommending to my countrymen not to be in haste, to consider carefully what we are doing. It is our own concern; it is our own business; let us give ourselves a little time at least to read the proposed constitution and know what it contains; for I fear that many, even of those who talk most about it have not even read it, and many others, who are as much concerned any of us, have had no opportunity to read it And it is certainly suspicious circumstance that some people who are presumed to know most about the new constitution seem bent upon forcing it on their countrymen without giving them time to know what they are doing. Hereafter I may trouble you further on some other parts of this important subject; but I fear this letter is already too long. Yours An Old Whig Source: https://www.consource.org/document/an-old-whig-i-1789-8-18/20130122083954/

New York Daily Advertiser, 29 September ADDRESS to all FEDERALISTS. Friends and Countrymen, An individual, who never has been, nor has any ambition at present to be honored by marks of public distinction, presumes to address you. When Common Sense declared it to be the time to try men’s souls, he engaged in your service; nor left it, till the Court of Britain declared you independent. In common with yourselves, he felt a noble enthusiasm warm his breast in the cause of Freedom; and, he trusts, the generous flame is still unextinguished. Animated in the hope of your prosperity, he beheld, without a sigh, the fair expectations of affluence, to which he was born, blasted by the wanton cruelty of an enemy, and by injustice and fraud, sanctified by law: And now, should you embrace the heaven-sent opportunity to secure to yourselves the invaluable blessings of Liberty and Independence, he shall still glory in every sacrifice. The Constitution of Government proposed to your acceptance, reflects the highest honor upon its compilers; and adds a lustre, even to the names of Washington and Franklin! Whether it meets your approbation, or not, it will excite the plaudit of the world; and your enlightened posterity will mark it as an exalted instance of American genius. Here we view the sources of energy, wisdom and virtue, delicately combined. Here the Legislative, Executive, and Judicial powers are completely separated, exactly defined, and accurately balanced. Here are instituted the wisest checks to ambition in the rulers, and to licentiousness in the ruled. Here we find the most admirable fetters to self-interest, and the most indestructible securities of civil liberty. Here we behold thegreatest concessions made by the strongest; and, if any partiality is shewn, it is in favor of the weak.–Should it remind you of the Government of Poland, you will reflect, that the mode and frequency of electing our Executive Head, completely evade the confusion of an elective Monarchy. But, what is more probable, should it remind of a Government, once justly dear to us–then let us enquire, where, among foreign nations, are the people who may boast like Britons? In what country is justice more impartially administered, or the rights of the citizen more securely guarded? Had our situation been sufficiently contiguous; had we been justly represented in the Parliament of Great-Britain; to this day we should have gloried in the peculiar, the distinguished blessings of our political Constitution. But, even here, the Federal Government rises in the comparison. For in this we find the avenues of corruption and despotism completely closed. No Lords strut here with supercilious haughtiness; or swell with emptiness; but virtue, good sense and reputation alone ennoble the blood, and introduce the Plebeian to the highest offices of State. Our Executive Head is mediately dependent upon the People; he has no power to grant pensions, to purchase an undue influence, or to bribe in a fancied representation of the commons. All dignities flow from yourselves: those, indeed, of the judicial kind, not so immediately, as your own experience must have convinced you is proper. That the people of a free Government mean right, when, frequently, they think wrong, is a truth which renders it indispensible, that certain of their servants should feel so independent, as to be unswayed by popular caprice and error. But, in forming this Constitution, your Delegates were not obliged to look abroad for assistance; many approved models were to be found at home, the excellencies and deficiencies of which experience had already discovered. Perhaps, to point out such obvious advantages, some may deem affrontive to the good understanding of Americans, or unnecessary until attempts are made to deceive them. It is, moreover, beside the intention of this address; which was to exhort your most earnest attention to the present important crisis of public affairs. Never have you seen a period replete with more extensive consequences. Unbiassed and impartial, examine, then, for yourselves, how worthy that system of Government is, which the collected wisdom of the nation has recommended to your acceptance. Study and scrutinize its various parts; survey, with a jealous eye, the profound intelligence and policy it discloses. And, when once your minds are persuaded of its propriety, determine with unanimity, and with decided resolution to adopt, support, and perpetuate it. Think not that such an eventful revolution, so great and so promising, should meet with no oppostion. Nothing great or good, of the kind, ever commenced or ever existed without it. Opposition will arise from a variety of sources. A few will be actuated by a vain spirit of contention, or affectation of singularity. Some will prattle of chimerical dangers, to shew their superior discernment, or to obtrude themselves into notice. Even low wit and buffoonery shall raise their silly weapons. Perhaps you will be told, among Anti-Federalists that, when the new Government is established, “money will grow upon the trees”–that “Washington has been duped”–that “Franklin has grown old”–that “Pinckney and Hamilton are boys.”–Thus far opposition merits your contempt. But the fears of the jealous, of the undiscerning, and of the ignorant, among each of which classes there may be men of integrity and principle; the obstinacy of prepossession and party spirit; the secret intrigues of the ambitious; and clamours of avarice and self interest; these will be exerted to undermine your prospects of national felicity, and of these you should be aware. To hear from them any thing like solid argument, or calm discussion, is scarcely to be expected. From popular rumor, I have not as yet been able to collect an attempt of this kind, that merits your slightest regard. The ground of controversy is now changed. Every objection, from the purse and the sword being entrusted to one body of men, is now removed, by the different organization of the Federal Head: objections which had weight with many of your real friends, and have had their full force granted in the construction of the present system. These objections were formerly answered by an appeal to necessity. For, better was it that the efficient powers of Government should be lodged any where than no where: better in one delegated Assembly, mutable in its members, and removable at your pleasure, than in no Assembly at all. For, certainly, rigid order, in society, is preferable to licentious disorder; and an absolute Monarchy, to an absolute Anarchy. (The people of Virginia, some time since, in instructions to their Representatives, speaking of Congress, declare, “that the melioration of a Constitution, founded upon such false and incompatible principles, seems in every view almost impossible; but expedients proposed, which require the unanimous concurrence of thirteen separate Legislatures, differing in interests, distinct in habits, and opposite in prejudices, have so repeatedly failed, that they no longer furnish a ray of hope:-We pray, therefore, for the day, when we shall see a national Convention sit, composed of the best and ablest men in the Union, a majority of whom shall be invested with the power of altering it. It is now so bad, as to defy the malice of fortune and ingenuity to make it worse.”) If opposition is made in your public assemblies, which I have hope will not be the case, from the means of information time will give all classes of people, you will find ignorance and artifice endeavoring to shroud themselves from public contempt, under an affected silence; and perhaps not the shadow of an argument produced in support of a dead vote. For shame, electors! let not the good sense of Americans be thus represented; but if men do appear in your legislative bodies in support of a bad cause, let them at least be able to gild its deformity. But should you ratify the proceedings of your Convention, the happy event will form an epocha, more peculiar in its nature, more felicitating in its consequences, and more interesting to the philosophic mind, than ever the political history of man has displayed. Where is the country in which the principles of civil liberty and jurisprudence are so well understood as in this–and where has ever such an assembly of men been deputed for such a purpose? To see an assemblage of characters, most of them illustrious for their integrity, patriotism and abilities, representing many Sovereign States; framing a system of Government for the whole, in the midst of a profound peace; unembarrassed by any unfavorable circumstance abroad, uninfluenced by any selfish motive at home; but making the most generous concessions to each other for the common welfare, and directing their deliberations with the most perfect unanimity–to see a Constitution of Government thus formed, and fraught with wisdom, economy, and foresight, adapted to the political habits of their constituents, to the state of Society and civilization, to the peculiar circumstances of their country, and to those enlightened sentiments of freedom and toleration, so dear to all good men-and, finally, to see this Constitution ratified and adopted by several millions of people, inhabiting an extensive country, not from any coertion, but from mere principles of propriety, wisdom, and policy–these are objects too great, and too glorious, to be viewed with common admiration and delight–the idea alone is animating to every bosom, susceptible of the emotions of patriotism or philanthropy–the attempt alone reflects a dignity upon human nature, and the execution secures freedom and public happiness to remote posterity. This great event will disclose the meaning of those many astonishing providences, which gave timely aid to American arms in the just struggle for independence. From this it will appear, that these were not intended to usher in, upon this recent theatre of cultivated humanity, the horrors of domestic jarring; but to establish, upon the firmest basis, Union, freedom, and tranquillity. The prerogative of the great Guardian of Nations, to educe good from evil, will become illustrious. Our reproach abroad, and disarrangement at home, will but shew us, in contrast, the magnitude and propriety of our change. The light of prosperity will but shine the brighter, as just bursting from the dissipated clouds of injustice, avarice, and ambition. Let us then be of one heart, and of one mind. Let us seize the golden opportunity to secure a stable Government, and to become a respectable nation. Let us be open, decided, and resolute, in a good cause. Let us render our situation worthy the ashes of our slaughtered brethren, and our own sufferings. Let us remember our emblem, the twisted serpent, and its emphatical motto, Unite or Die. This was once written in blood; but it is as emphatical now as then. A house divided against itself cannot stand. Our national existence depends as much as ever upon our Union; and its consolidation most assuredly involves our prosperity, felicity, and safety. Source: https://americanfounding.org/entries/curtius-no-i/

In considering the respective powers of the President, the Senate and the House of Representatives, under the Federal constitution, we have seen a part of the wholesome precautions, which are contained in the new system. Let us examine what further securities for the safety and happiness of the people are contained in the general stipulations and provisions. The United States guarantee to every state in the union a separate republican form of government. From thence it follows, that any man or body of men, however rich or powerful, who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large, will stand guilty of high treason; or should a foreign power seduce or overawe the people of any state, so as to cause them to vest in the families of any ambitious citizens or foreigners the powers of hereditary governors, whether as Kings or Nobles, that such investment of powers would be void in itself, and every person attempting to execute them would also be guilty of treason. No religious test is ever to be required of any officer or servant of the United States. The people may employ any wise and good citizen in the execution of the various duties of the government. In Italy, Spain and Portugal, no protestant can hold a public trust. In England every Presbyterian, and other person not of their established church, is incapable of holding an office. No such impious deprivation of the rights of men can take place under the new Federal constitution. The convention has the honor of proposing the first public act, by which any nation has ever divested itself of a power, every exercise of which is a trespass on the Majesty of Heaven. No qualification in monied or landed property is required by the proposed plan; nor does it admit any preference from the preposterous distinctions of birth and rank. The office of the President, a Senator, and a Representative, and every other place of power or profit, are therefore open to the whole body of the people. Any wise, informed and upright man, be his property what it may, can exercise the trusts and powers of the state, provided he possesses the moral, religious and political virtues which are necessary to secure the confidence of his fellow citizens. The importation of slaves from any foreign country is, by a clear implication, held up to the world as equally inconsistent with the dispositions and the duties of the people of America. A solid foundation is laid for exploding the principles of negro slavery, in which many good men of all parties in Pennsylvania, and throughout the union, have already concurred. The temporary reservation of any particular matter must ever be deemed an admission that it should be done away. This appears to have been well understood. In addition to the arguments drawn from liberty, justice and religion, opinions against this practice, founded in sound policy, have no doubt been urged. Regard was necessarily paid to the peculiar situation of our southern fellow-citizens; but they, on the other hand, have not been insensible of the delicate situation of our national character on this subject. The people will remain, under the proposed constitution, the fountain of power and public honor. The President, the Senate, and House of Representatives, will be the channels through which the stream will flow—but it will flow from the people, and from them only. Every office, religious, civil and military, will be either their immediate gift, or it will come from them through the hands of their servants. And this, as observed before, will be guaranteed to them under the state constitutions which they respectively approve; for they cannot be royal forms, cannot be aristocratical, but must be republican. The people of those states which have faithfully discharged their duty to the union will be no longer subjected alone to the weight of the public debts. Proper arrangements will call forth the just proportion of their sister states, and our national character will again be as unstained, as it was once exalted. Elevation to independence, with the loss of our good name, is only to be conspicuous in disgrace. The liberties of a people involved in debt, are as uncertain as the liberty of an individual in the same situation. Their virtue is more precarious. The unfortunate citizen must yield to the operation of the laws, while a bankrupt nation too easy annihilates the sacred obligations of gratitude and honor, and becomes execrable and infamous. I cannot refrain from reminding my fellow-citizens of our near approach to that deplorable situation, which must be our miserable condition, if the defects of the old confederation remain without amendment. The proposed constitution will cure the evil, and restore us to our rank among mankind. Laws, made after the commission of the fact, have been a dreadful engine in the hands of tyrannical governors. Some of the most virtuous and shining characters in the world have been put to death, by laws formed to render them punishable, for parts of their conduct which innocence permitted, and to which patriotism impelled them. These have been called ex post facto laws, and are exploded by the new system. If a time of public contention shall hereafter arrive, the firm and ardent friends to liberty may know the length to which they can push their noble opposition, on the foundation of the laws. Should their country’s cause impel them further, they will be acquainted with the hazard, and using those arms which Providence has put into their hands, will make a solemn appeal to “the power above.” The destruction of the ancient republics was occasioned in every instance by their being ignorant of a great political position, which was left for America to discover and establish. Self-evident as the truth appears, we find no friend to liberty in ancient Greece or Rome asserting, that taxation and representation were inseparable. The Roman citizens, proud of their own liberty, imposed, in the freest times of the commonwealth, the most grievous burdens on their wretched provinces. At other times we find thousands of their citizens, tho’ residing within the walls of Rome, deprived of legislative representatives. When America asserted the novel truth, Great-Britain, tho’ boasting herself as alone free among the modern nations, denied it by her legislature, and endeavoured to refute it by her arms—the reasoning of tyrants. But the attempt was vain, for the voice of truth was heard above the thunders of the war, and reached the ears of all nations. Henceforth the people of the earth will consider this position as the only rock on which they can found the temple of liberty, that taxation and representation are inseparable. Our new constitution carries it into execution on the most enlarged and liberal scale, for a Representative will be chosen by six thousand of his fellow-citizens, a Senator by half a sovereign state, a President by a whole nation. The old federal Constitution contained many of the same things, which from error or disingenuousness are urged against the new one. Neither of them have a bill of rights, nor does either notice the liberty of the press, because they are already provided for by the State Constitutions; and relating only to personal rights, they could not be mentioned in a contract among sovereign states. Both the old and new Federal constitutions, and indeed the constitution of Pennsylvania, admit of courts in which no use is made of a jury. The board of property, the court of admiralty, and the high court of errors and appeals, in the state of Pennsylvania, as also the court of appeals under the old confederation, exclude juries. Tryal by jury will therefore be in the express words of the Pennsylvania constitution, “as heretofore,”—almost always used, though sometimes omitted. Trials for lands lying in any state between persons residing in such state, for bonds, notes, book debts, contracts, trespasses, assumptions, and all other matters between two or more citizens of any state, will be held in the state courts by juries, as now. In these cases, the federal courts cannot interfere. But when a dispute arises between the citizens of any state about lands lying out of the bounds thereof, or when a trial is to be had between the citizens of any state and those of another, or the government of another, the private citizen will not be obliged to go into a court constituted by the state, with which, or with the citizens of which, his dispute is. He can appeal to a disinterested federal court. This is surely a great advantage, and promises a fair trial, and an impartial judgment. The trial by jury is not excluded in these federal courts. In all criminal cases, where the property, liberty or life of the citizen is at stake, he has the benefit of a jury. If convicted on impeachment, which is never done by a jury in any country, he cannot be fined, imprisoned or punished, but only may be disqualified from doing public mischief by losing his office, and his capacity to hold another. If the nature of his offence, besides its danger to his country, should be criminal in itself—should involve a charge of fraud, murder or treason—he may be tried for such crime, but cannot be convicted without a jury. In trials about property in the Federal courts, which can only be as above stated, there is nothing in the new constitution to prevent a trial by jury. No doubt it will be the mode in every case, wherein it is practicable. This will be adjusted by law, and it could not be done otherwise. In short, the sphere of jurisdiction for the federal courts is limited, and that sphere only is subject to the regulations of our federal government. The known principles of justice, the attachment to trial by jury whenever it can be used, the instructions of the state legislatures, the instructions of the people at large, the operation of the federal regulations on the property of a president, a senator, a representative, a judge, as well as on that of a private citizen, will certainly render those regulations as favorable as possible to property; for life and liberty are put more than ever into the hands of the juries. Under the present constitution of all the states, a public officer may be condemned to imprisonment or death on impeachment, without a jury; but the new federal constitution protects the accused, till he shall be convicted, from the hands of power, by rendering a jury the indispensible judges of all crimes. The influence which foreign powers may attempt to exercise in our affairs was foreseen, and a wholesome provision has been made against it; for no person holding an office under the United States is permitted to enjoy any foreign honors, powers or emoluments. The apprehensions of the people have been excited, perhaps by persons with good intentions, about the powers of the new government to raise an army. Let us consider this point with moderation and candor. As enemies will sometimes insult us, invade our country, and capture our property, it is clear a power in our government to oppose, restrain or destroy them, is necessary to our honor, safety and existence. The military should, however, be regarded with a watchful eye; for it is a profession that is liable to dangerous perversion. But the powers vested in the federal government do not go the length which has been said. A standing army is not granted or intended, for there can be no provision for its continuing three years, much less for its permanent establishment. Two years are the utmost time for which The money can be given. It will be under all the restrictions which wisdom and jealousy can suggest, and the original grant of the supplies must be made by the House of Representatives, the immediate delegates of the people. The Senate and President, who also derive their power from the people, appoint the officers; and the heads of the departments, who must submit their accounts to the whole legislature, are to pay and provide them, as shall be directed by the laws that shall contain the conditions of the grant. The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to overawe them—for our detached situation will seldom give occasion to raise an army, though a few scattered companies may often be necessary. But whenever, even on the most obvious reasons, an army shall be raised, the several states shall be called, by the nature of things, to attend to the condition of the militia. Republican jealousy, the guardian Angel of these states, will watch the motions of our military citizens, even though they will be the soldiers of a free people. There is a wide difference between the troops of such a commonwealth as ours, founded on equal and unalterable principles, and those of a regal government, where ambition and oppression are the profession of the king. In the first case, a military officer is the occasional servant of the people, employed for their defence; in the second, he is the ever ready instrument to execute the schemes of conquest or oppression, with which the mind of his royal master may be disturbed. Observations have been made on the power given to the federal Government in regard to the elections of Representatives and Senators. The regulations of these elections are, by the first part of the clause, to be prescribed by the state legislatures, who are certainly the proper bodies, if they will always execute the duty. But in case the union or the public safety should be endangered by an omission of this duty, as in the case of Rhode-Island, then the legislature of the United States can name for the people a convenient time, and do other matters necessary to ensure the free exercise of their right of election. The exception, in regard to the places of chusing Senators, was made from due respect to the sovereignty of the state legislatures, who are to elect the Senators, and whose place of meeting ought not to be prescribed to them by any authority, except indeed, as we always must, by the authority of the people. This power given to the federal legislature is no more than what is possessed by the governments of all the states. The constitution of Pennsylvania permits two thirds of such cities and counties, as shall elect representatives, to exercise all the powers of the General Assembly, “as fully and amply as if the whole were present,” should any part of the state neglect or refuse to perform their duty in this particular. In short, it is a power necessary to preserve the social compact of each state and the confederation of the United States. Besides the securities for the liberties of the people arising out of the federal government, they are guarded by their state constitutions, and by the nature of things in the separate states. The Governor or President in each commonwealth, the Councils, Senates, Assemblies, Judges, Sheriffs, Grand and Pettit Juries, Officers of Militia, Clergy and Lay Officers of all churches, state and county Treasurers, Prothonotaries, Registers, Presidents and other officers of Universities, Colleges and Academies, Wardens of ports and cities, Burgesses of towns, Commissioners of counties, County Lieutenants, and many other officers of power and influence, will still be chosen within each state, without any possible interference of the federal government. The separate states will also chuse all the members of the legislative and executive branches of the United States. The people at large in each state will choose their Federal representatives, and, unless ordered otherwise by the state legislatures, may choose the electors of the President and Vice-President of the Union. And lastly, the legislatures of the states will have the election of the Senate, as they have heretofore had of the Members of Congress. Let us then, with a candor worthy of the subject, ask ourselves, whether it can be feared, that a majority of the Representatives, each of whom will be chosen by six thousand enlightened freemen, can betray their country?—Whether a majority of the Senate, each of whom will be chosen by the legislature of a free, sovereign and independent state, without any stipulations in favour of wealth or the contemptible distinctions of birth or rank, and who will be closely observed by the state legislatures, can destroy our liberties, controuled as they are too by the house of representatives?—or whether a temporary limited executive officer, watched by the federal Representatives, by the Senate, by the State Legislatures, by his personal enemies among the people of his own state, by the jealousy of the people of rival states, and by the whole of the people of the Union, can ever endanger our Freedom? Permit me, my fellow-citizens, to close these observations by remarking, that there is no spirit of arrogance in the new federal constitution. It addresses you with becoming modesty, admitting that it may contain errors. Let us give it a trial; and when experience has taught its mistakes, the people, whom it preserves absolutely all powerful can reform and amend them. That I may be perfectly, understood, I will acknowledge its acceptance by all the states, without delay, is the second wish of my heart. The first is, that our country may be virtuous and free. Source: https://teachingamericanhistory.org/document/an-american-citizen-an-examination-of-the-constitution-of-the-united-states-iv/

An American Citizen III September 29, 1787 In pursuing the consideration of the new Federal Constitution, it remains now to examine the nature and powers of the House of Representatives—the immediate delegates of the people. Each member of this truly popular assembly will be chosen by about six thousand electors, by the poor as well as the rich. No decayed and venal borough will have an unjust share in their determinations. No old Sarum will send thither a Representative by the voice of a single elector. As we shall have no royal ministries to purchase votes, so we shall have no votes for sale. For the suffrages of six thousand enlightened and independent freemen are above all price. When the increasing population of the country shall render the body too large at the rate of one member for every thirty thousand persons, they will be returned at the greater rate of one for every forty or fifty thousand, which will render the electors still more incorruptible. For this regulation is only designed to prevent a smaller number than thirty thousand from having a Representative. Thus we see a provision follows, that no state shall have less than one member; for if a new and greater number should hereafter be fixed on, which shall exceed the whole of the inhabitants of any state, such state, without this wholesome provision, would lose its voice in the House of Representatives, a circumstance which the Constitution renders impossible. The people of England, whose House of Commons is filled with military and civil officers and pensioners, say their liberties would be perfectly secured by triennial parliaments. With us no placemen can sit among the Representatives of the people, and two years are the constitutional term of their existence. Here again, lest wealth, powerful connections, or even the unwariness of the people should place in this important trust an undeserving, unqualified or inexperienced youth, the wisdom of the Convention has proposed an absolute incapacity till the age of twenty-five. At twenty-one a young man is made the guardian of his own interests, but he cannot for a few years more be entrusted with the affairs of the nation. He must be an inhabitant of the state that elects him, that he may be intimately acquainted with their particular circumstances. The House of Representatives is not, as the Senate, to have a president chosen for them from without their body, but are to elect their speaker from their own number. They will also appoint all their other officers. In great state cases, they will be the grand inquest of the nation, for they possess the sole and uncontrollable power of impeachment. They are neither to wait the call nor abide the prorogations and dissolutions of a perverse or ambitious prince, for they are to meet at least once in every year, and sit on adjournments to be agreed on between themselves and the other servants of the people. Should they differ in opinion, the President, who is a temporary fellow servant and not their hereditary master, has a mediatorial power to adjust it for them, but cannot prevent their constitutional meeting within the year. They can compel the attendance of their members, that their public duty may not be evaded in times of difficulty or danger. The vote of each Representative can be always known, as well as the proceedings of the House, that so the people may be acquainted with the conduct of those in whom they repose so important a trust. As was observed of the Senators, they cannot make new offices for themselves, nor increase, for their own benefit, the emoluments of old ones, by which the people will be exempted from needless additions to the public expenses on such sordid and mercenary principles. They are not to be restrained from the firm and plain language which becomes the independent representatives of freemen, for there is to be a perfect liberty of speech. Without their consent no monies can be obtained, no armies raised, no navies provided. They alone can originate bills for drawing forth the revenues of the Union, and they will have a negative upon every legislative act of the other house. So far, in short, as the sphere of federal jurisdiction extends, they will be controllable only by the people, and in contentions with the other branch, so far as they shall be right, they must ever finally prevail. Such, my countrymen, are some of the cautionary provisions of the frame of government your faithful Convention have submitted to your consideration—such the foundations of peace, liberty and safety, which have been laid by their unwearied labors. They have guarded you against all servants but those “whom choice and common good ordain,” against all masters “save preserving Heaven." Source: https://archive.csac.history.wisc.edu/pa_1.pdf

An American Citizen II September 28, 1787 We have seen that the late Honorable Convention, in designating the nature of the chief executive office of the United States, have deprived it of all the dangerous appendages of royalty, and provided for the frequent expiration of its limited powers. As our President bears no resemblance to a king, so we shall see the Senate have no similitude to nobles. First then not being hereditary, their collective knowledge, wisdom and virtue are not precarious, for by these qualities alone are they to obtain their offices; and they will have none of the peculiar follies and vices of those men who possess power merely because their fathers held it before them, for they will be educated (under equal advantages and with equal prospects) among and on a footing with the other sons of a free people. If we recollect the characters, who have, at various periods, filled the seats of Congress, we shall find this expectation perfectly reasonable. Many young men of genius and many characters of more matured abilities, without fortunes, have been honored with that trust. Wealth has had but few representatives there, and those have been generally possessed of respectable personal qualifications. There have also been many instances of persons, not eminently endowed with mental qualities, who have been sent thither from a reliance on their virtues, public and private. As the Senators are still to be elected by the legislatures of the states, there can be no doubt of equal safety and propriety in their future appointment, especially as no further pecuniary qualification is required by the Constitution. They can hold no other office civil or military under the United States, nor can they join in making provisions for themselves, either by creating new places or increasing the emoluments of old ones. As their sons are not to succeed them, they will not be induced to aim at an increase or perpetuity of their powers, at the expense of the liberties of the people of which those sons will be a part. They possess a much smaller share of the judicial power than the upper house in Britain, for they are not, as there, the highest court in civil affairs. Impeachments alone are the cases cognizable before them, and in what other place could matters of that nature be so properly and safely determined? The judges of the federal courts will owe their appointments to the President and Senate, therefore may not feel so perfectly free from favor, affection and influence as the upper house, who receive their power from the people, through their state representatives, and are immediately responsible to those assemblies, and finally to the nation at large. Thus we see when a daring or dangerous offender is brought to the bar of public justice, the people who alone can impeach him by their immediate representatives will cause him to be tried, not by the judges appointed in the heat of the occasion, but by two-thirds of a select body, chosen a long time before, for various purposes by the collected wisdom of their state legislatures. From a pretense or affection of extraordinary purity and excellence of character their word of honor is the sanction under which these high courts in other countries have given their sentence. But with us, like the other judges of the Union, like the rest of the people of which they are never to forget they are a part, it is required that they be on oath. No ambitious, undeserving or unexperienced youth can acquire a seat in this house by means of the most enormous wealth or most powerful connections, till thirty years have ripened his abilities and fully discovered his merits to his country—a more rational ground of preference surely than mere property. The Senate, though more independent of the people as to the free exercise of their judgment and abilities than the House of Representatives, by the longer term of their office, must be older and more experienced men, and the public treasures, the sinews of the state, cannot be called forth by their original motion. They may restrain the profusion or errors of the House of Representatives, but they cannot take the necessary measures to raise a national revenue. The people, through the Electors, prescribe them such a President as shall be best qualified to control them. They can only, by conviction on impeachment, remove and incapacitate a dangerous officer, but the punishment of him as a criminal remains within the province of the courts of law to be conducted under all the ordinary forms and precautions, which exceedingly diminishes the importance of their judicial powers. They are detached, as much as possible, from local prejudices in favor of their respective states by having a separate and independent vote, for the sensible and conscientious use of which, every member will find his person, honor and character seriously bound. He cannot shelter himself, under a vote in behalf of his state, among his immediate colleagues. As there are only two, he cannot be voluntarily or involuntarily governed by the majority of the deputation. He will be obliged, by wholesome provisions, to attend his public duty, and thus in great national questions must give a vote of the honesty of which he will find it necessary to convince his constituents. The Senate must always receive the exceptions of the President against any of their legislative acts, which, without serious deliberation and sufficient reasons, they will seldom disregard. They will also feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence, and are moreover to remain the immediate guardians of the people. And lastly the Senate will feel the mighty check of the House of Representatives—a body so pure in its election, so intimately connected, by its interests and feelings, with the people at large, so guarded against corruption and influence—so much, from its nature, above all apprehensions, that it must ever be able to maintain the high ground assigned to it by the Federal Constitution. Source: https://archive.csac.history.wisc.edu/pa_1.pdf

October 1, 1787 The Citizens of the State of New-York have received yesterday, from Cato (an ally of Pompey, no doubt) an introductory discourse on the appearance of the New System for the Government of the United States: this, we are told, will be followed by such observations, on the constitution proposed to the Union, "as will promote our welfare and be justified by reason and truth."1 There is, in this preparatory lecture, little that is necessary to be dwelt on just now; and if Cato had not possessed his future investigations, in such terms as wore a questionable shape, they should have passed unheeded. Cato tells us that he will not directly engage as an advocate, for this new form of Government-or as an opponent. Here Cato, without any dispute, acts prudently. It will be wise in him to rest a while; since he has given a preface, which, with small address, can easily be made to work on either side. When the sentiments of the Confederated States come to be generally known, it will be time enough to proceed-Cato will then start fair. A little caution, however, he thinks necessary to be given in the mean time. "Do not" says this prudent Censor, in addressing the Citizens, "because you admit that something must be done, adopt anything." What, in the name of common sense, does this injunction import? I appeal to men of understanding, whether it is not obviously the language of distrust, calculated, as far as such a thing can influence, to prejudice to public opinion against the New Constitution; and, in effect, by a periphrastic mode of speech, recommending the rejection of it?-"Teach the Members of the Convention (Cato very modestly goes on) that you are capable of a supervision of their conduct; the same medium that gave you this system, if it is erroneous, while the door is now open, can make amendments, or give you another." O excellent thought, and happily advised! Be clamorous, my friends-be discontented-assert your prerogactive-for ever assert the power and Majesty of the People!!!-I am not willing to suspect any man's intentions, when they aim at giving information; but when they come abroad, couched in such magisterial terms, I own I feel some indignation. If this demagogue had talents to throw light on the subject of Legislation, why did he not offer them when the Convention was in session? If they had been judged useful, no doubt they would have been attended to. But is this now a time for such insinuations? Has not the wisdom of America been drawn, as it were, into a focus, and the proferred Constitution sent forth with an unanimity, that is unequalled in ancient or modern story? And shall we now wrangle and find fault with that excellent Whole, because, perhaps, some of its parts might have been more perfect? There is neither virtue nor patriotism in such conduct. Besides, how can Cato say, "That the door is now open to receive any amendments, or to give us another Constitution, if required." I believe he has advanced this without proper authority. I am inclined to believe that the door of recommendation is shut, and cannot be opened by the same men; that the Convention, in one word, is dissolved: if so, we must reject, IN TOTO, or vice versa; just take it as it is; and be thankful.2 I deny the similarity betwixt the present Constitution and that of the United Netherlands, Cato would here draw a very melancholy picture, but it won't apply. In my humble opinion, it has a much greater affinity with a Government, which, in all human probability, will remain when the History of the Seven Provinces shall be forgotten. Cato tells us (what all America knows by this time) that the New Constitution comes sanctioned with the approbation of General Washington; and, though he appears to have some reverence for that great patriot chief, yet he very sagaciously observes, that the BEST AND 'WISEST MAN MAY ERR; and thence asserts, that every man in politics, as well as in religion, ought to judge for himself. This paragraph needs no comment, and, for that reason, I shall not touch it; but, with all deference to Cato's penetration, I would recommend to him, instead of entering into fruitless discussion of what has come from so many clear heads, and good hearts, to join his Fellow Citizens, and endeavour to reconcile this excellent Constitution to the weak, the suspicious, and the interested, who will be chiefly opposed to it; that we may enjoy the blessings of it as soon as possible. I would also advise him to give his vote (as he will probably be one of the Electors) to the American Fabius: it will be more healthy for this country, and this state, that he should be induced to accept of the Presidency of the New Government, than that he should be solicited again to accept of the command of an army. Cato, it appears, intends to adventure on perilous ground; it will therefore become him to be cautious on what terms he takes the field. "He advises us to attach ourselves to measures, and not to men." In this instance he advises well; and I heartily recommend to himself, not to forget the force of that important admonition: for Cato, in his future marches, will very probably be followed by CAESAR. Source: https://teachingamericanhistory.org/document/caesar-letter-i/

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 anapprehension 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 citzen 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 state 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. Source: https://teachingamericanhistory.org/document/federal-farmer-xviii/

Dear sir, I believe the people of the United States are full in the opinion, that a free and mild government can be preserved in their extensive territories, only under the substantial forms of a federal republic. As several of the ablest advocates for the system proposed, have acknowledged this (and I hope the confessions they have published will be preserved and remembered) I shall not take up time to establish this point. A question then arises, how far that system partakes of a federal republic. — I observed in a former letter, that it appears to be the first important step to a consolidation of the states; that its strong tendency is to that point. But what do we mean by a federal republic? and what by a consolidated government? To erect a federal republic, we must first make a number of states on republican principles; each state with a government organized for the internal management of its affairs: The states, as such, must unite under a federal head, and delegate to it powers to make and execute laws in certain enumerated cases, under certain restrictions; this head may be a single assembly, like the present congress, or the Amphictionic council; or it may consist of a legislature, with one or more branches; of an executive, and of a judiciary. To form a consolidated, or one entire government, there must be no state, or local governments, but all things, persons and property, must be subject to the laws of one legislature alone; to one executive, and one judiciary. Each state government, as the government of New Jersey, &c. is a consolidated, or one entire government, as it respects the counties, towns, citizens and property within the limits of the state. — The state governments are the basis, the pillar on which the federal head is placed, and the whole together, when formed on elective principles, constitute a federal republic. A federal republic in itself supposes state or local governments to exist, as the body or props, on which the federal head rests, and that it cannot remain a moment after they cease. In erecting the federal government, and always in its councils, each state must be known as a sovereign body; but in erecting this government, I conceive, the legislature of the state, by the expressed or implied assent of the people, or the people of the state, under the direction of the government of it, may accede to the federal compact: Nor do I conceive it to be necessarily a part of a confederacy of states, that each have an equal voice in the general councils. A confederated republic being organized, each state must retain powers for managing its internal police, and all delegate to the union power to manage general concerns: The quantity of power the union must possess is one thing, the mode of exercising the powers given, is quite a different consideration; and it is the mode of exercising them, that makes one of the essential distinctions between one entire or consolidated government, and a federal republic; that is, however the government may be organized, if the laws of the union, in most important concerns, as in levying and collecting taxes, raising troops, &c. operate immediately upon the persons and property of individuals, and not on states, extend to organizing the militia, &c. the government, as to its administration, as to making and executing laws, is not federal, but consolidated. To illustrate my idea — the union makes a requisition, and assigns to each state its quota of men or monies wanted; each state, by its own laws and officers, in its own way, furnishes its quota: here the state governments stand between the union and individuals; the laws of the union operate only on states, as such, and federally: Here nothing can be done without the meetings of the state legislatures — but in the other case the union, though the state legislatures should not meet for years together, proceeds immediately, by its own laws and officers, to levy and collect monies of individuals, to inlist men, form armies, &c. here the laws of the union operate immediately on the body of the people, on persons and property; in the same manner the laws of one entire consolidated government operate. — These two modes are very distinct, and in their operation and consequences have directly opposite tendencies: The first makes the existence of the state governments indispensable, and throws all the detail business of levying and collecting the taxes, &c. into the hands of those governments, and into the hands, of course, of many thousand officers solely created by, and dependent on the state. The last entirely excludes the agency of the respective states, and throws the whole business of levying and collecting taxes, &c. into the hands of many thousand officers solely created by, and dependent upon the union, and makes the existence of the state government of no consequence in the case. It is true, congress in raising any given sum in direct taxes, must by the constitution, raise so much of it in one state, and so much in another, by a fixed rule, which most of the states some time since agreed to: But this does not effect the principle in question, it only secures each state against any arbitrary proportions. The federal mode is perfectly safe and eligible, founded in the true spirit of a confederated republic there could be no possible exception to it, did we not find by experience, that the states will sometimes neglect to comply with the reasonable requisitions of the union. It being according to the fundamental principles of federal republics, to raise men and monies by requisitions, and for the states individually to organize and train the militia, I conceive, there can be no reason whatever for departing from them, except this, that the states sometimes neglect to comply with reasonable requisitions, and that it is dangerous to attempt to compel a delinquent state by force, as it may often produce a war. We ought, therefore, to enquire attentively, how extensive the evils to be guarded against are, and cautiously limit the remedies to the extent of the evils. I am not about to defend the confederation, or to charge the proposed constitution with imperfections not in it; but we ought to examine facts, and strip them of the false colourings often given them by incautious observations, by unthinking or designing men. We ought to premise, that laws for raising men and monies, even in consolidated governments, are not often punctually complied with. Historians, except in extraordinary cases, but very seldom take notice of the detail collection of taxes; but these facts we have fully proved, and well attested; that the most energetic governments have relinquished taxes frequently, which were of many years standing. These facts amply prove, that taxes assessed, have remained many years uncollected. I agree there have been instances in the republics of Greece, Holland, &c. in the course of several centuries, of states neglecting to pay their quotas of requisitions; but it is a circumstance certainly deserving of attention, whether these nations which have depended on requisitions principally for their defence, have not raised men and monies nearly as punctually as entire governments, which have taxed directly; whether we have not found the latter as often distressed for the want of troops and monies, as the former. It has been said, that the Amphictionic council, and the Germanic head, have not possessed sufficient powers to controul the members of the republic in a proper manner. Is this, if true, to be imputed to requisitions? Is it not principally to be imputed to the unequal powers of those members, connected with this important circumstance, that each member possessed power to league itself with foreign powers, and powerful neighbours, without the consent of the head. After all, has not the Germanic body a government as good as its neighbours in general? and did not the Grecian republic remain united several centuries, and form the theatre of human greatness? No government in Europe has commanded monies more plentifully than the government of Holland. As to the United States, the separate states lay taxes directly, and the union calls for taxes by way of requisitions; and is it a fact, that more monies are due in proportion on requisitions in the United States, than on the state taxes directly laid? — It is but about ten years since congress begun to make requisitions, and in that time, the monies, &c. required, and the bounties given for men required of the states, have amounted, specie value, to about 36 millions dollars, about 24 millions of dollars of which have been actually paid; and a very considerable part of the 12 millions not paid, remains so not so much from the neglect of the states, as from the sudden changes in paper money, &c. which in a great measure rendered payments of no service, and which often induced the union indirectly to relinquish one demand, by making another in a different form. Before we totally condemn requisitions, we ought to consider what immense bounties the states gave, and what prodigious exertions they made in the war, in order to comply with the requisitions of congress; and if since the peace they have been delinquent, ought we not carefully to enquire, whether that delinquency is to be imputed solely to the nature of requisitions? ought it not in part to be imputed to two other causes? I mean first, an opinion, that has extensively prevailed, that the requisitions for domestic interest have not been founded on just principles; and secondly, the circumstance, that the government itself, by proposing imposts, &c. has departed virtually from the constitutional system; which proposed changes, like all changes proposed in government, produce an inattention and negligence in the execution of the government in being. I am not for depending wholly on requisitions; but I mention these few facts to shew they are not so totally futile as many pretend. For the truth of many of these facts I appeal to the public records; and for the truth of the others, I appeal to many republican characters, who are best informed in the affairs of the United States. Since the peace, and till the convention reported, the wisest men in the United States generally supposed, that certain limited funds would answer the purposes of the union: and though the states are by no means in so good a condition as I wish they were, yet, I think, I may very safely affirm, they are in a better condition than they would be had congress always possessed the powers of taxation now contended for. The fact is admitted, that our federal government does not possess sufficient powers to give life and vigor to the political system; and that we experience disappointments, and several inconveniencies; but we ought carefully to distinguish those which are merely the consequences of a severe and tedious war, from those which arise from defects in the federal system. There has been an entire revolution in the United States within thirteen years, and the least we can compute the waste of labour and property at, during that period, by the war, is three hundred million of dollars. Our people are like a man just recovering from a severe fit of sickness. It was the war that disturbed the course of commerce, introduced floods of paper money, the stagnation of credit, and threw many valuable men out of steady business. From these sources our greatest evils arise; men of knowledge and reflection must perceive it; — but then, have we not done more in three or four years past, in repairing the injuries of the war, by repairing houses and estates, restoring industry, frugality, the fisheries, manufactures, &c. and thereby laying the foundation of good government, and of individual and political happiness, than any people ever did in a like time; we must judge from a view of the country and facts, and not from foreign newspapers, or our own, which are printed chiefly in the commercial towns, where imprudent living, imprudent importations, and many unexpected disappointments, have produced a despondency, and a disposition to view every thing on the dark side. Some of the evils we feel, all will agree, ought to be imputed to the defective administration of the governments. From these and various considerations, I am very clearly of opinion, that the evils we sustain, merely on account of the defects of the confederation, are but as a feather in the balance against a mountain, compared with those which would, infallibly, be the result of the loss of general liberty, and that happiness men enjoy under a frugal, free, and mild government. Heretofore we do not seem to have seen danger any where, but in giving power to congress, and now no where but in congress wanting powers; and, without examining the extent of the evils to be remedied, by one step, we are for giving up to congress almost all powers of any importance without limitation. The defects of the confederation are extravagantly magnified, and every species of pain we feel imputed to them: and hence it is inferred, there must be a total change of the principles, as well as forms of government: and in the main point, touching the federal powers, we rest all on a logical inference, totally inconsistent with experience and sound political reasoning. It is said, that as the federal head must make peace and war, and provide for the common defence, it ought to possess all powers necessary to that end: that powers unlimited, as to the purse and sword, to raise men and monies, and form the militia, are necessary to that end; and, therefore, the federal head ought to possess them. This reasoning is far more specious than solid: it is necessary that these powers so exist in the body politic, as to be called into exercise whenever necessary for the public safety; but it is by no means true, that the man, or congress of men, whose duty it more immediately is to provide for the common defence, ought to possess them without limitation. But clear it is, that if such men, or congress, be not in a situation to hold them without danger to liberty, he or they ought not to possess them. It has long been thought to be a well founded position, that the purse and sword ought not to be placed in the same hands in a free government. Our wise ancestors have carefully separated them — placed the sword in the hands of their king, even under considerable limitations, and the purse in the hands of the commons alone: yet the king makes peace and war, and it is his duty to provide for the common defence of the nation. This authority at least goes thus far — that a nation, well versed in the science of government, does not conceive it to be necessary or expedient for the man entrusted with the common defence and general tranquility, to possess unlimitedly the powers in question, or even in any considerable degree. Could he, whose duty it is to defend the public, possess in himself independently, all the means of doing it consistent with the public good, it might be convenient: but the people of England know that their liberties and happiness would be in infinitely greater danger from the king’s unlimited possession of these powers, than from all external enemies and internal commotions to which they might be exposed: therefore, though they have made it his duty to guard the empire, yet they have wisely placed in other hands, the hands of their representatives, the power to deal out and controul the means. In Holland their high mightinesses must provide for the common defence, but for the means they depend, in a considerable degree, upon requisitions made on the state or local assemblies. Reason and facts evince, that however convenient it might be for an executive magistrate, or federal head, more immediately charged with the national defence and safety, solely, directly, and independently to possess all the means; yet such magistrate, or head, never ought to possess them, if thereby the public liberties shall be endangered. The powers in question never have been, by nations wise and free, deposited, nor can they ever be, with safety, any where, but in the principal members of the national system: — where these form one entire government, as in Great-Britain, they are separated and lodged in the principal members of it. But in a federal republic, there is quite a different organization; the people form this kind of government, generally, because their territories are too extensive to admit of their assembling in one legislature, or of executing the laws on free principles under one entire government. They convene in their local assemblies, for local purposes, and for managing their internal concerns, and unite their states under a federal head for general purposes. It is the essential characteristic of a confederated republic, that this head be dependant on, and kept within limited bounds by, the local governments; and it is because, in these alone, in fact, the people can be substantially assembled or represented. It is, therefore, we very universally see, in this kind of government, the congressional powers placed in a few hands, and accordingly limited, and specifically enumerated: and the local assemblies strong and well guarded, and composed of numerous members. Wise men will always place the controuling power where the people are substantially collected by their representatives. By the proposed system, the federal head will possess, without limitation, almost every species of power that can, in its exercise, tend to change the government, or to endanger liberty; while in it, I think it has been fully shewn, the people will have but the shadow of representation, and but the shadow of security for their rights and liberties. In a confederated republic, the division of representation, &c. in its nature, requires a correspondent division and deposit of powers, relative to taxes and military concerns: and I think the plan offered stands quite alone, in confounding the principles of governments in themselves totally distinct. I wish not to exculpate the states for their improper neglects in not paying their quotas of requisitions; but, in applying the remedy, we must be governed by reason and facts. It will not be denied, that the people have a right to change the government when the majority chuse it, if not restrained by some existing compact — that they have a right to displace their rulers, and consequently to determine when their measures are reasonable or not — and that they have a right, at any time, to put a stop to those measures they may deem prejudicial to them, by such forms and negatives as they may see fit to provide. From all these, and many other well founded considerations, I need not mention, a question arises, what powers shall there be delegated to the federal head, to insure safety, as well as energy, in the government? I think there is a safe and proper medium pointed out by experience, by reason, and facts. When we have organized the government, we ought to give power to the union, so far only as experience and present circumstances shall direct, with a reasonable regard to time to come. Should future circumstances, contrary to our expectations, require that further powers be transferred to the union, we can do it far more easily, than get back those we may now imprudently give. The system proposed is untried: candid advocates and opposers admit, that it is, in a degree, a mere experiment, and that its organization is weak and imperfect; surely then, the safe ground is cautiously to vest power in it, and when we are sure we have given enough for ordinary exigencies, to be extremely careful how we delegate powers, which, in common cases, must necessarily be useless or abused, and of very uncertain effect in uncommon ones. By giving the union power to regulate commerce, and to levy and collect taxes by imposts, we give it an extensive authority, and permanent productive funds, I believe quite as adequate to the present demands of the union, as excises and direct taxes can be made to the present demands of the separate states. The state governments are now about four times as expensive as that of the union; and their several state debts added together, are nearly as large as that of the union — Our impost duties since the peace have been almost as productive as the other sources of taxation, and when under one general system of regulations, the probability is, that those duties will be very considerably increased: Indeed the representation proposed will hardly justify giving to congress unlimited powers to raise taxes by imposts, in addition to the other powers the union must necessarily have. It is said, that if congress possess only authority to raise taxes by imposts, trade probably will be overburdened with taxes, and the taxes of the union be found inadequate to any uncommon exigencies: To this we may observe, that trade generally finds its own level, and will naturally and necessarily heave off any undue burdens laid upon it: further, if congress alone possess the impost, and also unlimited power to raise monies by excises and direct taxes, there must be much more danger that two taxing powers, the union and states, will carry excises and direct taxes to an unreasonable extent, especially as these have not the natural boundaries taxes on trade have. However, it is not my object to propose to exclude congress from raising monies by internal taxes, as by duties, excises, and direct taxes; but my opinion is, that congress, especially in its proposed organization, ought not to raise monies by internal taxes, except in strict conformity to the federal plan; that is, by the agency of the state governments in all cases, except where a state shall neglect, for an unreasonable time, to pay its quota of a requisition; and never where so many of the state legislatures as represent a majority of the people, shall formally determine an excise law or requisition is improper, in their next session after the same be laid before them. We ought always to recollect that the evil to be guarded against is found by our own experience, and the experience of others, to be mere neglect in the states to pay their quotas; and power in the union to levy and collect the neglecting states’ quotas with interest, is fully adequate to the evil. By this federal plan, with this exception mentioned, we secure the means of collecting the taxes by the usual process of law, and avoid the evil of attempting to compel or coerce a state; and we avoid also a circumstance, which never yet could be, and I am fully confident never can be, admitted in a free federal republic; I mean a permanent and continued system of tax laws of the union, executed in the bowels of the states by many thousand officers, dependent as to the assessing and collecting federal taxes, solely upon the union. On every principle then, we ought to provide, that the union render an exact account of all monies raised by imposts and other taxes; and that whenever monies shall be wanted for the purposes of the union, beyond the proceeds of the impost duties, requisitions shall be made on the states for the monies so wanted; and that the power of laying and collecting shall never be exercised, except in cases where a state shall neglect, a given time, to pay its quota. This mode seems to be strongly pointed out by the reason of the case, and spirit of the government; and I believe, there is no instance to be found in a federal republic, where the congressional powers ever extended generally to collecting monies by direct taxes or excises. Creating all these restrictions, still the powers of the union in matters of taxation, will be too unlimited; further checks, in my mind, are indispensably necessary. Nor do I conceive, that as full a representation as is practicable in the federal government, will afford sufficient security: the strength of the government, and the confidence of the people, must be collected principally in the local assemblies; every part or branch of the federal head must be feeble, and unsafely trusted with large powers. A government possessed of more power than its constituent parts will justify, will not only probably abuse it, but be unequal to bear its own burden; it may as soon be destroyed by the pressure of power, as languish and perish for want of it. There are two ways further of raising checks, and guarding against undue combinations and influence in a federal system. The first is, in levying taxes, raising and keeping up armies, in building navies, in forming plans for the militia, and in appropriating monies for the support of the military, to require the attendance of a large proportion of the federal representatives, as two-thirds or three-fourths of them; and in passing laws, in these important cases, to require the consent of two-thirds or three-fourths of the members present. The second is, by requiring that certain important laws of the federal head, as a requisition or a law for raising monies by excise shall be laid before the state legislatures, and if disapproved of by a given number of them, say by as many of them as represent a majority of the people, the law shall have no effect. Whether it would be adviseable to adopt both, or either of these checks, I will not undertake to determine. We have seen them both exist in confederated republics. The first exists substantially in the confederation, and will exist in some measure in the plan proposed, as in chusing a president by the house, in expelling members; in the senate, in making treaties, and in deciding on impeachments, and in the whole in altering the constitution. The last exists in the United Netherlands, but in a much greater extent. The first is founded on this principle, that these important measures may, sometimes, be adopted by a bare quorum of members, perhaps, from a few states, and that a bare majority of the federal representatives may frequently be of the aristocracy, or some particular interests, connections, or parties in the community, and governed by motives, views, and inclinations not compatible with the general interest. — The last is founded on this principle, that the people will be substantially represented, only in their state or local assemblies; that their principal security must be found in them; and that, therefore, they ought to have ultimately a constitutional controul over such interesting measures. I have often heard it observed, that our people are well informed, and will not submit to oppressive governments; that the state governments will be their ready advocates, and possess their confidence, mix with them, and enter into all their wants and feelings. This is all true; but of what avail will these circumstances be, if the state governments, thus allowed to be the guardians of the people, possess no kind of power by the forms of the social compact, to stop, in their passage, the laws of congress injurious to the people. State governments must stand and see the law take place; they may complain and petition — so may individuals; the members of them, in extreme cases, may resist, on the principles of self-defence — so may the people and individuals. It has been observed, that the people, in extensive territories, have more power, compared with that of their rulers, than in small states. Is not directly the opposite true? The people in a small state can unite and act in concert, and with vigour; but in large territories, the men who govern find it more easy to unite, while people cannot; while they cannot collect the opinions of each part, while they move to different points, and one part is often played off against the other. It has been asserted, that the confederate head of a republic at best, is in general weak and dependent; — that the people will attach themselves to, and support their local governments, in all disputes with the union. Admit the fact: is it any way to remove the inconvenience by accumulating powers upon a weak organization? The fact is, that the detail administration of affairs, in this mixed republic, depends principally on the local governments; and the people would be wretched without them: and a great proportion of social happiness depends on the internal administration of justice, and on internal police. The splendor of the monarch, and the power of the government are one thing. The happiness of the subject depends on very different causes: but it is to the latter, that the best men, the greatest ornaments of human nature, have most carefully attended: it is to the former tyrants and oppressors have always aimed. Source: https://teachingamericanhistory.org/document/federal-farmer-xvii/

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. Source: https://teachingamericanhistory.org/document/federal-farmer-xvi/

Dear sir, Before I proceed to examine particularly the powers vested, or which ought to be, vested in each branch of the proposed government, I shall briefly examine the organization of the remaining branch, the judicial, referring the particular examining of its powers to some future letters. In forming this branch, our objects are — a fair and open, a wise and impartial interpretation of the laws — a prompt and impartial administration of justice, between the public and individuals, and between man and man. I believe, there is no feature in a free government more difficult to be well formed than this, especially in an extensive country, where the courts must be numerous, or the citizens travel to obtain justice. The confederation impowers congress to institute judicial courts in four cases. 1. For settling disputes between individual states. 2. For determining, finally, appeals in all cases of captures. 3. For the trial of piracies and felonies committed on the high seas: And, 4. For the administration of martial law in the army and navy. The state courts in all other cases possess the judicial powers, in all questions arising on the laws of nations, of the union, and of the states individually — nor does congress appear to have any controul over state courts, judges or officers. The business of the judicial department is, properly speaking, judicial in part, in part executive, done by judges and juries, by certain recording and executive officers, as clerks, sheriffs, &c. they are all properly limbs, or parts, of the judicial courts, and have it in charge, faithfully to decide upon, and execute the laws, in judicial cases, between the public and individuals, between man and man. The recording and executive officers, in this department, may well enough be formed by legislative acts, from time to time: but the offices, the situation, the powers and duties of judges and juries, are too important, as they respect the political system, as well as the administration of justice, not to be fixed on general principles by the constitution. It is true, the laws are made by the legislature; but the judges and juries, in their interpretations, and in directing the execution of them, have a very extensive influence for preserving or destroying liberty, and for changing the nature of the government. It is an observation of an approved writer, that judicial power is of such a nature, that when we have ascertained and fixed its limits, with all the caution and precision we can, it will yet be formidable, somewhat arbitrary and despotic — that is, after all our cares, we must leave a vast deal to the discretion and interpretation — to the wisdom, integrity, and politics of the judges — These men, such is the state even of the best laws, may do wrong, perhaps, in a thousand cases, sometimes with, and sometimes without design, yet it may be impracticable to convict them of misconduct. These considerations shew, how cautious a free people ought to be in forming this, as well as the other branches of their government, especially when connected with other considerations equally deserving of notice and attention. When the legislature makes a bad law, or the first executive magistrate usurps upon the rights of the people, they discover the evil much sooner, than the abuses of power in the judicial department; the proceedings of which are far more intricate, complex, and out of their immediate view. A bad law immediately excites a general alarm; a bad judicial determination, though not less pernicious in its consequences, is immediately felt, probably, by a single individual only, and noticed only by his neighbours, and a few spectators in the court. In this country, we have been always jealous of the legislature, and especially the executive; but not always of the judiciary: but very few men attentively consider the essential parts of it, and its proceedings, as they tend to support or to destroy free government: only a few professional men are in a situation properly to do this; and it is often alledged, that instances have not frequently occurred, in which they have been found very alert watchmen in the cause of liberty, or in the cause of democratic republics. Add to these considerations, that particular circumstances exist at this time to increase our inattention to limiting properly the judicial powers, we may fairly conclude, we are more in danger of sowing the seeds of arbitrary government in this department than in any other. In the unsettled state of things in this country, for several years past, it has been thought, that our popular legislatures have, sometimes, departed from the line of strict justice, while the law courts have shewn a disposition more punctually to keep to it. We are not sufficiently attentive to the circumstances, that the measures of popular legislatures naturally settle down in time, and gradually approach a mild and just medium; while the rigid systems of the law courts naturally become more severe and arbitrary, if not carefully tempered and guarded by the constitution, and by laws, from time to time. It is true, much has been written and said about some of these courts lately, in some of the states; but all has been about their fees, &c. and but very little to the purposes, as to their influence upon the freedom of the government. By art. 3. sect. 1. the judicial power of the United States shall be vested in one supreme court, and in such inferior courts, as congress may, from time to time, ordain and establish — the judges of them to hold their offices during good behaviour, and to receive, at stated times, a compensation for their services, which shall not be diminished during their continuance in office; but which, I conceive, may be increased. By the same art. sect. 2. the supreme court shall have original jurisdiction, “in all cases affecting ambassadors, and other public ministers, and consuls, and those in which a state shall be a party, and appellate jurisdiction, both as to law and fact, in all other federal causes, with such exceptions, and under such regulations, as the congress shall make.” By the same section, the judicial power shall extend in law and equity to all the federal cases therein enumerated. By the same section the jury trial, in criminal causes, except in cases of impeachment, is established; but not in civil causes, and the whole state may be considered as the vicinage in cases of crimes. These clauses present to view the constitutional features of the federal judiciary: this has been called a monster by some of the opponents, and some, even of the able advocates, have confessed they do not comprehend it. For myself, I confess, I see some good things in it, and some very extraordinary ones. “There shall be one supreme court.” There ought in every government to be one court, in which all great questions in law shall finally meet and be determined: in Great-Britain, this is the house of lords, aided by all the superior judges; in Massachusetts, it is, at present, the supreme judicial court, consisting of five judges; in New-York, by the constitution, it is a court consisting of the president of the senate, the senators, chancellor and judges of the supreme court; and in the United States the federal supreme court, or this court in the last resort, may, by the legislature, be made to consist of three, five, fifty, or any other number of judges. The inferior federal courts are left by the constitution to be instituted and regulated altogether as the legislature shall judge best; and it is well provided, that the judges shall hold their offices during good behaviour. I shall not object to the line drawn between the original and appellate jurisdiction of the supreme court; though should we for safety, &c. be obliged to form a numerous supreme court, and place in it a considerable number of respectable characters, it will be found inconvenient for such a court, originally, to try all the causes affecting ambassadors, consuls, &c. Appeals may be carried up to the supreme court, under such regulations as congress shall make. Thus far the legislature does not appear to be limited to improper rules or principles in instituting judicial courts: indeed the legislature will have full power to form and arrange judicial courts in the federal cases enumerated, at pleasure, with these eight exceptions only. 1. There can be but one supreme federal judicial court. 2. This must have jurisdiction as to law and fact in the appellate causes. 3. Original jurisdiction, when foreign ministers and the states are concerned. 4. The judges of the judicial courts must continue in office during good behaviour — and, 5. Their salaries cannot be diminished while in office. 6. There must be a jury trial in criminal causes. 7. The trial of crimes must be in the state where committed — and, 8. There must be two witnesses to convict of treason. In all other respects Congress may organize the judicial department according to their discretion; the importance of this power, among others proposed by the legislature (perhaps necessarily) I shall consider hereafter. Though there must, by the constitution, be but one judicial court, in which all the rays of judicial powers as to law, equity, and fact, in the cases enumerated must meet; yet this may be made by the legislature, a special court, consisting of any number of respectable characters or officers, the federal legislators excepted, to superintend the judicial department, to try the few causes in which foreign ministers and the states may be concerned, and to correct errors, as to law and fact, in certain important causes on appeals. Next below this judicial head, there may be several courts, such as are usually called superior courts, as a court of chancery, a court of criminal jurisdiction, a court of civil jurisdiction, a court of admiralty jurisdiction, a court of exchequer, &c. giving an appeal from these respectively to the supreme judicial court. These superior courts may be considered as so many points to which appeals may be brought up, from the various inferior courts, in the several branches of judicial causes. In all these superior and inferior courts, the trial by jury may be established in all cases, and the law and equity properly separated. In this organization, only a few very important causes, probably, would be carried up to the supreme court. — The superior courts would, finally, settle almost all causes. This organization, so far as it would respect questions of law, inferior, superior, and a special supreme court, would resemble that of New-York in a considerable degree, and those of several other states. This, I imagine, we must adopt, or else the Massachusetts plan; that is, a number of inferior courts, and one superior or supreme court, consisting of three, or five, or seven judges, in which one supreme court all the business shall be immediately collected from the inferior ones. The decision of the inferior courts, on either plan, probably will not much be relied on; and on the latter plan, there must be a prodigious accumulation of powers and business in all cases touching law, equity and facts, and all kinds of causes in a few hands, for whose errors of ignorance or design, there will be no possible remedy. As the legislature may adopt either of these, or any other plan, I shall not dwell longer on this subject. In examining the federal judiciary, there appears to be some things very extraordinary and very peculiar. The judges or their friends may seize every opportunity to raise the judges salaries; but by the constitution they cannot be diminished. I am sensible how important it is that judges shall always have adequate and certain support; I am against their depending upon annual or periodical grants, because these may be withheld, or rendered too small by the dissent or narrowness of any one branch of the legislature; but there is a material distinction between periodical grants, and salaries held under permanent and standing laws: the former at stated periods cease, and must be renewed by the consent of all and every part of the legislature; the latter continue of course, and never will cease or be lowered, unless all parts of the legislature agree to do it. A man has as permanent an interest in his salary fixed by a standing law, so long as he may remain in office, as in any property he may possess; for the laws regulating the tenure of all property, are always liable to be altered by the legislature. The same judge may frequently be in office thirty or forty years; there may often be times, as in cases of war, or very high prices, when his salary may reasonably be increased one half or more; in a few years money may become scarce again, and prices fall, and his salary, with equal reason and propriety be decreased and lowered: not to suffer this to be done by consent of all the branches of the legislature, is, I believe, quite a novelty in the affairs of government. It is true, by a very forced and unnatural construction, the constitution of Massachusetts, by the governor and minority in the legislature, was made to speak this kind of language. Another circumstance ought to be considered; the mines which have been discovered are gradually exhausted, and the precious metals are continually wasting: hence the probability is, that money, the nominal representative of property, will gradually grow scarcer hereafter, and afford just reasons for gradually lowering salaries. The value of money depends altogether upon the quantity of it in circulation, which may be also decreased, as well as encreased, from a great variety of causes. The supreme court, in cases of appeals, shall have jurisdiction both as to law and fact: that is, in all civil causes carried up [to] the supreme court by appeals, the court, or judges, shall try the fact and decide the law. Here an essential principle of the civil law is established, and the most noble and important principle of the common law exploded. To dwell a few minutes on this material point: the supreme court shall have jurisdiction both as to law and fact. What is meant by court? Is the jury included in the term, or is it not? I conceive it is not included: and so the members of convention, I am very sure, understand it. Court, or curia, was a term well understood long before juries existed; the people, and the best writers, in countries where there are no juries, uniformly use the word court, and can only mean by it the judge or judges who determine causes: also, in countries where there are juries we express ourselves in the same manner; we speak of the court of probate, court of chancery, justices court, alderman’s court, &c. in which there is no jury. In our supreme courts, common pleas, &c. in which there are jury trials, we uniformly speak of the court and jury, and consider them as distinct. Were it necessary I might site a multitude of cases from law books to confirm, beyond controversy, this position, that the jury is not included, or a part of the court. But the supreme court is to have jurisdiction as to law and fact, under such regulations as congress shall make. I confess it is impossible to say how far congress may, with propriety, extend their regulations in this respect. I  conceive, however, they cannot by any reasonable construction go so far as to admit the jury, on true common law principles, to try the fact, and give a general verdict. I have repeatedly examined this article: I think the meaning of it is, that the judges in all final questions, as to property and damages, shall have complete jurisdiction, to consider the whole cause, to examine the facts, and on a general view of them, and on principles of equity, as well as law, to give judgment. As the trial by jury is provided for in criminal causes, I shall confine my observations to civil causes — and in these, I hold it is the established right of the jury by the common law, and the fundamental laws of this country, to give a general verdict in all cases when they chuse to do it, to decide both as to law and fact, whenever blended together in the issue put to them. Their right to determine as to facts will not be disputed, and their right to give a general verdict has never been disputed, except by a few judges and lawyers, governed by despotic principles. Coke, Hale, Holt, Blackstone, De Lo[l]me, and almost every other legal or political writer, who has written on the subject, has uniformly asserted this essential and important right of the jury. Juries in Great-Britain and America have universally practised accordingly. Even Mansfield, with all his wishes about him, dare not directly avow the contrary. What fully confirms this point is, that there is no instance to be found, where a jury was ever punished for finding a general verdict, when a special one might, with propriety, have been found. The jury trial, especially politically considered, is by far the most important feature in the judicial department in a free country, and the right in question is far the most valuable part, and the last that ought to be yielded, of this trial. Juries are constantly and frequently drawn from the body of the people, and freemen of the country; and by holding the jury’s right to return a general verdict in all cases sacred, we secure to the people at large, their just and rightful controul in the judicial department. If the conduct of judges shall be severe and arbitrary, and tend to subvert the laws, and change the forms of government, the jury may check them, by deciding against their opinions and determinations, in similar cases. It is true, the freemen of a country are not always minutely skilled in the laws, but they have common sense in its purity, which seldom or never errs in making and applying laws to the condition of the people, or in determining judicial causes, when stated to them by the parties. The body of the people, principally, bear the burdens of the community; they of right ought to have a controul in its important concerns, both in making and executing the laws, otherwise they may, in a short time, be ruined. Nor is it merely this controul alone we are to attend to; the jury trial brings with it an open and public discussion of all causes, and excludes secret and arbitrary proceedings. This, and the democratic branch in the legislature, as was formerly observed, are the means by which the people are let into the knowledge of public affairs — are enabled to stand as the guardians of each others rights, and to restrain, by regular and legal measures, those who otherwise might infringe upon them. I am not unsupported in my opinion of the value of the trial by jury; not only British and American writers, but De Lo[l]me, and the most approved foreign writers, hold it to be the most valuable part of the British constitution, and indisputably the best mode of trial ever invented. It was merely by the intrigues of the popish clergy, and of the Norman lawyers, that this mode of trial was not used in maritime, ecclesiastical, and military courts, and the civil law proceedings were introduced; and, I believe, it is more from custom and prejudice, than for any substantial reasons, that we do not in all the states establish the jury in our maritime as well as other courts. In the civil law process the trial by jury is unknown; the consequence is, that a few judges and dependant officers, possess all the power in the judicial department. Instead of the open fair proceedings of the common law, where witnesses are examined in open court, and may be cross examined by the parties concerned — where council is allowed, &c. we see in the civil law process judges alone, who always, long previous to the trial, are known and often corrupted by ministerial influence, or by parties. Judges once influenced, soon become inclined to yield to temptations, and to decree for him who will pay the most for their partiality. It is, therefore, we find in the Roman, and almost all governments, where judges alone possess the judicial powers and try all cases, that bribery has prevailed. This, as well as the forms of the courts, naturally lead to secret and arbitrary proceedings — to taking evidence secretly– exparte, &c. to perplexing the cause — and to hasty decisions: — but, as to jurors, it is quite impracticable to bribe or influence them by any corrupt means; not only because they are untaught in such affairs, and possess the honest characters of the common freemen of a country; but because it is not, generally, known till the hour the cause comes on for trial, what persons are to form the jury. But it is said, that no words could be found by which the states could agree to establish the jury-trial in civil causes. I can hardly believe men to be serious, who make observations to this effect. The states have all derived judicial proceedings principally from one source, the British system; from the same common source the American lawyers have almost universally drawn their legal information. All the states have agreed to establish the trial by jury, in civil as well as in criminal causes. The several states, in congress, found no difficulty in establishing it in the Western Territory, in the ordinance passed in July 1787. We find, that the several states in congress, in establishing government in that territory, agreed, that the inhabitants of it, should always be entitled to the benefit of the trial by jury. Thus, in a few words, the jury trial is established in its full extent; and the convention with as much ease, have established the jury trial in criminal cases. In making a constitution, we are substantially to fix principles. — If in one state, damages on default are assessed by a jury, and in another by the judges — if in one state jurors are drawn out of a box, and in another not — if there be other trifling variations, they can be of no importance in the great question. Further, when we examine the particular practices of the states, in little matters in judicial proceedings, I believe we shall find they differ near as much in criminal processes as in civil ones. Another thing worthy of notice in this place — the convention have used the word equity, and agreed to establish a chancery jurisdiction; about the meaning and extent of which, we all know, the several states disagree much more than about jury trials — in adopting the latter, they have very generally pursued the British plan; but as to the former, we see the states have varied, as their fears and opinions dictated. By the common law, in Great Britain and America, there is no appeal from the verdict of the jury, as to facts, to any judges whatever — the jurisdiction of the jury is complete and final in this; and only errors in law are carried up to the house of lords, the special supreme court in Great Britain; or to the special supreme courts in Connecticut, New-York, New-Jersey, &c. Thus the juries are left masters as to facts: but, by the proposed constitution, directly the opposite principles is established. An appeal will lay in all appellate causes from the verdict of the jury, even as to mere facts, to the judges of the supreme court. Thus, in effect, we establish the civil law in this point; for if the jurisdiction of the jury be not final, as to facts, it is of little or no importance. By art. 3. sect. 2. “the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States,” &c. What is here meant by equity? what is equity in a case arising under the constitution? possibly the clause might have the same meaning, were the words “in law and equity,” omitted. Cases in law must differ widely from cases in law and equity. At first view, by thus joining the word equity with the word law, if we mean any thing, we seem to mean to give the judge a discretionary power. The word equity, in Great Britain, has in time acquired a precise meaning — chancery proceedings there are now reduced to system — but  this is not the case in the United States. In New-England, the judicial courts have no powers in cases in equity, except those dealt out to them by the legislature, in certain limited portions, by legislative acts. In New-York, Maryland, Virginia, and South Carolina, powers to decide, in cases of equity, are vested in judges distinct from those who decide in matters of law: and the states generally seem to have carefully avoided giving unlimitedly, to the same judges, powers to decide in cases in law and equity. Perhaps, the clause would have the same meaning were the words, “this constitution,” omitted: there is in it either a careless complex misuse of words, in themselves of extensive signification, or there is some meaning not easy to be comprehended. Suppose a case arising under the constitution — suppose the question judicially moved, whether, by the constitution, congress can suppress a state tax laid on polls, lands, or as an excise duty, which may be supposed to interfere with a federal tax. By the letter of the constitution, congress will appear to have no power to do it: but then the judges may decide the question on principles of equity as well as law. Now, omitting the words, “in law and equity,” they may decide according to the spirit and true meaning of the constitution, as collected from what must appear to have been the intentions of the people when they made it. Therefore, it would seem, that if these words mean any thing, they must have a further meaning: yet I will not suppose it intended to lodge an arbitrary power or discretion in the judges, to decide as their conscience, their opinions, their caprice, or their politics might dictate. Without dwelling on this obscure clause, I will leave it to the examination of others. Source: https://teachingamericanhistory.org/document/federal-farmer-xv/