THE ANTI- FEDERALIST: Writings by the Opponents of the Constitution. An Abridgment,by Murray Dry,of The Complete Anti-Federalist Edited, with Commentary and Notes, 0226775658

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Writings by the Opponents o f the Constitution

Edited by HERBERT J. STORING Selected by Murray Dry from The Complete Anti-Federalist

The Anti-Federalist

The Anti-Federalist A n Abridgm ent , by Murray Dry , o f The Com plete Anti-Federalist Edited, with Commentary and Notes, by

Herbert J. Storing

T h e U n iv e rsity o f C h ic a g o Press C h ica g o a n d L o n d o n

The University of Chicago Press. Chicago 60637 The University of Chicago Press. Ltd.. London © 1981.1985 by The University of Chicago All nghu reserved. Published 1985 Printed in the United States of .America 13 12 11 10 11 12

ISBN: 0-226-77565-8 (paper)

Library o f Con%res\ Cillatoging-in-Publicanon Data Complete Ami-Federalist. Selections. The Arui-Federalist. Bibliography: p Includes index. 1. United Stales— Constitutional history— Sources. 2. Political science— United States— History— Sources 3. United States— Constitutional law. I. Dry. Murray. II Storing.Herbert J., 1928-77 HI. Title. JK155.C6525 1985 342-73029 8416207 34730229

@ The paper used in this publication meets the minimum requirements of the American National Standard for fnfonnatiun Sciences— Permanence 01 Paper for Printed Library Materials. ANSI Z 3 N ew Y o rk tn 1788.* There are three groups o f Centinel essays. The first eighteen numbers, published between 5 O ctober 17872nd 9 April 1788, discuss the principles of the new Constitution and o f its advocates. Papers X IX to X X IV , published in O ctober and N ovem ber 1788. were aimed at influencing the election o f representatives to the new Congress, the Constitution having been adopted: they are concerned chiefly with party politics in Pennsylvania, past and present, and with the financial affairs o f Robert Morris and his associates. Finally, in the autumn o f 1789. there appeared another dozen essays under the heading “ Centinel R evived ,” which deal with the proposed amend­ ments to the federal Constitution and with the state constitution and stale political affairs. Only the first group is reprinted here. The Centinel letters were generally attributed at the lim e to Judge George B ryan, a prominent Pennsylvania legislator and judge, who w as the princi­ pal leader o f the Anti-Federalist5 in his state. H ow ever, Judge B ryan 's son. Samuel, claimed to be the author in several private letters;4 and it is now generally thought that he was the author, although reflecting the view s o f and no doubt working in d o se collaboration with his father.9 Centinel does not present system atic arrangement and development o f argument, like. say. the letters o f The Federal Farmer, o r the essays o f C ato or Brutus: his essays are rather like a scries o f partially spontaneous speeches made over a period o f time to a shifting and som ewhat inattentive audience. Variations on a set o f themes rather than a schematic develop­ ment o f themes is Centinel*s style. T ypically he starts an essay by going o ver some o f the ground of the last on e. som etim es moving on to new

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Centinel matters, sometimes developing themes barely mentioned before, sometimes substantially repeating earlier arguments. Centinel tends to lay his heaviest em phasis on rather shallow statements o f certain standard themes— the im­ portance o f resisting the influence o f great names, the critical position o f the press and the attempts by Federalists to stifle il. the various nefarious prac­ tices indulged in by the friends o f the Constitution, etc. The more significant and substantial arguments typically spin out from these primary themes Except for their length and their notoriety. it can hardly be maintained, as Konkle attempts to do. that "th e se papers at once took rank, on their side, with The Federalist papers on the other.” 6 There are substantial and im­ portant arguments, in addition to information o f a historical interest, scat­ tered throughout the papers; but the papers do not. taken as a w hole, com ­ pare in quality with the best Am i-Federalist writing, to say nothing o f The Federalist. The first essay is indeed o f major importance in the corpus o f Anti-Federal]st writings; the second essay is important: the fourth, fifth, sixth, and eleventh contain material o f interest to the student o f AntiFederalist ideas: the remaining essay s will properly be passed o ver by most non specialist readers. There follows a b n e f description o f the content of each essay. In his first essay. Centm el. after urging the need for dispassionate and deliberate examination, turns to a discussion o f John Adam s' principle of balanced government. Centinel objects that, first, there is not human wis­ dom enough to construct such a government: second, it would not last: third, it would not, in any case, answer the purpose o f preserving liberty. The correct principle o f free government is responsibility o f the government to the people where the people are virtuous and property is pretty equally distributed. Thus the best government has a simple structure, short terms o f office, rotation, etc. T h e proposed Constitution is neither balanced, as Adams wants, nor responsible, as Centinel thinks best. Centinel next turns to the powers o f the C ongress under the new Constitution, concluding with the warning that it is the opinion o f all writers that a very extensive country cannot be governed on dem ocratic principles except by a confederation o f a number o f sm aller republics (2.7 IT-19I. He then discusses the structure o f the new governm ent, concluding that the Senate will be the great efficient body and that the governm ent will be in practice an irresponsible aristoc­ racy. Finally Centinel objects that no provision has been made for the liberty o f the press or for jury trial. Repeating (he need for fundamental and free discussion, free o f the “ splendor o f names,” Centinel turns in his second essay to a pornlby-poinl refutation o f one o f the most influential Federalist statements. James Wil­ son's brief address to the citizens o f Philadelphia on 6 O ctober.7 Centinel argues that the pow ers o f the federal governm ent, particularly in the area o f taxation and the judiciary, will destroy the states and endanger the freedom o f the press and personal liberty, which are unprotected by a bill o f rights.

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L euer I He argues that no standing army should be permitted in lime o f peace except with the vote o f two-thirds o f the legislature, that the Senate will becom e the nucleus o f a permanent aristocracy, that the provisions for amendment are illusory, and that the opposition to the Constitution, far from consisting of interested men. includes the respectable yeom en, a number o f the members o f the Philadelphia Convention, and the majority o f the Congress. The third essay begins with repetition o f earlier arguments about the importance o f the decision to be made, the need for fundamental investiga­ tion. and the dubious motives o f the Federalists. Cem inel describes the events leading to the Constitution and its ratification in Pennsylvania, which show an intention to establish a new permanent aristocracy, hidden by the old forms. He goes on to criticize the pow er given to the Congress to alter state regulations regarding the tim es, places, and manner o f holding ele c ­ tions for the federal congress, for calling forth the militia, and for protecting the slave trade for a period o f tw enty years— this last being the only significant contribution o f this paper (2.7.76) He concludes with an expres­ sion o f surprise at Quaker support o f the Constitution and a reference to Brutus' discussion o f the impracticability o f maintaining a free government over so extensive a territory. The fourth essay is more substantial. Here Centinel contends that the present difficulties o f the United States arc due to the enorm ous demands o f financing the Revolution raiher than lo intrinsic deficiencies in the Articles of Confederation, Warning against the danger o f governing overm uch and thus weakening the people's sense o f obligation and d uly, so important in free government. Centinel argues that the only amendment necessary is one giving Congress the pow er to lay an impost on com m erce and to regulate trade He concludes by yet again discoursing on the secrecy with which the Constitution was formulated, the stifling o f discussion, the reliance on great names, the exaggeration o f present distresses, the attempt to represent the new government as the only alternative, the weight o f the opposition, and the need for reconsideration The fifth essay is c a s t in the form o f a reply to a remark by James Wilson in the Pennsylvania ratifying convention that a consolidation o f the United States would be improper. It is largely a repetition o f arguments made in numbers I and I) about the extensive pow ers o f the general government under the new Constitution, bui Centinel discusses the “ necessary and proper’' clause for the first time and rebuts Wilson’ s argument that the Constitution requires the preservation o f the stales b y showing that the states might becom e mere boards o f election and eventually (by means o f C o n g r e ss's ultim ate p o w er to p rovid e fo r e le c tio n s) be elim in ated altogether. This paper contains b n e f but interesting rem arks on dual sovereignty (2.7.99-too) and on the object o f governm ent being lo check and control the ambitious and designing (2 .7.tot). Commenting on the “ incredible transition" o f a people once fuU o f zest

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Centinel for liberty now about to sacrifice it. ignoring acknowledged danger in the new Constitution “ in order to reap the golden harvest o f regulated com­ m erce/' Centincl expatiates in his sixth essay on the lust o f dominion and the need to guard against it in establishing political system s: “ the great end o f civil governm ent is to protect the weak from the oppression o f the pow ­ erful to put ev ery man upon the level o f equal lib e r ty .__ “ (2.7.107), The seventh essay contains nothing o f substance. CentineJ goes beyond his earlier remarks only in the strength o f his denunciation o f the Penn­ sylvania Federalists and in his suggestion that, despite the favorable action o f the Pennsylvania convention, the people, aroused b y “ the enlightened pen o f patriotism /' will “ assert their liberty, if necessary, by the sw ord" (2.7.116). He ends by calling for a second convention. The eighth essay contains further reflections on the benefits o f freedom, the dangers o f the new Constitution, the corrupt character and treasonable activities o f the advocates o f the Constitution, concealed behind such re­ spected names as Washington. The essay adds little to previous discussions except violence o f language and a remark on the character o f the merchant who, immersed in his narrow schem es o f wealth. Is the last to see a threat to public liberty (2.7.126), E ssay IX opens with praise o f the Pennsylvania constitution a s the triumph o f patriotism o ver ambition, a victory which the well-bom few seek to overturn. The Constitution contains a mere pretense o f reservations in favor o flib e rty and is in fact a surrender at will and pleasure to our rulers. T h e illicit activities o f the Federalists are further traced. The tenth essay describes the success o f the press in rousing the people to the dangers o f the Constitution and the reaction o f James Wilson and the Federalists in establishing a com m ittee to collect funds to increase the stream o f Federalist propaganda and to prepare for the use o f force i f n eces­ sary. in his eleventh essay Centine I returns to more system atic argument. There are three arguments chiefly relied upon by the advocates o f the C on ­ stitution: (1) che distresses o f the com m unity. (2) the evils o f anarchy, wc not already sec. that the inhabitants in a mimhci o f larger stales, who are remote Irom the seat o f governm ent, ate loudly com plaining o f the in con ven icn cics and d is­ advantages they arc subjected to on this account, and that, to enjoy the

2.7.20

com forts ot local government they are separating into smaller divisions.' Having taken a review o f the pow ers. I shall now examine the construc­ tion o f the proposed generul government A n 1 sect, 1. " A ll legislative powers herein granted shall be vested in a Congress o f the United States, which shall consist o f a senate and house o f representatives By another section, the president (the pnncipal executive officer) has a conditional controul over their proceedings Sect. 2. " T h e house o f representatives shall he com posed o f members chosen every second year by the people of the several states. Ihc number o f representatives shall not exceed one for every v>.o00 inhabitants." The senate, the other constituent branch o f the legislature, is formed by the legislature o f each state appointing tw o senators, for the term of six years

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The executive power by Art 2, sec 1 is to he vested in a president o f the United States of A m enca. elected for four years: See. 2 gives him "pow et iM

Letter 1 by and with the consent o f the senate to make treaties, provided two thirds o f the senators present concur; and he shall nominate, and by and with the advice and consent o f the senate, shall appoint am bassadors, other public ministers and consuls, judges o f the Supreme C ourt, and all other officers o f the United States, whose appointments are not herein otherwise provided for. and which shall be established by law, etc. And by another section he has the absolute pow er or granting reprieves and pardons for treason and all other high crimes and misdemeanors, except in case o f impeachment. The foregoing arc the outlines o f the plan. Thus we see, the house o f representatives, are on the part o f the people to

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balance the senate, who l suppose will be com posed o f the better sort, the well born. etc. The number o f the representatives (being only one for every 30.000 inhabitants) appears to be too few . either to communicate the requi­ site information, o f the wants, local circum stances and sentiments o f so extensive an empire, or to prevent corruption and undue influence, tn the exercise o f such great powers; the term for which they arc to be chosen, too long to preserve a due dependence and accountability to their constituents, and the mode and places o f their election not sufficiently ascertained, for as Congress have the controul over both, they may govern the choice, by ordering the representatives o f a whole state, to be fle eted in one place, and that too may be the most inconvenient. The senate, the great efficient body in this plan o f governm ent, is con­ stituted on the most unequal principles. The smallest state in the union has equal weight with the great states o f Virginia. M assachusetts, or Pennsyl­ vania— The Senate, besides its legislative functions, has a very considerable

3 .7.23

share in the Executive; none o f the principal appointments to office can be made without its advice and consent. The term and mode o f its appoint­ ment. will lead to permanency; the members are chosen for six years, the mode is under the controul o f Congress, and as there is no exclusion by rotation, they may be continued for life, which, from their extensive means o f influence, would follow o f course. The President, who would be a mere pageant o f state, unless he coincides with the view s o f the Senate, would either becom e the head o f the aristocratic junto in that body, or its minion: besides, their influence being the most predominant, could the best secure his re-election to office. And from his pow er o f granting pardons, he might skreen from punishment the most treasonable attempts on ihe liberties of the people, when instigated by Ihe Senate. From this investigation into the organization o f this governm ent, it ap­

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pears that it is devoid o f all responsibility or accountability to the great body o f the people, and that so far from being a regular balanced governm ent, it would be in practice a permanent a r i s t o c r a c y . The framers o f iif.J actuated by the true spirit o f such a governm ent, which ever abominates and suppresses all free enquiry and discussion, have made no provision for the liberty o f ihe press, that grand palladium o f freedom, and scourge o f tyrants: but observed a total silence on that head. It

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2-7-2S

Ccntinel is the opinion o f some great writers, that if the liberty o f the press, by an institution o f religion, or otherwise, could be tendered sacred, even in Tur­ key, that despotism would % before il.* And it is worthy o f remark, that there is no declaration o f pcrsonaJ rights, premised in most free con­ stitutions: and that trial by ju ry in civil cases is taken aw ay: for what other construction can be put-on the follow ing, viz. Article HI, Sect. 2d. " In all cases affecting am bassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases above mentioned, ibe Supreme Court shall have appellate jurisdiction, both as to law and f a c t ? " It would be a novelty in jurisprudence, as w ell as evidently im proper to allow an appeal from the verdict o f a ju ry, on the matter o f fact; therefore, it implies and

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allow s o f a dismission o f the ju ry in civil cases, and especially when it is considered, that ju ry trial in criminal cases isexp resly stipulated for, but not in civil cases. But our situation is represented to b e so critically dreadful, that, how ever reprehensible and exceptionable the proposed plan o f government may be. there is no alternative, betw een the adoption o f it and absolute ruin.— My fellow citizens, things axe not at that crisis, it is the argument o f tyrants: the present distracted state o f Europe secures us from injury on that quarter, and a s to dom estic distentions. we have not so much to fear from them, as to precipitate us into this form o f governm ent, without it is a safe and a proper one. For remember, o f all possible evils, that o f despotism is the worst and the most to be dreaded.

2.7.27

Besides, it cannot be supposed, that the first essay on so difficult a sub­ je c t, is $0 well digested, as il ought to be.— if the proposed plan, after a mature deliberation, should meet the approbation o f the respective States, (he matter will end; but i f it should be found to be fraught with dangers and inconvciuencies. a future general Convention being in possession o f the objections, will be the better enabled to plan a suitable government. W ho’s here so base, that would a bondman be? I f any, speak; fo r him have / offended. W ho's here so vile, that will not love his country? I f any. speak, fo r him have / offended Ccntinel.

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Letter 1 1. Pennsylvania Constitution o f 177$. Declaration of Rights, arts. 10, 11. 12. 2 Centinel goes further here m his criticism of Washington and Franklin than most Ami-Federalists thought prudent, and he was strongly criticized on this account. Cf A Federalist, in the PhiladelphiaIndependent Gazetteer. 25 October 1787 (McMastcr and Stone t68). Resisting the weight of these venerable statesmen provided one of the Anti-Federalists' major rhetorical problems. The following Federalist appeal.-exag­ gerated in style but characteristic in substance, was made by One of the Four Thousand, writing in the Independent Gazetteer 15 October 1787 (McMastcr and Stone 1 1> 1R): ’ Freemen of Pennsylvania, consider the character and services o f the men who made this government. Behold the venerable F r a n k l i n , in the 70th year of his age. cooped up in the cabin of a small vessel, and exposing himself 10 the dangers of a passage or the ocean, crowded with British cruisers, in a winter month, in order to solicit from the court of France that aid. which finally enabled America to close the war with so much success and glory— and then say. is it possible that this man would set his hand to a constitution thai would endanger your liberties7 From this aged servant of the public turn your eyes to ihc illustrious American hero, whose name has ennobled human nature— 1 mean our beloved W a s h i n g t o n . Behold him. in the year 1775. taking leave of his happy family and peaceful retreat, and flying to the relief o f a distant, and at ihat time an unknown pan of the American continent See him uniting and cementing an army, composed o f the citizens of thirteen Males, into a band of brother* Follow him into the field of battle, and behold him the first in danger, and the last out of it. Follow him into his winter quartern and see him sharing in the hunger, cold and fatigues of every soldier in his army. Behold his fortitude in adversity, his moderation ir> victory, and Hi* tenderness and respect upon all occa­ sions for the civil power of his country But above all. turn your eyes to that illustri­ ous scene he exhibited at Annapolis in 1781. when he resigned his commission, and laid his sword at the feet of Congress, and afterwards resumed the toils of an Ameri­ can farmer on the banks of the Potomac. Survey, my countrymen, these illu«nous exploits of patriotism and virtue, and then say. is it possible that the deliverer of our country would have recommended an unsafe form of government for Ihat liberty, for which he had for eight long years contended with such unexampled firmness, con­ stancy and magnanimity." For other Federalists who stress the respectability of the framers, and particularly Washington and Franklin, sec McMastcr and Stone 117. 129. 136. t 68: Ford. Essays 23. 26: Ford. Pamphlets 64. 74. 2Ji. 24J-47 See Federal Republican 3.6.5 n. 4. The Anti-Federalists frequently shared their opponents’ high opinion o f the framers The Federal Farmer (V 2.8.62) thought that "America prob­ ably never will be an assembly of men o f a like number, more respectable.’ There were, however, frequent criticisms. Sec Martin 2.4.13. **-20:C2to I. 2.6 5-6: Brutus I. 2.9 i- j; Old Whig VII. 3.3.41-42: Arislocrptis j . 16.1-3; Yeomanry of Mas­ sachusetts 4 »9- t-j: American 4.20.1-3: Countryman from Dutchess County 6.6.2-43 John Adams. Defence o f the Constitutions o f Government o f (he United States. The first volume o f the Defence was published in England in 1787. arriving in the United States "in the midst of the agitation caused by the assembling of the conven­ tion to form the federal constitution.’* Editorial note. John Adams. Works IV, 275-76. Two more volumes of the Defence followed in 1788 4 See the ' ‘ Preface" of the first volume of Adam.*' Defence (Works IV. 283!? >; Letters V. XXIII (ibid. 284, 312. 380-82); Conclusion (ihid. 579 ff.); and Thoughts on Government (17761 (ibid 193 ft). While some Anti-Federalists join Centinel in his opposition to bai&ncrd government (see Brutus XVI. 1.9.202; (Maryland) Farmer V. s. 1.71-72; Lowndes 5 12.4; Impartial Examiner 5.14.33-40; Republicus 5.13.7; Mon­ roe 5.21.19-28). others display views very similar to Adams' (sec Federal Farmer VII, 2.8.97 n. 60). Note that Centinel. while opposing a balancing of orders, emphati­ cally supports the principle o f separation o f powers. See II. 2 7 50 and n. 29. 5. A Federalist writer replied; "The Centinel asserts, that responsibility in the rulers is the best security the people can have o f their rights Now were this true, every discerning person will see that there is as great a responsibility in this plan as if all the powers of government were blended in one body of men- But the assertion is false. Interest is (he greatest tic that one man can have on another, 1 mean taking mankind m general. And for the truth of this t appeal to your own experience and

Centinel observation. The thief, the robber kaows that he is responsible to the Mate, and in danger of the halter or the wheel-barrow. yet this does not influence his conduct, but convince him in any particular instance that it is more for his interest to forbear this practice, and he will, for that time, be honest. According to the proposed plan, the interest of the rulers and the ruled are the same: they never can be separated, for L£«y are all one mass, having no difference o f rights or privileges; or. as 1 satd before, it is the people governing themselves; and therefore their rijtfila will be secure.” A Citi­ zen. Carlisle (Pennsylvania) Gazette 24 October 1787. 6. The argument in this section is repeated and somewhat elaborated in V, 2.7.96. Cf. also H. 2.7.40 7 . See Cato HI. 2.6.16 a. 11. 8. See {Gordon and TrenchardJ, Cato's Letters III, no. 71: "In Turky. Printing is forbid, lest by Ms Means common Sense might get the better of Violence, and be too hard for the Imperial Butcher." 9. Shakespeare, Julius Caesar act 3, sc. 3.

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Observations Leading to a Fair Examination o f the System O f Government Proposed by the Late Convention; And to Several Essential and Necessary Alterations in It. In a Number o f Letters from the Federal Farmer to the Republican n*i

and A n A d d itio n a l N u m b e r o f L e tte r s F rom th e F e d e r a l F a rm er to th e R e p u b lic a n L ea d in g to a F a ir E xa m in a tio n o f th e S y stem o f G o v ern m en t P r o p o s e d by th e L a te C o n v e n tio n : To Several Essential and Necessary Alterations in It; A n d C a lc u la te d to illu s tr a te a n d S u p p o rt th e P r in c ip le s A n d Positions Laid Down in the Preceding Letters 1788

Letters I - V I l and X V l - X V l l The O bservations o f The Federal Farmer are generally, and correctly, con­ sidered 10 be one o f the ablest Anti-Federalist pieces: they deserve to be read fully and carefully by any student o f Anti-Federalist thought. Contrary to a common impression, the letters were surprisingly little reprinted in the newspapers, apparently only the Poughkeepsie Country Journal printing the whole series. But they enjoyed wide popularity in pamphlet form .1 Four editions totaling, according to the publisher, several thousands o f the pam­ phlet were sold in a few months: and in January 1788 the author published An Additional Number o f Letters, which, being longer and more diffuse, apparently enjoyed less success. The texts o f the original pamphlets are followed h ere.1 Paul L eicester Ford printed only the original five letters, finding the Additional Letters largely repetitious. Forrest M cDonald gencr-

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The Federal Farmer ally agreed and printed only four o f the Additional Letter* in his 1962 pa­ perback edition J There is no doubt that there is much repetition and that the Additional Letters are som ewhat loosely constructed: but there is scarcely a letter that does not contain material o f the first Importance, and it is a mistake to confine on e's study o f The Federal Farmer’s arguments to the first five letters. One o f the best criticism s o f these letters was made by Timothy Pickering in a letter to Charles Tillinghast dated 24 December 1787. T h ey were also review ed in Noah W ebster’ s Am erican Museum * The Federal Farmer is generally supposed to have been Richard HenryL ee. but this was unequivocally denied by William W. C rosskey in his Politics and the C onstitution.' C ro sskey promised to discuss the matter in a la te r vo lu m e, w h ic h , u n fo rtu n a te ly , w a s n e v e r p u b lish ed ,* W hile C ro ssk ey’ s case against Lee '$ authorship does not appear to have been verystrong. neither, it turns out. is the case to support the usual view The present editor's review o f (he evidence was at an advanced stage when he w as pleased to d iscover that Gordon W oo d's independent and often parallel investigation, also stimulated by C ro ssk ey ’ s remark, had led him too to doubt the solidity o f the usual attribution/ Wood makes a powerful and substantial rebuttal to ihe usual assumption that L e e ’s thought and style are evident in The Federal Farmer. The reader may make his own comparison o f The Federal Farmer and Lee s letter to Governor Randolph, also printed here.* I he yield o f such a comparison seem s to be. generally speaking, many differences but none thai are flatly contradictory, and many- similarities, hue none that were not shared with many other Anti-Federal writers. Perhaps most telling against the case for L e e 's authorship is the fact that the primary concern o f The Federal Farmer is the question o f consolidation and the destruction o f the states, about which 1-ee’s letter says nothing. T his is a puzzling difference, and it seems to have been the source o f C ro ssk ey’ s doubt. O f course to attempt to deny, and especially to establish, authorship on such grounds is an extrem ely treacherous business. L e e ’s private letters during the fall o f £787 and the first half o f 1788 show' many points o f similarity with The Federal Farmer (though no more, perhaps, than with several other Anti-Federal writers), and they demonstrate in particular that L ee. like The Federal Farmer, was concerned with the issue o f consolidation and doubtful that a single gov­ ernment could extend over the w hole United S tates.’ C rosskey s contention that L ee’s opinion changed shortly before the Virginia ratifying convention, while not without some foundation, is not very persuasive.10 Y et it is strik­ ing that L ee docs not in his official letter o f opposition give any attention to the argument that is most prominent in the Observations. Lee is positively identified as The Federal Farm er in a piece by New England published in Ihe Connecticut O uirunt on 24 December 1787. This piece was quite widely reprinted and seem s to have given rise to a handful of essays in M assachusetts in which L ee is named as T he Federal F a n n er."

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Letters This is probably also the source or George C ab ot's penciled note, in his copy of the Additional Letters, o f L e e ’s ’ 'supposed” authorship, This copy o f the Additional Letters was given to the Boston Athenaeum and w as. as Wood shows, apparently the authority for the attribution o f The Federal Farmer to Lee in the Athenaeum Catalogue published in 1874. thence to Sabin's Dictionary o f Books Relating to Am erica, and thence to Bancroft. Ford, and American historians g e n e ra lly .'2 This is a slim basis for attribu­ tion. but the evidence in these matters is usually slim, and it would hardly have been contradicted, even given the discrepancies in lone and argument between The Federal Farmer and L e e ’ 5 letter, hui for silence or ignorance among contemporaries who might be expecied to know o f L e e 's author­ ship.14 Webster and Pickering, in their review s o f the essays, gave no evidence of knowing the a u th o r." Virginian Edward Carrington sent The Federal Farm­ er's two volumes to Jefferson. describing them as reputedly "th e best o f anything that has been written in the opposition.” but reporting that ' the author is not known ‘ ,s There is no evidence o f authorship in L ee’ s corre­ spondence or in the Lee family papers.'* M oreover, while L ee’ s grandson and early biographer refers to " th e objections o f Mr. Lee 10 the constitu­ tion. and his arguments in support o f them, j which| may be seen by the reader in eloquent and powerful detail, in his letters in the body o f corre­ spondence written during the years 1787 and 1788.” he makes no reference to The Federal Farmer, as he surely would have done had he thought Lee w as the a u th o r." Considering the success and reputation o f The Federal Farmer, it is strange that Lee never acknowledged authorship if they were hts— y d the same could be said o f just about any other possible author. The case against L ee’ s authorship remains inconclusive. But if. as seem s prob­ able. the only solid positive evidence is the essay o f N ew England and its derivatives, the case for L e e ’s authorship is surely a good deal w eaker than has usually been assumed. Why is there so little extant evidence about a pamphlet so widely known and respected? Part o f the reason, at least, is that these eighteenth-century Americans, while sharing with the rest o f humankind a curiosity and dis­ position to gossip about personalities, really did think that what counts most (or at least what ought to count mostl In political debate is what is said rather than who said iL ls The Observations fall into four parts: first, a preface dealing with the way in which the Constitution ought to be consid­ ered -14: II. 2.8.15-2}); third, an examination o f the organization and powers o f the proposed government (IN. 2.8.24-43: IV . 2.8.44-58): fourth, a conclusion (V . 2.8.5^-66). O f particular importance are the excellent discussions o f representation and the jury tnal that run throughout these and the Addi­ tional Letters The Additional Letters, which are taken up largely with an

25

The Federal Farmer examination o f the organisation o f the three branches o f the government, also contain especially important di&cussions o f federalism (VI, 2.8.73-73). the federal republic (V I. 2.8.75-80; X V II. 2.8.204-13). and bills o f rights (X V I. 2.8.196-203). What follow s is an extended outline o f the argument o f the essays.

o b sfh v a tio n s

I. Preface (I. 2.8.1-8). There is no reason for hasty or ill-considered adoption. While the plan proposed appears to be partly federal, it is principally calculated to make the slates one consolidated governm ent, as is seen by examining the plan, u s history, and the politics o f its friends. II. The sta les cannot h e c onsoiidated into one entire government on free principles (I. 2.8.9-14; 11. 2.8.15-23; III. 2.8.24). A. A consideration o f the several forms on which the United States might exist as one nation (I, 2.8.10-13). B. Impracticability o f free and equal government extending o ver large and heterogeneous territory (I. 2.8.14). C

The Constitution does not. and cannot, provide the tw o essential parts o f free governm ent, a substantial representation o f the people in the legislature (II. 2.8.15) and the ju ry m at o f the vicinage (II.

2.8. t6). D. Other considerations 1. T h e center and the extrem es will not share benefits; and. be­ cau se o f the limited operation o f the laws o f a free government, the law will have to be enforced at the extrem es by fear and fraud i l l . 2.8.17-18). 1

E

It is difficult, though nol im possible, to frame a Bill o f Rights for such a varied country (II. 2.8 19-21). The Constitution lodges very extensive pow ers in ait inherently defective government, with the result either o f neglected laws or military enforcem ent leading, in either case, to despotism 111. 2.8.22-23).

III. Organization and powers o f th e new government (III. 2.8.25-43. IV. 2.8.44-58). A. Organization (HI. 2.8.25-34): Each part o f the government briefly examined and criticized (HI. 2.8.25-30). The deficien cies, particularly the sm allness o f the House o f Representatives, the compromise basis o f the Senate, and the blending o f pow ers, arc admittedly the inevitable result o f our situation, which reinforces the conclusion that it is not possible to consolidate the states on proper principles (111. 2 8.31-34),

26

Letters B- Pow ers im properly or prem aturely lodged ( i l l . 2.8.35-4}: IV . 2.8.44): 1. Powers regarding external objects and some regarding internal objects ought to be lodged in the general government, but un­ limited pow er to lay taxes and extensive control o f military strength o f the c o u n ty are dangerous; pow er ip these critical areas should be granted extrem ely cautiously so long as the federal government is so defective especially regarding repre­ sentation (which is further discussed here) (111. 2.8.35-40) 2. The extensive jurisdiction given to federal judiciary is examined and shown, in many points, to be unnecessary and dangerous. Jury trial o f the vicinage is not secured (111, 2.8.41-43; IV . 2.8.44). C . Undefined powers (IV 2 8.44-45): Provisions regarding direct taxes, regarding qualifications o f the vice president, regarding appoint­ ment o f inferior officers, regarding congressional control o ver the D

appellate jurisdiction o f the Supreme Court. Powers the exercise o f which is unsecured (IV . 2.8.46-58}: r. Supremacy clause— no provision that treaties shall be made in pursuance o f Constitution. 2. Necessary and proper clause— power o f Congress not restricted to a few national objects. 3. N o Bill o f Rights with reservations for stales and individuals: (a) religion, (b; trial by ju ry, (c) press. 4. Provision for amendment— Constitution will transfer pow er from the many to the few . who will resist further change.

IV . Conclusion (V . 2.8.59-66). Government ought to preserve, not undermine, the equal division o f our land and the free and manly habits o f our people. Wc need improved federal government- and there are many good things here, but the value is lessened by the want o f a representation o f the people E x trem e p a rtisan s fa v o r in g and o p p o sin g the C o n s t i t u t i o n examination o f activities o f partisans for the Constitution. Constitution should be considered freely and carefully and amendments proposed. ADDITIONAL LETTTKS

I. General and introductory (VI. 2.8.67-92). A - C h a r a c te r o f F e d e ra list and A n ti-F e d e ra list partisans (V I. 2.8.71-73):

27

The Federal Fanner This is a continuation o f the preface in letter 1 and o f discussion in V . with important discussion o f “ honest** federalists, "pretend ed " fe d e r a lis ts , “ true'* fe d e r a lis ts , and o f m islead in g term s, "fed era list" and **anti-federalist.** B. General positions and principles (V I, a.8.74-80): A (rather m iscellaneous) brief restatement o f earlier points about the need for a more efficient government, the necessity o f a fed­ eral republic in such an extensive territory, the importance o f a substantial representation and jury trial. A distinction is drawn between natural, constitutional, and common or legal rights. C. Leading features o f the Articles o f Confederation (V|, 2.8.81-86). D. Organization o f state governm ents (V I. 2.8 87-921,

II. Legislative branch ( V J 1- X I I . 2.8.93-T65). A . Introduction (V||. 2.8.93-96). Must have governm ent— aim is to have one operating by persua­ sion, or it will operate by fort e. Criteria o f fair and equal representation: same interests, feelings, opinions, and view s as people at large. B . Representation is insubstantial and ought to be increased ( V fl-X , 2 8 97- 142). 1. Substantial representation should contain representatives o f all orders o f society to maintain halancc. T w o major classes, aris­ tocracy and dem ocracy; their subordinate classes, their charac­ teristics: and subsidiary interests and panics. (An important dis­ cussion.) The representation in the House o f Representatives is too small to reflect these classes and interests and will be drawn largely from the aristocracy (V II. 2.8.97-100). Observations in defense o f representation as provided in the Constitution listed t V f l. 2.8.tot). 2. Kngland as a genuine balance among the several orders ( VH I. 2.8 to2-to): Contrast to Rome— the differences lie in substantial representa­ tion in England (Secondary discussion but still important on question o f representation.) 3. Observations o f advocates answered (IX -X . 2 8 111-42): People will elect good men (important on representation) (X. 2.8.111-18) Members o f Congress must return home and bear the burdens they impose on others (IX . 2.8.119-26) People have a strong arm to check their rulers (X . 2.8.127).

28

Letters Slates are part o f the system and will balance the general gov­ ernment (but states have no constitutional check) (X . 2.8.128). Objects o f Congress are few and national (X . 2.8 130-32). H ouse o f R epresentatives will increase in size in time (X. a 8 133- 34). Difficulty o f assembling many men without making them a mob IX . 2.8.136). Congress will have no temptation to do wrong (X . 2.8.138). People will be free as long as they possess habits o f free men {X. 2 -8 . 139) 4. Organization, appointment, powers o f Senate (.XI. 2.8.143-47): Cannot have genuine representation o f aristocracy in ihe United States: so Senate will contain generally sam e kind o f men as high posts o f House o f Representatives; ch eck s will be only those limited ones derived from different modes o f appointment, dif­ ferent terms o f office, mere fact o f a second branch, etc. While Senate is useful, some revisions should be made: T erm s o f office should be shortened, senators should be recallable, and provisions should be made for rotation. Treaty pow er might be dangerous, but whole Congress has pow er to make commercial regulations. C. The elections ought to be better secured (X II. 2.8.148-6^); All general principles regarding electors and elected, mode o f elec­ tion (which should be by majority vote in districts, etc.), should be laid down in Constitution. Any necessary discretion should reside in slate legislatures, closest to the people. Ill

Executive branch (X IU -X IV . 2.8.166-82). A. Appointments (X III. 2.8.166-72; X IV . 2.8.173-76): Executive necessary but dangerous— need to keep it balanced by distributing appointments. V arious m ethods o f appointm ent sketched and d iscussed— in selecting from among these the aims are to keep balance in govern­ ment and to prevent legislature Trom becom ing infected by the spirit o f office-men. B

Election and powers o f President (X IV . 2.8.177-82); Unity in executive: general need for '"first m an."

29

The Federal Farmer Must be given ample pow ers; ch ief concern should be to avoid perpetuation o f pow er in any man or family. Thus should not be ineligible. V eto power— combination o f executive and judges is best. IV . Judicial branch (X V . 2.8.183-95). Peculiar character o f judicial branch and its dangerous tendency in popular government (2.8.T83-84). Organization o f judiciary (2.8,185-88). Supreme Court appellate jurisdiction over fact and law o n a ld . T h e te x t o f t h e

M c D o n a l d e d i t i o n is e x t r e m e l y u n r e l i a b l e , c o n t a i n i n g n u m e r o u s a l t e r a ! i o n s o f s p e l l i n g a n d p u n c t u a t i o n w h i c h t h e r e a d e r is n o t le d t o e x p e c t a n d . m o r e s e r i o u s l y , a s u b * s ta n tia l n u m b e r o f m is r e a d in g s , m is p r in ts , o m itte d lin e s , e t c . A c o p y o f th e o r ig in a l e d i t i o n o f t h e A d d i t i o n a l L e t t e r s w a s b r o u g h t o u t b y Q u a d r a n g l e B o o k s , C h i c a g o , in 3 9 6 2 . b u t it i s n o w o u t o f p r i n t .

The Life o f Timothy Pickering [ B o s i o n American Museum M a y 1 7 M . 422-33 S- (Chicago 1953) II. 1299-1300 b ( A th ir d v o lu m e w a s c o m p le t e d b y C r o s s k e y 's lit e r a r y e x e c u t o r , W illia m J e f ­ f r e y . J r . , a n d p u b l i s h e d in 1 9 8 0 u n d e r t h e t i t l e The Political Background o f the Fed­ eral Convention, b u t . s i n c e it c o v e r s e v e n t s t h r o u g h 22 M a y 17 B 8 o n l y , it d o c s n o t 4

O c t a v iu s P ic k e r in g a n d C h a r le s U p h a m .

r& 7 2 ) I I . 3 5 S - 6 8 :

in c lu d e t h e F e d e r a l F a r m e r d i s c u s s io n .— M .D .J l a m in fo r m e d b y P r o f e s s o r J e ffr e y th a t C r o s s k e y ’ s o p in io n w a s b a s e d o n

(h e fo llo w in g g r o u n d s . F ir s t. C r o s s k e y

re­

p o r t e d l y d i s c o v e r e d in t h e J o h n L a m b p a p e r s a l e t t e r f r o m L e e t o L a m b s a y i n g t h a t h e “ w o u ld b e in te r e s te d

in s e e i n g t h e L e t t e r s o f a F e d e r a l F a r m e r .

T h e r e b e in g n o

r e a s o n w h y h e s h o u ld c o n c e a l h is a u t h o r s h ip fr o m L -a m b . th is w o u ld s tr o n g ly s u g g e s t th a t h e w a s n o t th e a u t h o r

B u t I fin d n o s u c h l e t t e r in t h e L a m b p a p e r s . L a m b ' s

c o m m i t t e e d id d i s t r i b u t e , a m o n g o t h e r m a t e r i a l s , t h e O b s e r v a t i o n s o f T h e F e d e r a l F arm er; a n d

L e e d id th a n k

p r o m is in g t o r e a d th e m

L a m b f o r s e n d i n g h im

som e

A n t i- F e d e r a l m a te r ia ls ,

w ith p le a s u r e , h u t th e re is n o e v id e n c e

th a t T h e F e d e r a l

F a r m e r w a s i n c l u d e d in r h e p a c k e t s e n t t o L e e . S e e L e t t e r o f J o s h u a A t h e r t o n . 2 3 Ju n e 178 8 . J o h n L a m b P a p e r s , b o x s . n o - 2 5 . N e w - Y o r k H is to r ic a l S o c ie t y : le t te r o f R i c h a r d H e n r y L e e t o J o h n L a m b . 2 7 J u n e 1 7 8 8 , in L e a k e .

Times o f General John Lamb

3 0 9 -3 0

(O n

Memoir o f (he Life and

r e c o n s id e r in g th is q u e s tio n .

P ro fe s s o r

J e f f r e y r e p o r t s th a t h e m a y h a v e m i s l e d S t o r i n g a b o u t t h i s g r o u n d f o r C r o s s k e y ' s o p in io n . J e ffr e y b e l ie v e s th a t L a m b 's k t i e r t o L e e . a n d L e e 's r e s p o n s e a c k n o w le d g ­ in g r e c e ip t o f th e A n t i- F e d e r a l m a t e r ia ls , in c lu d in g T h e F e d e r a l F a n n e r , p e r s u a d e d C r o s s k e y th a t L e e w a s n o t th e a u t h o r .— M . D | C r o s s k e y 's s e c o n d g r o u n d w a s th e f a c t t h a t L e e p u b l i s h e d o v e r h is o w n n a m e h is o b j e c t i o n s t o t h e C o n s t i t u t i o n in h i s le t te r t o G o v e r n o r R a n d o lp h o f 16 O c t o b e r 1 7 B 7 < see b e l o w . 3 .6 ). a n d w o u ld th e r e ­ fo r e , C r o s s k e y r e a s o n e d , h a v e h a d n o m o tiv e fo r c o n c e a lin g h is o p p o s it io n b y a s ­ s u m in g a p s e u d o n y m fo r th e lo n g e r p a m p h le t . H u t a p s e u d o n y m w a s u s e d n o t m e r e ly o r e v e n m a in ly t o e n a b le th e a u t h o r t o c o n c e a l b is o p in io n o r t o p r o t e c t h im s e lf ; i t w a s a c o n v e n tio n

a im e d

a t d ir e c t in g a tte n tio n

a t th e

a r g u m e n t s r a t h e r th a n

at p er­

s o n a l i t i e s . A p u b l i c f ig u r e m ig h t w e l l d e c l a r e h i s o w n p o s i t i o n in a s p e e c h o r l c i t e i a n d g o o n t o p u b lis h a lo n g e r , m o r e a n a ly t ic a l p i e c e o v e r a p s e u d o n y m , M a n y o f th e p r o m i n e n t f i g u r e s in t h e d e b a t e o v e r t h e C o n s t i t u t i o n d i d p r e c i s e l y t h a t . 7 . G o r d o n S . W o o d . “ T h e A u t h o r s h i p o f The Letters from the Federal Farmer " William and Mary Quarterly A p r i l 1 9 7 4 8. See below, s.6. 9 . L e e . Letters I I . 4 3 3 - 7 6 . to C r o s s k e y . Politics and the Constitution I I . 3300. 13. N e w E n g l a n d w a s r e p r i n t e d in t h e New Hampshire Mercury 2 J a n u a r y 1 7 8 8 ; N e w Y o r k Daily Advertiser 4 J a n u a r y : Massachusetts Certinel 5 l a n u a r y : Gazette of the State o f Georgia 21 F e b r u a r y ; C h a r l e s t o n City Gazette 7 A p r i l 1 7 8 B ; C h a r l e s t o n Columbian Herald M A p r i l . S u b s e q u e n t i t e m s i d e n t i f y i n g L e e a s T h e F e d e r a l F a r m e r ( a n d n o t m e n t i o n e d b y W o o d ) a p p e a r e d in t h e Massachusetts Gazette 1 J a n u a r y ( a n d w a s r e p r i n t e d in N e w Y o r k a n d P e n n s y l v a n i a p a p e r s ) , Massachusetts Ceniinel 2 l a n u a r y . a n d B o s t o n American Herald 7 J a n u a r y I a m i n d e b t e d f o r m o s t o f t h is

31

The Federal Farmer in fo r m a tio n to S t e v e n R

B o y d . U n i v e r s i t y o f T e x a s . S a n A n t o n i o , w h o f in d s h e r e a

w i d e s p r e a d a s s u m p t io n a m o n g c o n t e m p o r a r ie s th a t I .e e w a s th e a u t h o r , 1 2 W o o d . William and Mary Quarterly A p r i l J 9 7 4 . 3 0 4 - 7 . S e c B a n c r o f t . History o f the Formation of thr Constitution I I . 2 JO; s e e a l s o 4 5 J - .5 3 ; f o r d . Pamphlets 2 7 7 13

O n e f u r t h e r s h r e d o f e v i d e n c e is p r o v i d e d b y t h e t i t le p a g e o f t h e c o p y o f I h e

O b s e r v a t i o n s o f T h e F e d e r a l F a r m e r in t h e A m e r i c a n A n t i q u a r i a n S o c i e t y , w h i c h b e a r s a n o ta tio n . " R i c h a r d H e n r y L e e . " T h e h a n d w r itin g d o e s n o t. h o w e v e r , a p p e a r in b e c o n t e m p o r a n e o u s w ith th e p u b lic a t io n o f th e p a m p h le t.

14 See above, note 4 1 5 . 9 J u n e i ? 8 $ . P r o c e e d in g s o f th e M a s s a c h u se tts H isto r ica l S o r ir ty J d s e r i e s . X V I I { r 9 0 . l l . 50 1

O liv e r E f ls w o n h ( a s A L a n d h o ld e r ! c o n te n d e d th a t L e e h a d r e v is e d

M a s o n 's a n d G e r r y 's s t a t e m e n t s o f t h e i r o b j e c t i o n s a n d w a s " s u p p o s e d t o b e th e a u t h o r o f m o s t o f t h e s c u r r i l i t y p o u r e d o u t in t h e N e w

Y o r k p a p e r s a g a in s t th e n e w

c o n s t i t u t i o n . " b u t h e d id n o t m e n t iu n T h e F e d e r a l F a r m e r s p e c i f i c a l l y . F o r d . E ssa y s i b i . S e c le tte r fr o m J

W a d s w o r th to R u fu s K in g , 16 D e c e m b e r 178 7 ( a b o v e , n

r>.

d e s c r ib in g th e d is tr ib u tio n o f th e L e t t e r s , w it h o u t id e n t ify in g th e a u t h o r . O n e o f J o h n L a m b 's c o r r e s p o n d e n t s . H u g h L c d t ie . w r it in g fro m H a r t fo r d , r e p o r te d in s in u a t io n s m a d e in t h e C o n n e c t i c u t c o n v e n t i o n " t h a t o u t o f t h e i m p o s t £ 8 .0 0 0 w a s p a i d b y t h i s S t a t e a n n u a lly to th e S t a t e o f N e w

Y o r k o u t o f w h ic h y o u r e e d , u p w a r d s o f £900

w h i c h e n a b l e d y o u & o t h e r * 10 w r i t e t h e f o c d c n t l f a r m e r a n d o t h e r f a l s e L i b e l s a n d

&

s e n d th e m in to th is

th e N e ig h b o u r in g S t a t e s u i p o is o n th e m in d s o f t h e g o o d p e o p le

a g a i n s t i h e g o o d C*-------n " J o h n L a m b P a p e r s , b o x 5

no.

t; N e w - Y o r k H i s t o r i c a l

Society 16

l e e . L e tter s p a s s i m : L e e F a m i l y P a p e r s , 1 7 4 2 - 1 7 9 5 ( m i c r o f i l m . U n i v e r s i t y o f

V ir g in ia L th r a r y ) t7 .

R i c h a r d H . L e e , e d , M em o ir o f th e l- ifc o f R ic h a r d H en ry L e e ( P h i l a d e l p h i a

ifl2 s > f . 2 4 0 . L e e s m o s t r e c e n t b i o g r a p h e r c a l l * t h e L e t t e r * o f T h e F e d e r a l F a r m e r " L e e s g re a te st a ttr ib u tio n

lite r a r y

a c h ie v e m e n t ."

to l.c c . O liv e r

but he d o es

n o t c o n s id e r

th e g r o u n d s

of

P e r r y C h i t w o o d . R ic h a r d H en ry L e e : S ta tesm a n o f the

R ev o lu tio n f M o r g a n t o w n . W V a . 19 6 7 1 1 7 3 tfi.

It

is

not

m a te r ia l w h e t h e r

th e

fe d e r a l fa r m e r

b e lo n g s

to

V ir g in ia o r

K a m t s c h a ik a — w h e th e r h e o w n * fiv e h u n d re d n e g r o e s , o r is a m a n o f n o p r o p c n y a t a ll— i f h is a r g u m e n t s a r e c o g e n t — h is r e a s o n in g s c o n c lu s iv e . . q u e n c e to th e p u b liu k . o r to th e g e n e r a l c a u s e , w h e t h e r m r d e v o t e e t o th e fa m e a n d t o th e m e r it te n d in g f o r th e c h a r a c t e r * o f m e n .

"

H e lv id iu * P r is o n s

is a n e n e m y , o r a

o f g e n e r a l W ashington. .

W c are not con ­

W e w is h t o v ie w e v e r y t h in g o n th e b r o a d s c a le

o f i n d e p e n d e n c e 10 A m e r i c a — the so v ereig n ty o f th e p e o p le

. N o r i s it o f c o n s e ­

Lee

o f the U n ite d S ta te s ,

a n d th e fr e e d o m

b e lo w . 4 .1 2 .9 .

I O ctober 8th. 1787. Dear Sir, 2 .8 .1

My letters to you last winter, on the subject o f a well balanced national government for the United States, w ere ihe result o f free en quiry;' when I passed from that subject to enquiries relative to our com m erce, revenues, past administration, e tc. I anticipated the anxieties I feel, on carefully ex­ amining ihe plan o f government proposed by the convention. Jl appears to be a plan retaining some federal features; but to be the first important step, and to aim strongly to one consolidated government of the United Stales. It leaves the powers o f governm ent, and the representation o f the people, so

3*

Letters unnaturally divided between the general and state governments* that the operations o f our system must be very uncertain. My uniform federal at­ tachments. and the interest I have in the protection o f property, and a steady execution o f the law s, will convince you, that, if 1 am under any biass at all. it is in favor o f any general sy stem which shall promise those advan­ tages. The instability o f ou r laws increases my wishes for firm and steady government; but then. 1 can consent to no governm ent, which, in my opin­ ion. is not calculated equally to preserve the rights o f all orders o f men in the community. M y object has been to join with those who have endeavoured to supply the defects in the forms o f our governm ents by a steady and proper administration o f them. Though I have long apprehended (hat fraudaient debtors, and embarrassed men. on the one hand, and men, on the other, unfriendly to republican equably, would produce an uneasiness among the people, and prepare (he w ay. not for coo! and deliberate reforms in the governments, but for changes calculated to promote the interests o f par­ ticular orders o f men.2 Acquit me. sir. o f any agency in the formation o f the new system : I shall be satisfied with seeing, if it shall be adopted, a prudent administration. Indeed I am so much convinced o f the truth o f Pope's maxim, thut “ That which is best administered is b est.'' ihat I am much inclined to subscribe to it from experience. I am not disposed to un­ reasonably contend about form s.> I know our situation is critical, and it behoves us to make the best o f it.4 A federal government o f some son is necessary. We have suffered the present to languish: and whether the con­ federation w as capable or not originally o f answering any valuable pur­ poses. it is now but o f little importance. I will pass by the men, and slates, who have been particularly instrumental in preparing the w ay for a change, and. perhaps, for governments not very favourable to ihe people at large A constitution is now presented which we may reject, o r which we may ac­ ce p t. with or without amendments: and to which point we ought lo direct our exertions, is the question. T o determine this question, with propriety, w c must alien lively examine the sysierr itself, and the probable conse­ quences o f cither step. This 1 shall endeavour to d o. so far as 1 am able, with candor and fairness: and leave you lo decide upon the propriety o f my opinions, ihe weight o f my reasons, and how far my conclusions are well drawn. W hatever may be the conduct o f others on the present occasion. 1 do not mean, hastily and positively to decide on the merits o f the constitu­ tion proposed I shall be open to conviction, and always disposed to adopt that which, all ihings considered, shall appear to me to be most for ihe happiness o f the community. It must be granted, lhal if men hastily and blindly adopt a system o f government, they will as hastily and as blindly be led to alter or abolish it: and changes must ensue, one after another, till the peaceable and better part o f the com m unity will grow weary with changes, tumults and disorders, and be disposed lo accept any government, how ever despotic, that shall promise stability and firmness

33

The Federal Farmer 2.8.2

The first principal question that occu rs, is. Whether, considering our situation, w e ought to precipitate the adoption o f the proposed constitution? If w e remain cool and temperate, we are in no immediate danger o f any commotions: w e are in a state o f perfect peace, and in no danger o f in­ vasions: the state governm ents are in the full exercise o f their powers; and our governm ents answer all present exigencies, except the regulation of trade, securing credit, in some cases, and providing for the interest, in some instances, o f the public debts; and w hether w e adopt a change, three or nine months hence, can make but little odds with the private circum stances o f individuals; their happiness and prosperity, after all. depend principally upon their own exertions. We are hardly recovered from a long and dis­ tressing war; The farmers, fishmen. & c . have not yet fully repaired the waste made by it. Industry and frugality are again assuming their proper station. Private debts are lessened, and public debts incurred by the war have been, b y various w ays, diminished; and the public lands have now becom e a productive source for diminishing them much more. I know un­ easy men. who wish very much to precipitate, do not admit all these facts; bui they are facts well known to all men w ho arc thoroughly informed in the affairs o f this country. It must, h ow ever, be admitted, that our federal system is defective, and that some o f the state governm ents are not well administered; but. then, w e impute lo the defects in our governments many evils and cm ban-ass merits which are most clearly the result o f the late war. We must allow men to conduct on the present occasion, as on all similar ones. They will urge a thousand pretences to answer their purposes on both sides. When we want a man to change his condition, w e describe it as miserable, wretched, and despised; and draw a pleasing picture o f that which w e would have him assum e. And when we wish the contrary, we reverse our descriptions. W henever a clam or is raised, and idle men get lo w ork, it is highly necessary to exam ine facts carefully, and without un­ reasonably suspecting men o f falshood. to exam ine, and enquire attentively,

2.8.3

under what impressions they act. It is too often the case in political con­ cerns, that men state facts not as they are. but as they wish them to be: and almost every man. by calling lo mind pasi scenes, will find this to be true Nothing but the passions o f ambitious, impatient, or disorderly men, l conceive, will plunge us into com m otions, if time should be taken fully to examine and consider the system proposed. Men who feel easy in their circum stances, and $uch as are not sanguine in their expectations relative to the consequences o f the proposed change, will remain quiet under the existing governm ents. Many com m ercial and monied men. w ho are uneasy, not without ju st cause, ought lo be respected: and. by no means, un­ reasonably disappointed in their expectations and hopes; but as to (hose who expect em ploym ents under the new constitution: a s to those w eak and ardent men who alw ays expect to be gainers by revolutions, and whose lot it generally is to gel out o f one difficulty into another, they are very little to be

54

Letters regarded: and as to those who designedly avail them selves o f this weakness and ardor, they are to be despised. It is natural for men. w ho wish to hasten the adoption o f a measure, to tell us. now is the crisis— now is the critical moment which must be seized, or all will be lost: and to shut the door against free enquiry, whenever conscious the thing presented has defects in it. which lime and investigation will probably discover. This lias been the custom o f tyrants and their dependants in all ages. If it is true, what has been so often said, that the people o f this country cannot change their condition for the worse. I presume it still behoves them to endeavour deliberately to change it for the better. The fickle and ardent, in any com m unity, arc the proper tools for establishing despotic government But it is deliberate and thinking men. who must establish and secure governments on free princi­ ples Before they decide on the plan proposed, they will enquire whether it will probably be a blessing or a curse to this people The present moment discovers a new face in our afTairs. Our object has been all along, to reform ou r federal sy ste m , and to strengthen o u r governments— to establish peace, order and ju stice in the com m unity— but a new object now presents The plan o f government now proposed is ev i­ dently calculated totally to change, in time, our condition as a people. Instead o f being thirteen republics, under a federal head, it is clearly de­ signed to make us one consolidated governm ent. O f this. I think. I shall fully convince you. in my following letters on this subject. This consolidation o f the stales has been the object o f several men in this country for some time past. W hether such a change can ever be effected in any manner: whether it can be effected without convulsions and civil wars; whether such a change will not totally destroy the liberties o f this country— time only can de­ termine. T o have a just idea o f the government before us. and to shew that a consolidated one is the object in view , it is necessary not only to examine the plan, but also its history, and the politics o f its particular friends. T h e confederation w as formed when great confidence w as placed in the voluntary exertions o f individuals, and o f the respective states: and the framers o f it to guard against usurpation, so limited and checked the pow ­ ers. (hat. in many respects, they are inadequate to the exigencies o f the union. We rind, therefore, members o f congress urging alterations in the federal system almost as soon as it w as adopted. It was early proposed to vest congress with pow ers to levy an impost, to regulate trade, etc. but such was known to be the caution o f the states in parting with power, that the vestment, even o f these, was proposed to be under several checks and limitations. During the war. the general confusion, and the introduction of paper money, infused in the minds o f people vague ideas respecting gov­ ernment and credit. We expected too much from the return o f peace, and o f course we have beerr disappointed. Our governments have been new and unsettled: and several legislatures, by making lender, suspension, and paper

35

2.8.5

2 . 8.6

The Federal Farmer money laws, have given ju st cause o f uneasiness lo creditors. By these and other causes, several orders o f men in the community have been prepared, b y degrees, for a change o f government; and this very abuse o f pow er in the legislatures, which, in some cases, has been charged upon the democratic pari o f the community, has furnished aristocratical men with those very w eapons, and those very means, with which, in great measure, they are rapidly effecting their favourite object. And should an oppressive govern­ ment be the consequence o f the proposed change, postenty may reproach not only a few overbearing unprincipled men. but chose parties in the states which have misused their powers, 2.8.7

The conduct o f several legislatures, touching paper money, and lender laws, has prepared many honest men lor changes in governm ent, which otherwise they woukJ not have thought of— when by the evils, on the one hand, and by the secret instigations o f artful men. on the other, the minds o f men were become sufficiently uneasy, a bold step w as taken, which is usually follow ed by a revolution, or a civil war. A general convention for mere commercial purposes was m oved for— the authors o f this measure saw that the people’ s attention was turned solely lo the amendment o f the fed­ eral system ; and that, had the idea o f a total change been started, probably no stale would have appointed members to the convention. The idea o f destroying, ultimately, the state governm ent, and forming one consolidated system , could not have been admitted— a convention, therefore, merely for vesting in congress pow er to regulate trade was proposed. This w as pleasing to the com m ercial towns; and the landed people had little or no concern about it, Septem ber. 1786. a few men from the middle states met at An­ napolis. and hastily proposed a convention to be held in May. 1787. for the purpose, generally, o f amending the confederation— this was done before the delegates o f M assachusetts, and o f the other slates arrived— still not a word was said about destroying the old constitution, and making a new one— The states still unsuspecting, and not aware that they were passing the Rubicon, appointed members to the new convention, for the sole and ex­ press purpose o f revising and amending the confederation— and, probably, not one man in ten thousand in the United S lates, till within these ten or tw elve days, had an idea that the old ship was to be destroyed, and he put to the alternative o f embarking in (he new ship presented, or o f being left in danger o f sinking— The S lates. I believe, universally supposed the tion would rcpori alterations in the confederation, which would examination In congress, and after being agreed to there, would firmed by all the legislatures, or be rejected. Virginia made a very

conven­ pass an be con­ respect­

able appointment and placed at the head o f it the first man in Am erica: In this appointment there was a mixture o f political characters: but Penn­ sylvania appointed principally those men who are esteemed aristocratical. Here the favourite moment for changing the government was evidently discerned by a few men. who seized it with address Ten other states ap-

3*

Letters pointed, and tho' they chose men principally connected with com m erce and the ju d ic ia l d ep artm en t yet th e y appoin ted m any go od repu b lican character*— had they all attended we should now see, 1 am persuaded a better system presented. The non-attendance o f eight or nine men. who were appointed members o f the convention, I shall ever consider as a very unfortunate event to the United S lates.*— Had They attended. I am pretty clear that the result o f the convention would not have had that strong tendency to aristocracy now discem able in every part o f the plan 6 There would not have been so great an accumulation o f pow ers, especially as to the internal police o f the country, in a few hands, as the constitution re­ ported proposes to vest in them— the young visionary men. and the con­ solidating aristocracy, would have been more restrained than they have been. Eleven states met in the convention, and after four months close attention presented the new constitution, to be adopted or rejected by the people. The uneasy and fickle part o f the community may be prepared to receive any form o f governm ent: but. I presume, the enlightened and sub­ stantial part will give any constitution presented for their adoption, a candid and thorough examination: and silence those designing or em pty men. who w eakly and rashly attempt to precipitate the adoption o f a system o f so much importance— We shall view the convention with proper respect-— and. at the same time, that w e reflect there were men o f abilities and integrity in it. we must recollect how disproponionably the democratic and aristocratic parts o f the community were represented— Perhaps the judicious friends and opposers o f the new constitution will agree, that it is best to let it rest solely on its ow n merits, or be condemned for its own defects. In the first place, I shall premise, that the plan proposed is a plan of

2 . 8.8

accommodation— and that it is in this way only and by giving up a part o f our opinions, that we can ever expect to obtain a government founded in freedom and com pact. T his circum stance candid men will alw ays keep in view , in the discussion o f this subject. The plan proposed appears to be partly federal, but principally how ever,

2.8.9

calculated ultimately to make the states one consolidated government The first interesting question, therefore suggested, is, how far the states can be consolidated into one entire government on free principles. In con­ sidering this question extensive objects are to be taken into view , and im­ portant changes in the forms o f government to be carefully attended to in all their consequences. The happiness o f the people at laigc must be the great object wilh every honest statesman, and he will direct every movement to this point. If w e are so situated as a people, as not to be able to enjoy equal happiness and advantages under one government, the consolidation o f the stales cannot be admitted. There are three different forms o f free government under which the United Slates may exist as one nation; and now is. peitiaps. the time to determine to which w e will direct our view s.1 i. D istinct republics con-

37

2.8-to

The Federal Fanner nected under a federal head. In this case the respective stale governments must be the principal guardians o f the peoples rights, and exclusively reg­ ulate their internal police; in them must rest the balance o f government. The congress o f the states, or federal head, must consist o f delegates amenable to. and rem oveable by the respective states: This congress must have gen­ eral directing powers; powers lo require men and monies o f the stales: to make treaties, peace and war. to direct the operations o f armies, etc. Under this federal modification o f governm ent, the powers o f congress would be rather advis&ry or recommendatory than coercive, j . Wc may do aw ay the several slate governm ents, and form or consolidate ail the Slates into one entire governm ent, with one execu tive, one judiciary, and one legislature, consisting o f senators and representatives collected from all parts o f the union: In this case there would be a com pleat consolidation o f the states. 3. W e may consolidate the states as to certain national ob jects, and leave them severally distinct independent republics, as to internal police generally. Let the general government consist o f an execu tive, a judiciary, and balanced legislature, and its powers extend exclu sively to all foreign concerns, causes arising on the seas to com m erce, im ports, armies, navies, Indian affairs, peace and war, and to a few internal concerns o f the community: to the coin, post-offices, w eights and m easures, a general plan for the militia, to natu­ ralization. and, perhaps to bankruptcies * leaving the internal police o f the community, in other respects, exclusively to the state governments: as the administration o f ju stice in all causes arising internally, the laying and col­ lecting o f internal taxes, and the forming o f the militia according to a general plan prescribed. In this case there would be a compleat consolidation. quoad certain objects o n ly.’ 2.8.11

2.8.12

Touching the first, or federal plan. 1 do not think much can be said in its favor: T h e sovereignty o f the nation, without coercive and efficient powers to collect the strength o f it. cannot alw ays be depended on to answer the purposes o f governm ent: and in a congress o f representatives o f sovereign states, there must necessarily be an unreasonable mixture o f powers in the same hands. A s to the second, or com pleat consolidating plan, it d eserves to be care­ fully considered at this time, by every American: [f it be impracticable, it is a fatal error to model our governm ents, d ireclin gou r views ultimately 10 it.

2.8.13

third plan, or pan ial consolidation, is. in m y opinion, ihe only one that can secure the freedom and happiness o f this people. I once had some general ideas that the second plan w as practicable,10 but from long atten­ tion, and the proceedings o f the convention. I am fully satisfied, that this third plan is the only one w e can with safety and propriety proceed upon. Making this the standard to point out, with candor and fairness, the parts o f the new constitution which appear lo be improper, is m y object. The con­ vention appears to have proposed the partial consolidation evidently with a view to collect all powers ultimately, in the United States into one entire

38

Letters government: and from its view s m this respect, and from the tenacity o f the small stales to have an equal vote in the senate, probably originated the greatest defects in the proposed plan. Independant o f the opinions o f many great authors, that a free elective

a.6.14

government cannot be extended o ver large tern lories, a few reflections must evince, that one governm ent and general legislation alone, never can extend equal benefits to all parts o f the United States: Different law s, custom s, and opinions exist in the different stales, which by a uniform system o f laws would be unreasonably invaded- T h e United States contain about a million o f square miles, and in half a century w ill, probably, contain ten millions o f people: and from the center to the extrem es is abom 800 miles. Before we do aw ay the slate governm ents, or adopt measures that will tend to abolish them, and to consolidate the stales into one entire govern­ ment. several principles should be considered and facts ascertained:— These, and my examination into the essential parts o f the proposed plan. I shall pursue in my next. Y o u r’s & c. The Federal Farmer.

II October 9. 1787. Dear Sir, The essential parts o f a free and good government are a full and equal representation o f J h c jpeople in the legislature, and the ju ry trial o f the vicinage in the administration o f ju stice— a full and equal representation, is lhat which possesses the same interests, feelings, opinions, and view s tht people them selves would were they all assembled— a fair representation, therefore, should be so regulated, that every order o f men in the commu­ nity. according to the common course o f elections, can have a share in it— in order to allow professional men. merchants, traders, farmers, m echanics, etc. to bnng a just proportion o f their best Informed men respectively into the legislature, the representation must be considerably num erous” — We have about 200 state senators in the United S tates, and a less number than that o f federal representatives cannot, clea rly , be a full feprE&gntatipiT of this people, in the affairs o f internal taxation and police, were there but one legislature for the w hole union F K e representation cannot be_gqual. or the situation o f the people proper for one government only— if the extrem e parts o f the society cannot be represented a s fully a s the central— It is apparently impracticable that this should be the case in this extensive country-^it would be impossible to collect a representation o f the p a n s o f £ e country five. six. and seven hundred miles from the seal o f govern m ent.!

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2-8.ts

The Federal Farmer 2.8.16

j^Under one general government alone.j^here could be but one judiciary, one supreme and a proper number o f inferior courts^ I think it would be totally impracticable in this case to preserve a due administration o f justice, and the real benefits o f the jury trial o f the vicinage*^*— there are now supreme courts in each state in the union: and a great number o f county and other courts subordinate to each supreme court— m ost o f these supreme and inferior courts are itinerant, and hold their sessions in different p an s every year o f their respective states, counties and districts— with all these moving courts, our citizens, from the vast extent o f the country must travel very considerable distances from home to find the place where justice is ad­ ministered. 1 am not for bringing ju stice so near to individuals as to afford them any temptation to engage in law suits: though I think it one o f the greatest benefits in a good government, that each citizen should find a court o f justice within a reasonable distance, perhaps, within a day's travel o f his home: so that, without great inconveniences and enorm ous expenses. he may have the advantages o f his witnesses and ju ry— it would be impracti­ cable to derive these advantages from one judiciary— the one supreme court at most could only set in the centre o f the union, and m ove once a year into the centre o f the eastern and southern extrem es o f it— and. in this case, each citizen, on an average, would travel 150 or 200 miles to find this court— that, how ever. Inferior courts might be properly placed in the different counties, and districts o f the union, the appellate jurisdiction would be intolerable and expensive.

2 8.17

If it were possible to consolidate the states, and preserve the features o f a free government, still it is evident that the middle states, the parts o f the union, about the seat o f government would enjoy great advantages, while the remote stales would experience the many inconveniences o f remote provinces. W ealth, offices, and the benefits o f government would collect in the centre: and the extrem e srateslJ and their principal tow ns, becom e much less im portant.14

2.8.18

There are other considerations which lend to prove that the idea o f one consolidated w hole, on free principles, is ill-founded— the law s o f a free government rest on the confidence o f the people, and operate gently— and never can extend their influence very far— if ihey are executed on free principles, about the centre, where the benefits o f the governm ent induce the people to suppori il voluntarily; yet they must be executed on the principles o f fear and force in the extrem es— This has been the case with

2.8.19

every extensive republic o f which w e have any accurate accou n t.15 There are certain unalienable and fundamental rights, which in forming the social com pact, ought to be explicitly ascertained and fixed— a free and enlightened people, in forming this com pact, will not resign all their rights to those who govern, and they will fix limits to their legislators and rulers, which will Soon be plainly seen by those who are governed, as well as by those who govern: and the latter will know they cannot be passed un­

40

Letters perceived by the former, and without giving a general alarm— These rights should be made the basis o f every constitution: and if a people be so situated, o r have such different opinions that they cannot agree in ascer­ taining and fixing them, it is a very strong argument against their attempting to form one entire society, to live under one system o f laws only.— ] co n ­ fess. f never thought the people o f these states differed essentially in these respects; they having derived alt these rights from one common source, the British systems: and having in the formation o f their state constitutions, discovered that their ideas relative to these rights are very similar. How­ ever. it is now said that the states differ so essentially in these respects, and even in (he important article o f the trial by ju ry, that when assembled in convention, they can agree to no words by which to establish that trial, or by which to ascertain and establish many other o f these rights, as funda­ mental articles in the social com pact.1* If so. w e proceed to consolidate the states on no solid basis whale ver. But I d o not pay much regard to the reasons given for not bottoming the new constitution on a belter bill o f rights. I still believe a complete federal bill o f rights to be very p racticable.'7 Nevertheless l acknowledge the pro­ ceedings o f the convention furnish my mind with many new and strong

2. 8 .2 0

reasons, against a com plete consolidation o f the states. T hey tend to con­ vince me. that it cannot be earned with propriety very far— that the con­ vention have gone much farther in one respect than they found it practicable to go in another; that is, they propose to lodge in the general government very extensive powers— powers nearly, if not altogether, com plete and un­ limited. o ver the purse and the sword. But. in its organization, they furnish the strongest proof that the proper limbs, or parts o f a government, to support and execute those powers on proper principles (or in which they can be safely lodged) cannot be formed. These powers must be lodged som e­ where in every society; but then they should be lodged where the strength and guardians o f the people are collected. T h ey can he wielded, or safely used, in a free country only by an able executive and judiciary, a respectable senate, and a secure, full, and equal representation o f the people. 2 think the principles l have premised or brought into view , are well founded— 1 think they will not be denied by any fair reasoner. It is in connection with these, and other solKl principles, w e are to examine the constitution. It is not a few' democratic phrases, or a few well formed features, that will prove its merits; or a few small omissions that will produce its rejection among men o f sense; they will enquire what an: the essential powers in a community, and what arc nominal ones, where and how the essential pow ers shall be lodged to secure government, and to secure true liberty. In examining the proposed constitution carefully, we must clearly per­ ceive an unnatural separation o f these pow ers from the substantial repre­ sentation o f the people The state governments will exist, with all their governors, senators, representatives, officers and expences: in these will be

41

2.8.21

The Federal Farmer nineteen-twentieths o f the representatives o f the people; they will have a near connection, and their members an immediate intercourse with the people; and the probability is, thal the state governm ents will possess the

2.8.23

confidence o f the people, and be considered generally as their immediate guardians. - 'I The general governm ent wiU consist o f a new species o f execu tive, a small j senate, and a very small house o f representatives. A s many citizens will be more than three hundred m iles from the seat o f this government a s will be nearer to it. its judges and officers cannot be very numerous, without m ak­ ing our governm ents very expensive. Thus will stand the stale and the general governm ents, should the constitution be adopted without any alterations in their organization: but as to pow ers, the general government will possess ail essential ones, at least on paper, and those o f the states a mere shadow o f pow er. And therefore, unless the people shall make some great exertions to restore to the state governm ents their powers in matters o f internal police; a s the powers to lay and co llect, exclu sively, internal taxes, to govern the militia, and to hold the decisions o f (heir ow n judicial i courts upon their own laws final, the balance cannot possibly continue long: I but the state governm ents must be annihilated, or continue to exist for no , purpose.

2.8.l j

It is how ever to be observed, that many o f the essential powers given the national government axe not exclu sively given; and the general government may have prudence enough to forbear the exercise o f those which may still be exercised by the respective states. But this cannot justify the impropriety o f giving pow ers, the exercise o f w hich prudent men will not attempt, and imprudent men wiU. or probably can. exercise only in a manner destructive o f free governm ent. T h e general governm ent, organized as it is, may be adequate to many valuable objects, and be able to carry its laws into execu ­ tion on proper principles in several cases: but I think its warmest friends will not contend, that it can c a n y all the powers proposed to be lodged in it into effect, without calling to Us aid a military force, which must very soon destroy all elective governm ents in the country, produce anarchy, or establish despotism . Though we cannot have now a complete idea o f what will be the operations o f the proposed system , w e m ay. allowing things to have their com m on course, have a very tolerable one. The powers lodged in the general governm ent, if exercised by it. must intimately effect the inter­ nal police o f the stales, as w ell as external concerns: and there is no reason to expect the numerous state governm ents, and their connections, will be very friendly to the execution o f federal law s in those internal affairs, which hitherto have been under theirow n immediate management. There is more reason to believe, that the general governm ent, far rem oved from the people, and none o f its members elected oftener than once in tw o years, will be foigot or neglected, and its law s in many cases disregarded, unless a multitude o f officers and military foree be continually kept in view , and

L etter employed to enforce the execution o f the law s, and to make the government feared and respected. N o position can be truer than this, that in this country either neglected law s, o r a military execution o f them, must lead to a revo­ lution. and to the destruction o f freedom. Neglected laws must first lead to anarchy and confusion; and a military execution o f laws is only a shorter way to the same point— despotic governm ent. 11 Y o u r's. & c. The Federal Farmer.

Ill O ctober toth, 1787. Dear Sir, T he great object o f a free people must be so to form their government and laws, and so to administer (hem. as to create a confidence in. and respect for the laws; and thereby induce the sensible and virtuous part o f the commu­ nity to declare in favor o f the laws, and to support them without an expen­ sive military fo rce. 19 1 w ish, though 1 confess I have not much hope, that this may be the case with the laws o f congress under the new constitution. I am fully convinced that we must organize the national government on dif­ ferent principals, and make the parts o f it more efficient, and secure in it more effectually the different interests in the community; or else leave in the slate governments some pow ers proposefdl 10 b* lodged in it— at least till such an organization shall be found to be practicable. Not sanguine in my expectations o f a good federal administration, and satisfied, as 1 am . o f the impracticability o f consolidating the states, and at the same time o f pre­ serving the rights o f the people at large. 1 believe we ought still to leave some o f those powers in the state governm ents, in which the people, in fact, will still be represented— to define some other pow ers proposed to be vested in the general governm ent, more carefully, and to establish a few principles to secure a proper exercise o f the pow ers given it. It is not my object to multiply objections, or to contend about inconsiderable powers or amend­ ments; l wish the system adopted with a few alterations; but those, in my mind, are essential ones; if adopted without, ever)' good citizen will ac­ quiesce though 1 shall consider the duration o f our governm ents, and the liberties o f this people, very much dependant on the administration o f the general government. 10 A wise and honest administration, may make the people happy under any government; but necessity only can justify even our leaving open avenues to the abuse o f pow er, b y w icked, unthinking, or ambitious men. I will exam ine, first, the organization o f the proposed go v­ ernment, in order to judge; zd. with propriety, what powers are im properly.

43

2.8.24

The Federal Farmer at least prematurely lodged in it. I shall exam ine, 3d. the undefined powers: and 4th. those pow ers, the exercise o f which is not secured on safe and proper ground.

2.8.25

First. A s to the organization— the house o f representatives, the dem ocrative branch, as it is called, is to consist o f 65 members: that is. about one representative for fifty thousand inhabitants, to be chosen bien­ nially— the federal legislature may increase this number to one for each thirty thousand inhabitants, abating fractional numbers In each state.— Thirty-three representatives will make a quorum for doing business, and a majority o f those present determine the sense o f the house.— 1 have no idea that the interests, feelings, and opinions o f three or four millions o f people, especially touching internal taxation, can be collected in such a house.— In the nature o f things, nine times in ten. men o f the elevated classes in the community only can be chosen— Connecticut, for instance, will have five representatives— not one man in a hundred o f those w ho form the deroocrative branch in the state legislature, wall, on a fair computation, be one o f the five— The people o f this country, in one sense, may all be democratic: but if w e make the proper distinction between the few men o f wealth and abilities, and consider them , as we ought, as the natural aristocracy o f the country.11 and the great body o f the people, the middle and low er classes, as the dem ocracy, this federal representative branch will have but very little dem ocracy in it. even this small representation Is not secured on proper principles.— The branches o f the legislature arc essential p an s o f the fun­ damental com pact, and ought to be so fixed by the people, that the legisla­ ture cannot alter itself by modifying the elections o f its own members. This, by a part o f Art. 1. S ect. 4. the general legislature may do. it may evidently so regulate elections as to secure the choice o f any particular description of men.— It may make the whole state one district— make the capital, or any places tn the state, the place or places o f election— it may declare that the five men (or w hatever the number may be the state may chuse) w ho shall have the most votes Shull be considered as chosen— In this case it is easy to perceive how the people w ho live scattered in the inland towns will bestow their votes on different men— and how a few men in a city, in any order or profession, may unite and place any five men they please highest among those that may be voted for— and all this may be done constitutionally, and by those silent operations, which are not immediately perceived by the people in general.— I know it is urged, that the general legislature will be disposed to regulate elections on fair and just principles:— This may be true— good men will generally govern well with almost any constitution: but why in laying the foundation o f the social system , need we unnecessarily leave a door open to improper regulations?— T his is a very general and unguarded clause, and many evils may Row from that part which authorises the congress to regulate elections— Were it omitted, the regulations o f elec­ tions would be solely in the respective slates, where the people are sub-

44

Letters stantially represented: and where the elections ought to be regulated, otherwise to secure a representation from all parts o f the com m unity, in making ihe constitution, we ought to provide for dividing each state into a proper number o f districts, and for confining the electors in each district to the choice o f some men. who shall have a permanent interest and residence in it: and also for this essential object, that the representative elected shall have a majority o f the votes o f those electors who shall attend and give their votes. In considering the practicability o f having a full and equal representation

2 .8 .2 6

o f the people from all p a n s o f the union, not only distances and different opinions, custom s, and view s, common in extensive tracts o f country, are to be taken into view , but many differences peculiar to Eastern. Middle, and Southern states. These differences are not so perceivable among the mem­ bers o f congress, and men o f general information in the states, as among the men w ho would properly form the democratic branch The Eastern states are very democratic, and com posed chiefly o f moderate freeholders; they have but few rich men and no slaves: the Southern states are composed chiefly o f rich planters and slaves; they have but few moderate freeholders, and the prevailing influence, in them, is generally a dissipated aristocracy: The Middle states partake partly o f the Eastern, and partly o f the Southern character Perhaps, nothing could be more disjointed, unweildly and incompetent to

1 . 8 . 2?

doing business with harmony and dispatch, than a federal house o f repre­ sentatives properly numerous for the great objects o f taxation, e l cetera collected from the several states: whether such men would ever act in concert; whether they would not worry along a few years, and then be (he means o f separating the parts o f the union, is very problematical?— View this system in w hatever form w e can . propriety brings us still to this point, a federal government possessed o f general and complete pow ers, as to those national objects which cannot well com e under the cognizance o f the inter­ nal laws o f the respective states, and this federal governm ent, accordingly, consisting o f branches not very numerous. The house o f representatives is on the plan o f consolidation, but the senate is intirely on the federal plan.22 and Delaware will have a s much constitutional influence in the senate, as the largest state »n the union: and in this senate are lodged legislative, executive and judicial powers; Ten states in this union urge that they are small states, nine o f which were present in the convention.— T h ey were interested in collecting large powers into the hands o f the senate, in which each state still will have its equal share of power, 1 suppose it was impracticable for the three large states, as they were called, to get the senate formed on any other principles: But this only proves, that we cannot form one general governm ent on equal and just principles— and proves, that w e ought not to lodge in it such extensive powers before w e are convinced o f the practicability o f organizing it on just

45

2.8.28

The Federal Farmer and equal principles. The senate will consist o f tw o members from each state, chosen by the state legislatures, every sixth year. T he clause referred to. respecting the elections o f representatives, em powers the general legis­ lature to regulate the elections o f senators also, ' ‘except as to the p t ^ e s o f chusing senators.*‘— There is. therefore, but little more security in the elec­ tions than in those o f representatives: Fourteen senators make a quorum for business, and a m ajority o f the senators present give the vote o f the senate, except in giving judgm ent upon an impeachment, or in making treaties, or in expelling a member, when two-thirds o f the senators present must agree— The members o f the legislature are not excluded from being elected to any military offices, or any civil offices, except those created, or the emolu­ m ents o f which shall be increased b y them selves: two-thirds o f the members present, o f either house, may expel a member at pleasure. The senate is an independant branch o f the legislature, a court for trying impeachments, and also a pan o f the execu tive, having a negative in the making o f all treaties, 2.8.29

and in appointing almost all officers. The vice president is not a very important, if not an unneessary part o f the system— he may be a part o f the senate at one period, and act as the su­ preme execu tive magistrate at another— The election o f this officer, a s well as o f the president o f the United States seem s to be properly secured;” but when we exam ine the pow ers o f the president, and the form s o f the execu ­ tive, w e shall perceive that the general governm ent, in this part, will have a strong tendency to aristocracy, or the governm ent o f the few . The executive is. in fact, the president and senate in all transactions o f any importance; the president is connected w ith, or tied to the senate; he may alw ays act with the senate, but never can effectually counteract its views: The president can appoint no officer, civil o r m ilitary, w ho shall not be agreeable to the senate; and the presumption is. that the will o f so important a body w ill not be very easily controuled. and that it will exercise its pow ers with great address.

2.8.30

In the judicial department, pow ers e v e r kept distinct in well balanced governments, are no less im properly Wended in the hands o f the same men— in the ju d ges o f the supreme court is lodged, the law, the equity and the fact. It is not necessary to pursue the minute organic a! parts o f the genera) governm ent proposed-— There were various interests in the con­ vention. to be reconciled, especially o f large and small states; o f carrying and non-carrying states: and o f states more and states less dem ocratic— vast labour and attention were by the convention bestow ed on the organization o f the parts o f the constitution offered; still it is acknowledged there are many things radically w rong in (he essential parts o f this constitution— but it is said that these are the result o f our situation; On a full examination o f the subject. I believe it; but what do the laborious inquiries and determinations o f the convention prove? If they prove any thing, they prove that w e cannot consolidate the states on proper principles: The organization o f the govern­ ment presented proves, that we cannot form a general government in which

46

Letters all pow er can be safely lodged; and a little attention to the parts o f the one proposed will make it appear very evident, that all the powers proposed to be lodged in it. will not be then well deposited, either for the purposes o f government, or the preservation o f liberty. I will suppose no abuse o f pow ­ ers in those cases, in which the abuse o f it is not well guarded against— 1 will suppose the words authorising the general government to regulate the elec­ tions o f its ow n members struck out o f the plan, or free district elections, in each state, amply secured.— That the small representation provided Tor shall be as fair and equal as it is capable o f being made— l will suppose the judicial department regulated on pure principles, by future law s, as far as it can be by the constitution, and c o n siste n t) with the situation o f the country— still there will be an unreasonable accumulation o f powers in the general government, if all be granted, enumerated in the plan proposed The plan does not present a well balanced government. The senatorial branch of the legislative and the executive are substantially united, and the president, or the first executive m agistrate, may aid the senatorial interest when weakest, but never can effectually support the dem ocratic ,J how ever it may be oppressed:— the excellen cy, in my mind, o f a well balanced government is that it consists o f distinct branches, each sufficiently strong and independant to keep its own station, and to aid either o f the other branches which may occasionally want aid. The convention found that any but a small house o f representatives would be expensive, and that it would be impracticable to assem ble a large number o f representatives. Not only the determination o f the convention in this case, but the situation or the states, proves the impracticability o f collecting, in any one point, a proper representation. The formation o f the senate, and the smallness o f the house, being, therefore, the result o f ou r situation, and the actual state o f things, the evils which may attend the exercise of many pow ers in this national government may be considered as without a remedy. A ll officers are impeachable before the senate only— before the men by whom they are appointed, or who are consenting to the appointment of these officers. N o judgm ent o f conviction, on an impeachment, can be given unless two thirds o f the senators agree. Under these circum stances the right o f impeachment, in the house, can be o f but little importance: the house cannot exp ect often to convict the offender; and. therefore, probably, will but seldom or never exercise the right. In addition to the insecurity and Inconveniences attending this organization beforem em ioned. it may be ob ­ served. that it is extrem ely difficult to secure the people against the fatal effects o f corruption and influence. The pow er o f m aking any law' will be in the president, eight senators, and seventeen representatives, relative to the important objects enumerated in the constitution. Where there is a small representation a sufficient number to c a n y any measure, m ay. with ease, be influenced by bribes, offices and civilities; they may easily form private

47

2.8.31

2.8.32

2.8.33

The Federal Farmer juntoes. and out door m eetings, agree on measures, and carry them by silent votes. 2.8.34

Impressed- as l am . with a sense o f the difficulties there are in the way of forming the parts o f a federal government on proper principles, and seeing a government so unsubstantially organized, after so arduous an attempt has been made, I am led to believe, that powers ought to be given to it with great care and caution.14

2 $.35

In the second place it is necessary, therefore, to examine the extent, and the probable operations o f some o f those extensive powers proposed to be vested in this governm ent. These pow ers, legislative, execu tive, and judi­ cial. respect internal as w ell as external objecls. Those respecting external objects, as all foreign concerns, com m erce, im posts, all causes arising on the seas, peace and w ar. and Indian affairs, can be lodged no where else, with any propriety, but in this governm ent. Many pow ers that respect inter­ nal objecls ought clearly to be lodged in it; as those to regulate trade be­ tween the states, weights and measures, the coin or current monies, posto ffic es. naturalization , e t c . T hese po w ers may be exercised w ithout essentially effecting the internal police o f the respective stales: But powers to lay and collect internal taxes, to form the militia, to make bankrupt laws, and to decide on appeals, questions arising on the internal law s o f the respective slates, are o f a very serious nature, and carry with them almost all other powers These taken in connection with the others, and powers 10 raise armies and build navies, proposed to be lodged in this government, appear to me to comprehend all the essential powers in the community, and those which will be left to the states will be o f no great importance.

2.8.36

A pow er to lay and collect taxes at discretion, is, in itself, o f very great importance. By means o f taxes, the government may command the w hole or any part o f the subject’ s property. T axes may be o f various kinds; but there is a strong distinction between external and internal taxes. External taxes are impost duties, which are laid on imported goods; they may usually be collected in a few seaport towns, and o r a few individuals, though ultimately paid by the consum er, a few officers can collect them, and they can be carried no higher than trade will bear, or smuggling permit— that in the very nature o f com m erce, bounds are set to them.i? But internal taxes, as poll and land taxes, excises, duties on all written instruments, etc. may fix them selves on every' person and species o f property in the community; they may be carried to any lengths, and in proportion as they are exteoded. numerous officers must be em ployed to assess them, and to enforce the collection o f them. In the United N etherlands the general government has compleat pow ers, as to external taxation; but a s to internal taxes, it makes requisitions on the provinces. Internal taxation in this country is more im ­ portant. as the country is so very extensive. A s many assessors and collec­ tors o f federal taxes will be above three hundred miles from the seat o f the federal government as will be less. B esides, to lay and collect internal taxes.

4$

Letters in this extensive country, must require a great number o f congressional ordinances, immediately operating upon the body o f the people; these most continually interfere with the state law s, and thereby produce disorder and general dissatisfaction. tiU the one system o f laws or the other, operating upon the same subjects, shall be abolished. T hese ordinances alone, lo say nothing o f those respecting the militia, coin, com m erce, federal judiciary, etc. etc. will probably soon defeat the operations o f the stale laws and governments. Should the general government think it politic, as some administrations (if not all) probably will, to look for a support in a system o f influence, the

2.8.37

government will lake every occasion to multiply law s, and officers to exe­ cute them, considering these a s so many necessary props for its ow n sup­ port.26 Should this system o f policy be adopted, taxes more productive than the impost duties w ill, probably, be wanted to support the governm ent, and to discharge foreign dem ands, without leaving any thing for the dom estic creditors. The internal sources o f taxation then must be called into opera­ tion. and internal tax laws and federal assessors and collectors spread over this immense country A ll these circum stances considered. Is it w ise, pru­ dent. or safe, to vest (he pow ers o f laying and collecting internal taxes in the general governm ent, while imperfectly organized and inadequate, and to trust to amending it hereafter, and making it adequate to this purpose? It is not only unsafe but absurd to lodge pow er in a government before it is fitted to receive it? [Sir.] It is confessed that this pow er and representation ought to go together. Why give the pow er first? W hy give the pow er lo the few . w ho. when possessed o f it. may have address enough to prevent the in­ crease of representation? Why not keep the pow er, and, when necessary, amend the constitution, and add to its other parts this pow er, and a proper increase o f representation at the same time? Then men who may want the pow er will be under slrong inducements to Icl in the people, by their repre­ sentatives. into Ihc government, to hold Iheir due proportion o f this power. If a proper representation be impracticable, then w e shall see this power resting in the states, where it at present ought to be, and not inconsiderately given up. When l recollect how lately congress, conventions, legislatures, and people contended in the cause o f liberty, and carefully weighed the im­ portance o f taxation. I can scarcely believe w e are serious in proposing to vest the pow ers o f laying and collecting internal taxes in a government so imperfectly organized for such purposes. Should the United States be taxed by a house o f representatives o f tw o hundred members, which would be about fifteen members for Connecticut, twenty-five for M assachusetts, etc. still the middle and low er classes o f people could have no great share, in fact, in taxation. 1 am aware it is said, that the representation proposed by the new constitution is sufficiently numerous; it may be for many purposes; but to suppose that this branch is sufficiently numerous to guard the rights o f

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2.8.38

The Federal Fanner (he people in the administration o f the governm ent, in which the purse and sword is placed, seem s to argue that w e have forgot what the true meaning o f representation is. 1 am sensible also, that it is said that congress will nor attempt to lay and collect internal taxes; that it is necessary for them to have the pow er, though it cannot probably be exercised .1’— I admit that it is not probable that any prudent congress will attempt to lay and collect internal taxes, especially direct taxes: but this only proves, that the pow er would be

i . 8 .3 9

improperly lodged in congress, and that it might be abused by imprudent and designing men. 1 have heard several gentlemen, to get rid o f objections to this part o f the constitution, attempt to construe the powers relative to direct taxes, as those w ho object to it would have them: a s to these, it is said, that congress will only have pow er to make requisitions, leaving it to the states to lay and collect them .1* 1 see but very little colou r for this construction, and the attempt only proves that this part o f the plan cannot be defended. By this plan there can be no doubt, but that the pow ers o f congress will be complete a s to all kinds o f taxes whatever— Further, as to internal taxes, the state governm ents will have concurrent pow ers with the general governm ent, and both may tax the same objects in the same year: and the objection that the general governm ent may suspend a state tax. as a necessary measure for the promoting the collection o f a federal tax, is not without foundation.15— A s the slates ow e large debts, and have large dem ands upon them individually, there d e a rly would be a propriety in leaving in their possession exclusively, some o f the internal sources o f taxation, at least until the federal repre­ sentation shall be properly enercased: T h e pow er in the general government to lay and collect internal taxes, will render its powers respecting armies, navies and the militia, the more exceptionable. B y the constitution it is proposed that congress shall have pow er " t o raise and support arm ies, but no appropriation o f money to that use shall be for a longer term than two years; to provide and maintain a navy : to provide for calling forth the militia to execute the laws o f the union, suppress insurrections, and repel in­ vasions: to provide for organizing, arming, and disciplining the militia: re­ serving to the states the right to appoint the officers, and to train the militia according to the discipline prescribed by congress; congress will have un­ limited power to raise arm ies, and to engage officers and men for any number o f years: but a legislative act applying m oney for their support can have operation fo r no longer term than two years, and if a subsequent congress do not within the tw o years renew the appropriation, or further appropriate monies for the use o f the a n n y . the arm y will be left to take care o f itself. When an army shall once be raised for a number o f years, it is not probable that it will find much difficulty in getting congress to pass taws for applying m onies to its support. I see so many men in Am erica fond o f a standing army, and especially am ong those who probably will have a large share io administering the federal system : it is very evident to m e. that w e

50

Letters shall have a large standing army as soon as the monies to support them can he possibly found. An army is a very agreeable place o f em ploym ent for the young gentlemen o f many families A pow er to raise arm ies must be lodged some where; still this will not justify the lodging this pow er in a bare major­ ity o f so few men without any checks; or in the governm ent in which the great body o f the people, in the nature o f things, will be only nominally represented. In the state governm ents the great body o f the people, the yeom anry, etc. o f the country, are represented: It is true they w illchuse the members o f congress, and may now and then chuse a man o f their ow n w ay o f thinking; but it is impossible for forty, or thirty thousand people in this country, one lime in ten to find a man who can possess similar feelings, views, and interests with them selves: Pow ers to lay and collect taxes and to raise armies are o f the greatest moment; for carrying them into effe ct, laws need not be frequently made, and the yeom anry, etc o f the country ought substantially to have a check upon the passing o f these laws; this check ought to be placed in the legislatures, or at least, in the few men the common people o f the country, w ill, probably, have in congress, in the true sense o f the word. '"from am ong them selves.*’ 30 It is true, the yeom anry o f the country possess the lands, the weight o f property, possess arms, and are too strong a body o f men to be openly offended— and, therefore, it is urged, they will lake care o f them selves, that men who shall govern will not dare pay any disrespect to their opinions. Jt is easily perceived, that if they have not their proper negative upon passing laws in congress, or on the passage o f law s relative to taxes and arm ies, they may in twenty or thirty years be by means imperceptible to them, totally deprived o f that boasted weight and strength: This may be done in a great measure b y congress, if disposed to do it. by modelling the militia. Should one fifth, or one eighth part o f the men capable o f bearing arms, be made a select militia, a s has been proposed, and those the young and ardent part o f the com m unity, possessed o f but little or no property, and all the oihers put upon a plan that will render them o f no importance, ihe form er will answer all the purposes o f an arm y, while the latter will be defenceless The state must train the militia in such form and according to such system s and rules a s congress shall prescribe: and the only actual influence the respective stales will have respecting the militia will be in appointing the officers. 1 sec no provision made for calling out the p a r e comm iiatus for executing the laws o f the union, but provision is made for congress to call forth the militia for the execution o f them— and the militia in general, or any select p a n o f it. may be called out under military officers, instead o f the sheriff to enforce an execution o f federal law s, in the first instance and thereby introduce an entire military execution o f the law s.31 1 know that pow ers to raise taxes, to regulate the military strength o f the community on some uniform plan, to provide for its defence and internal order, and for duly executing the laws, must be lodged som ewhere; but still w c ought not so to lodge them, as evidently to give one order o f men in the

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The Federal Farmer com m unity, undue advantages over others; or commit the m any to the m ercy, prudence, and moderation o f the few . And so fa r a s it may be necessary to lodge any o f the peculiar pow ers in the general government, a more safe exercise Df them ought to be secured, by requiring the consent o f two-thirds or three-fourths o f congress thereto— until the federal repre­ sentation can be increased, so that the dem ocratic members in congress may stand some tolerable chance o f a reasonable negative, in behalf o f the 2.8.40

numerous, important, and dem ocratic part o f the community. 1 am not sufficiently acquainted with the laws and internal police o f all the states to discern fully, how general bankrupt law s, made by the union, would effect them, or promote the public good. I believe the property o f debtors, in the several states, is held responsible for their debts in modes and forms very different f f uniform bankrupt laws can be made without

2.8.41

producing real and substantial inconveniences. I wish them to be made by congress.53 There are some powers proposed to be lodged in the general government in the judicial department. J think very unnecessarily.31 1 mean powers respecting questions arising upon the internal laws o f the respective states It is proper the federal judiciary should have powers co-extensive with the federal legislature— that is. the power o f deciding finally on the laws o f the union. B y A n . 3. S ect. 2 the pow ers o f the federal judiciary are extended (among other things) lo all cases between a state and citizens o f another slate— between citizens o f different slates— between a state or the citizens thereof, and foreign states, citizens or subjects. Actions in all these cases, except against a state governm ent, are now brought and finally determined in the law courts o f the states respectively; and as there are no words to exclude these courts o f their jurisdiction in these cases, they will have concurrent jurisdiction with the inferior federal courts in them: and. there­ fore. if the new constitution be adopted without any amendment in this respect, all those numerous actions, now brought in the stale courts b e­ tween our citizens and foreigners, between citizens o f different states, by stale governm ents against foreigners, and by state governm ents against citi­ zens o f other states, may also be brought in the federal courts; and an appeal will lay m them from the state courts, or federal inferior courts, to the supreme judicial court o f the union. In almost all these cases, either party may have the trial by ju ry in the state courts, excepting paper money and tender laws, which are w isely guarded against in the proposed constitution, justice may be obtained in these courts on reasonable terms; they must be more competent to proper decisions on the laws o f their respective states, lhan the federal courts can possibly be. 1 do not. in any point o f view , see the need o f opening a new jurisdiction lo these causes— o f opening a new scene o f expensive luw suits— o f suffering foreigners, and citizens o f differ­ ent stales, lo drag each other many hundred miles into the federal courts. It is true, those courts may be so organized b y a w ise and prudent legislature.

5*

Letters as to make the obtaining o f justice in them tolerably easy; they may in general be organized on the common law principles o f the country. But this benefit is by no means secured by the constitution. T h e trial b y ju ry is secured only in those few criminal cases, to which the federal laws will extend— as crimes committed on the seas, against the laws o f nations, treason, and counterfeiting the federal securities and coin: But even in these cases, the jury trial o f the vicinage is not secured— particularly in the large states, a citizen may be tried for a crim e committed in the state, and yet tried in some states 500 miles from the place where it was committed; but the jury trial is not secured at alt in civil causes. Though the convention have not established this Inal, it is to be hoped that congress, in putting the new system into execution, will do it by a legislative act. in all cases in which it can be done with propriety. W hether the jury trial is not excluded (from] the supreme judicial court, is an important question. B y Art. 3. S ect 2. all cases affecting ambassadors, other public ministers, and consuls, and in those cases in which a state shall be party, the supreme court shall have jurisdic­ tion. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to W and fa rt, with such exception, and under such regulations, as the congress shall make. B y court is understood a court consisting o f ju d ges; and the idea o f a ju ry is excluded. This court, or the judges, are to have jurisdiction on appeals, in all the cases enumerated, as to law and fact: the judges are to decide the law and try the fact, and the trial o f the fact being assigned to the judges by (he constitution, a jury for trying the fact is excluded; how ever, under the exceptions and powers to make regulations, congress m ay. perhaps introduce the ju r y , to try the fact in most necessary cases.” There can be but one supreme court in which the final jurisdiction will

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centre in all federal causes— excep t in cases where appeals by law shall not be allowed: The judicial pow ers o f the federal courts extends in law and equity to certain cases: and. therefore, the powers to determine on the law. in equity, and as to the fact, all will concentre in the supreme court:— These powers, which by this constitution are blended in the same hands, the same judges, are in Great-Britain deposited in different hands— to wit. the deci­ sion o f the law in the law judges, the decision in equity in the chancellor, and the trial o f the fact in the ju ry. It is a very dangerous thing to vest in the same judge power to decide on the law. and also general powers in equity; for if the law restrain him. he is only to step into his shoes o f equity, and give what judgment his reason or opinion may dictate; w e have no precedents in ibis country, as yet. to regulate the divisions in equity as in Great Britain; equity, therefore, in the supreme court for many years wfll be mere discre­ tion. I confess in the constitution o f this supreme court, as left by the constitution. I do not set a spark o f freedom or a shadow o f our ow n or the British common law. This court is to have appellate jurisdiction in all the other cases before

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The Federal Fanner mentioned: Many sensible men suppose that eases before mentioned re­ spect, a s well the criminal cases as the civil ones, mentioned antecedently in the constitution, if so an appeal is allowed in criminal cases— contrary to the usual sense o f law . H ow far it may be proper to admit a foreigner or the citizen o f another state to bring actions against state governm ents, which have failed in performing so many promises made during the w ar. is doubt­ ful: H ow far it m ay be proper so to hum ble a stale, a s to oblige it to answer to an individual in a court o f law , is w orthy o f consideration; (he stales are now subject to no such actions; and this new jurisdiction will subject the states, and many defendants to actions, and processes, which were not in the contemplation o f the parties, when the contract was made; all engage­ ments existing between citizens o f different stales, citizens and foreigners, states and foreigners: and states and citizens o f other states were made the parties contemplating the remedies then existing on the laws o f the states— and the new rem edy proposed to be given in the federal courts, can be founded on no principle whatever. Y ou r’ s & c. The Federal Farmer.

IV O ctober 12th. 1787. 2.8.44

D ear Sir, It will not be possible to establish m the federal courts the ju ry trial o f the vicinage so well as in the state courts. Third. There appears to me to be not only a premature deposit o f some important pow ers in the general governm ent— but many o f those deposited there are undefined, and may be used to good o r bad purposes as honest or designing men shall prevail. B y Art. t. Sect. 2. representatives and direct taxes shall be apportioned among the several states, etc.— same art, sect. 8. the congress shall have pow ers to lay and collect taxes, duties, etc. for the com m on defence and general w elfare, but all duties, imposts and excises, shall be uniform throughout the United States: B y the first recited clause, direct taxes shall be apportioned on the states. This seem s to favour the idea suggested by some sensible men and writers, that congress, a s to direct taxes, will only have pow er to make requisitions.3* but the latter clause, pow er to lay and collect taxes, etc seem s clearly to favour the contrary opinion and, in my mind, the true one, that congress shall have pow er to tax immediately individuals, without the intervention o f the stare legislatures!;] in fact the first clau se appears to m e only to provide that each state shall pay a certain portion o f the tax. and the latter to provide that congress shall have

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Letters power to lay and collect taxes, that is to assess upon, and to collect o f the individuals in the state, the statef'Js quota; but these still I consider as undefined powers, because judicious men understand them differently. [t is doubtful whether the vice president is to have any qualifications: none are mentioned; but he may serve as president, and it may be inferred, he ought to be qualified therefore as the president; but the qualifications of the president are required only o f the person to be elected president. By an. the 2, sect. 2. "B u t the congress may by law vest the appointment o f such inferior officers as they think proper in the president alone, in the courts of law. or in the heads of the departments:" Who are inferior officers? May not a congress disposed to vest the appointment o f all officers in the president, under this clause, vest the appointment o f almost every officer in (he pres­ ident alone, and destroy the check mentioned in the first pan o f the clause, and lodged in the senate. It is true, this check is badly lodged, but then some check upon the first magistrate in appointing officers, ought it appears by the opinion of the convention, and by the general opinion, to be established in the constitution. By art. sect. 2. the supreme court shall have appellate jurisdiction as to law and facts with such exceptions, etc. to what extent is it intended the exceptions shall be carried— Congress may carry them so far as to annihilate substantially the appellate jurisdiction, and the clause be ren­ dered of very little importance. 4th. There are certain rights which we have always held sacred in the United States, and recognized in all our constitutions, and which, by the adoption o f the new constitution in its present form, will be left unsecured ’ *’ By article 6, the proposed constitution, and the laws o f the United Slates, which shall be made in pursuance thereof; and all treaties made, or which shall be made underthe authority of the United Stales, shall be the supreme law of the land; and the judges in every stale shall be bound thereby: any thing in the constitution or laws o f any state to the contrary notwithstand­ ing. It is to be observed that when the people shall adopt the proposed con­ stitution it will be their last and supreme act; it will be adopted not by the people of New-Hampshire. Massachusetts, etc. but by the people o f the United Stales;3’ and wherever this constitution, or any part o f it. shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United Stales, it will entirely abolish them and do them away: And not only this, but the laws o f the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, nghts. laws or constitutions heretofore established, they will also entirely abolish them and do them away. By the article before recited, treaties also made under the authority o f the United States, shall be the supreme, law: It is not said that these treaties shall be made in pursuance of the constitution— nor are there any con-

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2 8 47

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The Federal Farmer stitutionaj bounds set to those who shall m ake them: The president and (wo thirds o f the senate will be em powered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power m the president and sen­ ate is absolute, and ihe judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty, whether it be practicable to set any bounds to those who make treaties. I am not able to say: if not. it proves that this pow er ought to be more safely lodged. 2.8.49

The federal constitution, the laws o f congress made in pursuance o f the constitution, and all treaties must have full force and effect in all parts o f the United Slates; and all other law s, rights and constitutions which stand in their way must yield: it is proper the national laws should be supreme, and superior to state or district laws: but then the national laws ought to yield to unalienable or fundamental rights— and national taws, made by a few men. should extend only to a few national objects. This will not be the case with the laws o f congress: T o have any proper idea o f their extent, we must carefully exam ine Ihe legislative, execu tive and judicial powers proposed 10 be lodged in the general governm ent, and consider them in connection with a general clause in a rl. t . sect. 8. in these words (after inumerating a number o f powers) “ T o make all laws which shall be necessary and proper for carrying into execution the foregoing pow ers, and all other pow ers vested by this constitution in the government o f the United States, or in any d e­ partment or officer thereof .1' — The pow ers o f this government as has been observed, extend to internal as well as external ob jects, and to those objects to which all others are subordinate: it is almost impossible to have a just conception o f these powers, or o f the extent and number o f the laws which may be deemed necessary and proper to carry them into effect, till w e shall com e to exercise those powers and make the law s. In making laws to carry those pow ers into effe ct, it is to be expected, that a wise and prudent congress will pay respect to the opinions o f a free people, and bottom their laws cm those principles which have been considered as essential and fun­ damental in the Brilish. and in ou r government. But a congress o f a different character will not be bound by the constitution to pay respect to those principles.

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It is said, that when the people make a constitution, and delegate powers that all powers not delegated by them to those who govern is [riel reserved in the people;** and that the people, in the present case, hove reserved in them selves, and in their state governm ents, ev ery right and pow er not e x ­ pressly given by the federal constitution to those who shall administer the national g o v e r n m e n t I t is said on the other hand, that the people, when they make a constitution, yield all pow er not expressly reserved to them­ selves.4* The truth is, in either case, it is mere matter o f opinion and men usually take cither side o f the argument, as will best answer their purposes:

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Letters But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favourably for encreasing their ow n powers; all w ise and prudent people, in forming constitutions. Have drawn the line, and carefully described the pow ers parted with and the pow ers reserved. By the state constitutions, certain rights have been re­ served in the people; or rather, they have been recognized and established in such a manner, that state legislatures are bound to respect them, and to make no laws infringing upon them. The stale legislatures are obliged to take notice o f the bills o f rights o f their respective states. The bills o f nghts. and the state constitutions, are fundamental com pacts only between those who govern, and the people o f the same state. In the year 1788 the people o f the United States make a federal constitulion, which is a fundamental compact between them and their federal rulers: these n ile rv in the nature o f things, cannot be bound to take notice o f any other com pact. It would be absurd for them, in making law s, to look over thirteen, fifteen, o r tw enty state constitutions, to see what rights are established a s fundamental, and must not be infringed upon, in making laws in the society. It is true, they would be bound to do it if the people, in their federal com pact, should refer to the state constitutions, recognize all pans not inconsistent with the federal constitution, and direct their federal rulers to take notice o f them accordingly, but this is not the case, as the plan stands proposed at present; and it is absurd, to suppose so unnatural an idea is intended o r implied. I think my opinion is not only founded in reason, but I think it is supported by the report o f the convention itself. If there are a number o f rights established by the state constitutions, and which will re­ main sacred, and the general government is bound to lake notice o f them— it must take notice o f one as well as another, and if unnecessary to recognize o r establish one by the federal constitution, it would be unnecessary to recognize or establish another by it.41 If the federal constitution is to be construed so far in connection with the state constitutions, as to leave the trial by jury in civil causes, for instance, secured; on the same principles it would have left the trial by jury in criminal causes, the benefits o f the writ o f habeas corpus, etc. secured; they all stand on the same footing; they are the common rights o f Americans, and have been recognized by the state con ­ stitutions: But the convention found it necessary to recognize o r re-establish the benefits o f lhal writ, and the jury trial in criminal cases. A s to expast fa c to laws, the convention has done the same in one case, and gone further in another. It is part o f the com pact between Ihe people o f each state and their rulers, that no expost fa c to law s shall be made. But the convention, by Art. 1 Sect. 10 have put a sanction upon this pari even o f the state com pacts. In fact, the 9th and toih Sections in Art. I. in the proposed constitution, are no more nor less, lhan a partial bill o f rights; they establish certain principles as part o f the compact upon which the federal legislators and officers can never infringe It is here wisely stipulated, that the federal legislature shall

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The Federal Farmer never pass a bill o f attainder, or expost fa c to law. that no tax shall be laid on articles exported, etc. The estab lish in gof one right implies the necessity o f 2.8.52

establishing another and similar one. O n the whole, the position appears to me to be undeniable, that this bill o f rights ought to be carried farther, and som e other principles established, as a part o f this fundamental com pact between the people o f the United States

2.8.53

and their federal rulers. It is true, w c are not disposed to differ much, ai present, about religion: but when w e are making a constitution, it is to be hoped, for ages and millions yet unborn, w hy not establish the free exercise o f religion, as a part o f the national com pact. There are other essential rights, which we have justly understood to be the rights o f freemen: a s freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing m en's papers, property, and persons. T h e trials b y ju ry in civil causes, it is said, van es so much in the several states, that no words could be found for the uniform establishment o f it„4; If so. the federal legislation will not be able to establish it by any general law s. I confess I am o f opinion it may be established, but not in that b en e ficia l m anner in w h ich w e m ay e n jo y it. fo r th e rea so n s b e­ fore mentioned. When I speak o f the ju ry trial o f the vicinage, or the trial o f the fact in the neighbourhood.— I do not lay so much stress upon the cir­ cum stance o f our being tried by our neighbours; in this enlightened country men may be probably impartially tried by those who do not live very near them but the trial o f facts in the neighbourhood is o f great importance in other respects. Nothing can be more essential than the cross examining witnesses, and generally before the triers o f the facts in question. T h e com ­ mon people can establish facts with much more ease with oral than written evidence; when trials of facts are removed lo a distance from the homes o f the parties and w itnesses, oral evidence becom es intolerably expensive, and the parlies must depend on written evidence, which to the common people expensive and almost useless; it must be frequently taken ex parte, and

js

but very seldom leads to the proper discovery o f truth 1.8.54

The trial by ju ry is very important in another point o f view . It is essential in every free country, that com m on people should have a pan and share o f influence, in the judicial as well a s in the legislative department. T o hold open to them the offices o f senators, judges, and offices to fill which an expensive education is required, cannot answ er any valuable purposes for them: they are not in a situation to be brought forward and to fill those offices; these, and most other offices o f any considerable im portance, will be occupied by the few . T h e few . the well bom . etc. a s Mr. Adams calls them,4’ in judicial decisions a s well as in legislation, are generally disposed, and very naturally loo. to favour those o f their own description.

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The trial by ju ry in the judicial department, and the collection o f the people by their representatives in the legislature, are those fortunate in-

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Letters ventions which have procured for them, in this country, their true propor­ tion o f influence, and the wisest and most fit means o f protecting them selves in the community Their situation, as jurors and representatives, enables them to acquire information and knowledge in the affaire and government o f the society; and to com e forward, in turn, as the centinels and guardians o f each other. 1 am very sorry that even a few o f our countrymen should consider jurors and representatives in a different point o f view , as ignorant troublesome bodies, which ought not to have any share in the concerns o f government. I confess 1 do not see in what cases the congress can . with any pretence of right, make a law to suppress the freedom o f the press: though I am not clear, that congress is restrained from laying any duties whatever on print­

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ing. and from laying duties particularly heavy on certain pieces printed, and perhaps congress may require large bonds for the payment o f these duties Should the printer say. the freedom o f the press was secured by the con­ stitution o f the stale in which he lived, congress might, and perhaps, with great propriety, answ er, that the federal constitution is the only com pact existing between them and the people: in (his com pact the people have named no others, and therefore congress, in exercising the powers assigned them, and in making law s to carry them into execution, are restrained by nothing beside the federal constitution, any more than a state legislature is restrained by a compact between (he magistrates and people o f a county, city, or town o f which Ihe people, in forming the state constitution, have taken no nonce. It is not my object to enumerate rights o f inconsiderable importance: but there arc others, no doubt, which ought to be established as a fundamental part o f the national sysiem . It is worthy observation, that all ireaiies are made by foreign nations with a confederacy o f thirteen stales— that the western country is attached to thirteen states— thirteen states have jointly and severally engaged lo pay the public debts.— Should a new government be formed o f nine. ten. eleven, or iw elve states, those treaties could not be considered as binding on the foreign nations who made them. H ow ever. I believe the probability to be. (hat if nine stales adopt the constitution, the others will. It may also be worthy our examination, how far the provision for amend­ ing this plan, when it shall be adopted, is o f any importance. N o measures can be taken towards amendments, unless two-thirds o f the congress, or two-thirds o f the legislatures o f the several slates shall agree.— While power is in the hands o f the people, o r dem ocratic part o f the com m unity, more especially as at present, il is easy, according to the genera! course o f human affairs, for the few influential men in the community, to obtain conventions, alterations in governm ent, and to persuade the common people they may change for the better, and to get from them a part o f the power: But when power Ls once transferred from the many to the few . all changes become

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The Federal Fanner extrem ely difficult: the govem m enl. in this case, being beneficial to lh e fe w , they will be exceedingly artful and adroit in preventing any measures which may lead to a change: and nothing will produce it. but great exertions and severe struggles on the part o f the com m on people E very man o f reflection must see. that the change now proposed, is a transfer o f power from the many to the few . and the probability is. the artful and ever active aristoc­ racy. wilt prevent all peaceable measures for changes, unless when they shall discover some favourable moment to increase their own influence.44 I am sensible, thousands o f men in the United States, arc disposed to adopt the proposed constitution, though they perceive u to be essentially defective, under an idea that amendments o f it. m ay be obtained when necessary. This is a pernicious idea, it argu esa servility o f character totally unfit for the support o f free government: it is very repugnant to that perpetual jealousy respecting lib erty, so absolu tely n ecessary in all free sta les, spoken o f by Mr. Dickinson.4' — H ow ever, if our countrymen are so soon changed, and the language of 1774. is becom e odious to them, it will be in vain to use the language o f freedom, or to attempt 10 rouse them to free enquiries: But I shall n ever believe this is the case with them, w hatever present appearances may be. till I shall have very strong evidence indeed o f it. Y o u r's. & c. The Federal Farmer.

V O ctober 13th. 1787 Dear Sir. 2.8-59

Thus \ have examined the federal constitution as far as a few days leisure would permit. It opens to my mind a new scene: instead o f seeing powers cautiously lodged in the hands o f numerous legislators, and many magis­ trates. we see all important powers collecting in one centre, where a few men will possess them almost at discretion. And instead o f ch ecks in the formation o f the governm ent, to secure the rights o f the people against the usurpations o f those they appoint to govern, we are to understand the equal division o f lands among ou r people, and the strong arm furnished them by nature and situation, are to secure them against those usurpations. If there are advantages in the equal division o f our lands, and the strong and manly habits o f our people, w c ought to establish governm ents calculated to give duration to them, and not govem m enls which never can work naturally, till that equality o f property, and those free and manly habits shall be de­ stroyed: these evidently are not the natural basis o f the proposed constitu­ tion. No man o f reflection, and skilled in the science o f governm ent, can

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Letters suppose these will move on harmoniously together for ages, or even for fifty years.** A s to the little circum stances com mented upon, by some writers, with applause— as the age o f a representative, o f the president, etc.— they have, in my mind, no weight in the general tendency o f the system . There are. how ever, in my opinion, many good things in the proposed system . It is founded on elective principles, and the deposits o f pow ers in different hands, is essentially right. The guards against those evils we have experienced in some states in legislation are valuable indeed: but the value o f every feature in this system is vastly lessened for the want o f that one important feature in a free governm ent, a representation o f the people.*7 Because w e have sometimes abused dem ocracy. 1 am not am ong those men w ho think a d em o cratic branch a n u isan ce: w hich branch shall be sufficiently numerous, to admit some o f the best informed men o f each order in the community into the administration of government. While the radical defects in the proposed system are not so soon dis­ covered. some temptations to each state, and to many classes o f men to adopt it. are very visible. It uses the democratic language o f several o f the

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state constitutions, particularly that o f Massachusetts: the eastern states will receive advantages so far as the regulation o f trade, by a bare majority, is committed to it: Connecticut and Ncw-Jersey will receive their share o f a general impost: The middle states will receive the advantages surrounding the seal o f governm ent The southern states will receive protection, and have their negroes represented in the legislature, and large back countries will soon have a majority in it. This system promises a large field o f em ­ ployment lo military gentlemen, and gentlemen o f the law ; and in case the government shall be executed without convulsions, it will afford security to creditors, lo Ihc clergy, salary-men and others depending on m oney pay­ ments. So far as the system promises justice and reasonable advantages, in these respects, il ought to be supported by all honest men: but w henever it promises unequal and improper advantages to any particular states, or or­ ders o f men. it ought to be opposed. 1 have, in the course o f these letters observed, that there are many good things in the proposed constitution, and 1 have endeavoured to point out many important defects in it I have admitted that we want a federal system— that we have a system presented, which, with several alterations may be made a tolerable good one— I have admitted there is a well founded uneasiness among creditors and mercantile men. In this situation o f things, you ask me what 1 think ought to be done? My opinion in this case is only the opinion o f an individual, and so far only as it corresponds with the opinions o f the honest and substantial p a n o f the community, is it entitled to consideration. Though I am fully satisfied that the state conventions ought most seriously to direct their exertions to altering and amending the system proposed before they shall adopt it— yet I have nol sufficiently exam ined the subject, or formed an opinion, how far it will be practicable for those con-

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Tbe Federal Farmer ventions to carry (heir amendments. A s to (he idea, that it will be in vain for (hose conventions to attempt amendments, it cannot be admitted; it is im­ possible to say whether they can o r not until the attempt shall be made: and when it shall be determ ined, by experience, that the conventions cannot agree in amendments, it will then be an important question before the people o f the United States, whether they will adopt or not the system proposed in its present form. This subject o f consolidating the states is new; and because forty or fifty men have agreed in a system , to suppose the good sense o f this country, an enlighlened nation, must adopt it without examination, and though in a state o f profound peace, without endeavouring to amend those p a n s they perceive are defective, dangerous to freedom , and destructive o f the valuable principles o f republican government— is truly humiliating. It is true Ihere may be danger in delay; but there is danger in adopting the system in its present form; and 1 see the danger in either case will arise principally from the conduct and view s o f tw o very unprincipled parties in the United States-—tw o fires, between which the honest and substantial people have long found them selves situated. One party is com posed o f little insurgents, men in debt, w ho want no law . and who want a share o f the property o f others; these are called levellere. Shayites. etc. The other party is composed o f a few . bul more dangerous men. with their servile dependents, these avariciously grasp at all pow er and property: you may discover in all the actions o f these men. an evident dislike to free and equal governm ent, and they will go system atically to work to change, essentially, the form s o f government in Ihis country: these are called aristocrats. Mfonarch]ites 1?]. e tc. etc. Between these tw o parties is the weight o f the community; the men o f middling property, men not in debt on the one hand, and men. on Lhe other, content with republican governm ents, and not aiming at immense fortunes, offices, and power. In 17^6. the litlle insurgents, the levellers, came forth, invaded the rights o f others, and attempted to establish govern­ ments according to their wills. Their movem ents evidently gave encourage­ ment to the other party, which, in 17E7. has taken the political field, and with its fashionable dependants, and the tongue and the pen. is endeavour­ ing to establish in great haste, a politer kind o f government. These two parties, which will probably be opposed or united as it may suit their inter­ ests and view s, arc really insignificant, com pared with lhe solid, free, and independent p an o f the com m unity. It Is not my intention to suggest, that either o f these parties, and the real friends o f the proposed constitution, are the same men. The fact is. these aristocrats support and hasten the adoption o f the proposed constitution, m erely because they think it is a stepping stone to their favorite object. 1 think 1 am well founded in this idea; I think the general politics o f these men support it. as well as the common observa­ tion among them, That the proffered plan is the best that can be got at present, it will do for a few years, and lead to something better. The sensible and judicious part o f the com m unity will carefully weigh all these circum-

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Letters stances; they will view the late convention a s a respectable assem bly o f men— Am erica probably never will see an assem bly o f men o f a tike number, more respectable. But the members o f the convention met without knowing the sentiments o f one man in ten thousand in these states, respect­ ing the new ground taken. Their doings are but the first attempts in the most important scene ever opened. Though each individual in the state con­ ventions will not, probably, be so respectable as each individual in the federal convention, yet as the state conventions will probably consist o f fifteen hundred or tw o thousand men o f abilities, and versed in the science o f government, collected from alt p an s o f the community and from all orders o f men. it must be acknow ledged that the weighi o f respectability will be in them— In them will be collected the solid sense and the real political character o f the country. Being revisers o f the subject, they will possess peculiar advantages. T o say that these conventions ought not to attempt, coolly and deliberately, the revision o f the system , or that they cannot amend it. is very foolish or very assuming. If these conventions, after e x ­ amining the system , adopt it. I shall be perfectly satisfied, and wish to see men make the administration o f the government an equal blessing to all orders o f men. I believe the great body o f our people to be virtuous and friendly to good governm ent, to the protection o f liberty and property: and it is the duly o f all good men. especially o f those who arc placed as centmels to guard their rights— it is their duty to examine into the prevailing politics o f parties, and to disclose them— while they avoid exciting undue suspicions, to lay facts before the people, which will enable them to form a proper judgment. Men who wish the people o f this country to determine for them­ selves. and deliberately to fit the government to their situation, must feel some degree o f indignation at those attempts to hurry the adoption o f a system , and to shut the d oor against examination. T he very attempts create suspicions, that those who make them have secret view s, or see some defects in the system , which, in the hurry o f affairs, they expect will escape thee ye o f a free people. What can be the views o f those gentlemen in Pennsylvania, w ho pre­ cipitated decisions on this subject?4* What can be the view s o f those gen­ tlemen in Boston, who countenanced the Pnnlcrs in shutting up the press against a fair and free investigation o f this important system in the usual w a y.4* The members o f the convention have done their duty— why should some o f them fly to their states— alm ost forget a propriety o f behaviour, and precipitate measures for the adoption o f a system o f their ow n making? I confess candidly, when i consider these circum stances in connection with the unguarded p a n s o f the system I have mentioned. I feel disposed to proceed with very great caution, and to pay more attention than usual to the conduct o f particular characters. If the constitution presented be a good one, it will stand the test with a well informed people; all arc agreed there shall be state conventions to examine it; and w e must believe it will be

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The federal Farmer adopted, unless w e suppose it is a bad one. or that those conventions will make false divisions respecting it. I admit improper measures are taken against the adoption o f the system a s well (as) for it— all who object to (he plan proposed ought to point out the defects objected to, and to propose those amendments with which they can accept it. or to propose some other system o f governm ent, that the public mind may be known, and that w e may be brought to agree in some system o f governm ent, to strengthen and e x e ­ cute the present, or to provide a substitute- 1 consider the field o f enquiry just opened, and that we are to look to the state conventions for ultimate decisions on the subject before us; it is not to be presumed, that they will differ about small amendments, and lose a system when they shall have made it substantially good; but touching the essential amendments, it is to be presumed the several conventions will pursue the most rational measures to agree in and obtain them; and such defects as they shall discover and not rem ove, they will probably notice, k eep them in view as the ground work o f future amendments, and in the firm and manly language which every free people ought to use. will suggest to those who may hereafter administer the governm ent, that it is their expectation, that the system will be so organized by legislative acts, and the government so administered, as to render those defects as little injurious as possiblt. O u r countrym en are entitled to an honest and faithful governm ent; to a governm ent o f laws and not o f men; and also to one o f their chusing— as a citizen o f the country. I wish to see these ob jects secured, and licentious, assuming, and overbearing men re­ strained; if the constitution or social com pact be vague and unguarded, then w e depend wholly upon the prudence, wisdom and moderation o f those who manage the affairs o f governm ent; or on w hat, probably, is equally un­ certain and precarious, the success o f the people oppressed by the abuse o f governm ent, in receiving it from the hands o f those w ho abuse it. and placing it in the hands o f those who will use it well. 2.8.64

In every point o f view , therefore, in which I have been able, as yet. to contemplate this subject, [ can discern but one rational mode o f proceeding relative to it; and that is to examine it with freedom and candour, to have State conventions some months hence, which shall examine coolly every article, clause, and word in the system proposed, and to adopt it with such amendments as they shall think fit. H ow fa r the stale conventions ought to pursue the mode prescribed by the federal convention o f adopting or re­ jecting the plan in toto, 1 leave it to them to determine- O ur examination o f the subject hitherto has been rather o f a general nature. The republican characters in the several states, who wish to make this plan more adequate to security o f liberty and property, and to the duration o f the princqslesof a free governm ent, w ill, no doubt, collect their opinions to certain points, and accurately define those alterations and amendments they wish; if it shall be found they essentially disagree in them , the conventions will then be able to

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Letters determine whether to adopt the plan as it is. or what will be proper to be done. Under these impressions, and keeping in v « w the improper and unadvis-

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able lodgment o f powers in the genera] governm ent, organized as it at pres­ ent is, touching internal taxes, armies and militia, the elections o f its own members, causes between citizens o f different states, etc. and the want o f a more perfect bill o f rights, etc. I drop the subject for the present, and when l shall have leisure to revise and correct my ideas respecting it, and to collect into points the opinions o f those who wish to make the system more secure and safe, perhaps I may proceed to point out particularly for your consid­ eration. the amendments which ought to be ingrafted into this system , not only in conform ity to m y ow n. but the deliberate opinions o f others— you will with me perceive, that (he objections to the plan proposed m ay, by a more teisure examination be set in a stronger point o f view , especially the important one. that there is no substantial representation o f the people provided for in a government in which (he most essentia] pow ers, even as to the internal police o f the country, is proposed to be lodged. I think the honest and substantial part o f the community will wish to see this system altered, perm anency and consistency given to the constitution we shall adopt; and therefore they will be anxious to apportion the powers to the features and organization o f the governm ent, and to see abuse m the exercise o f power more effectually guarded against. U is suggested, that state o fficers, from interested m otives w ill op p o se the con stitu tion presented— ! see no reason for this, their places in general will not be

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effecied . but new openings to offices and places o f profit must evidently be made by (he adoption o f the constitution in its present form.

Your's & c. The Federal Fanner.

[The Additional Letters] VI D ecem ber 25. 1787. Dear Sir. My form er letters to you, respecting the constitution proposed, were calculated merely to lead to a fuller investigation o f (he subject; having more extensively considered it. and the opinions o f others relative to it, 1 shall, in a few letters, more particularly endeavour to point out the defects, and

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The Federal Farmer propose amendments. I shall in this m ake only a few general and in­ troductory observations, which, in the present state o f the momentous question, m ay not be improper; and I leave you , in all cases, to decide by a careful exam ination o f m y w orks, upon the weight o f my arguments, the propriety o f my rem arks, the uprightness o f my intentions, and the extent of my candor— I presume 1 am writing to a man o f candor and reflection, and not to an ardent, peevish, o r impatient man 2.8.68

When the constitution was first published, there appeared to prevail a misguided zeal to prevent a fair unbiassed examination o f a subject o f in­ finite importance to this people and their posterity— to the cause o flib crty and the rights o f mankind— and it w as the duly o f those who saw a restless ardor, or design, attempting to mislead the people by a parade o f names and misrepresentations, to endeavour to prevent their having their intended effects. T h e only w ay to stop the passions o f men in their career is, coolly to

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state facts, and deliberately to avow the truth— and to do this w e arc fre­ quently forced into a painful view o f men and measures. Since f w rote to you in O ctober. 1 have heard much said, and seen many pieces written, upon the subject in question; and on carefully examining them on both sides, 1 find much less reason for changing my sentiments, respecting the good and defective parts o f the system proposed than I expected— T h e opposers. as well as Ihe advocates o f it. confirm me in my opinion, that this system affords, all circum stances considered, a belter basis to build upon than the confederation. And as to the principal defects, as the smallness o f the representation, the insecurity o f elections, the undue mixture o f pow ers in the senate, the insecurity o f some essential rights. See, the opposition appear*, generally, to agree respecting them, and many o f the ablest advocates virtually to admit them— C lear it is. the latter do noi at­ tempt manfully to defend these defective p a n s, but to cover them with a mysterious veil; they concede, they retract; they say we could do no better:

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and som e o f them , when a little out o f temper, and hard pushed, use argu­ ments that d o more honor to their ingenuity, than to their candor and firmness. Three stales have now adopted the constitution without amendments;50 these, and other circum stances, ought to have their weight in deciding the question, whether we will put the system into operation, adopt it. enumerate and recommend the necessary amendments, which afterwards, by threefourths o f the states, may be ingrafted into the system , or whether w e will make the amendments prior to the adoption— 1 only undertake to shew amendments are essential and necessary— how far it is practicable to ingraft them into the plan, prior to the adoption, the state conventions must de­ termine. O ur situation is critical, and we have but our choice o f evil^— We may hazard much by adopting the constitution in its present form— w e may hazard more b y rejecting it wholly— w e may hazard much by long contend­ ing about amendments prior to the adoption. The greatest political evils that

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Letter* can befal us. are discords and civil wars— ihe greatest blessings w e can wish for. are peace, union, and industry, under a mild, free, and steady govern­ ment. Am endm ents recom m ended w ill tend to guard and d irect the administration— but there will be danger that the people, after the system shall be adopted, will becom e inattentive to amendments— Their attention is now awake— the discussion o f the subject, which has already taken place, has had a happy effect— it has called forth the able advocates o f liberty, and tends to renew, in the minds o f the people, their tnjc republican jealousy and vigilance, the strongest guard against the abuses o f power; but the vigilance o f the people is not sufficiently constant to be depended on— Fortunate it is for the body o f a people, if they can continue attentive to their liberties, long enough to erect for them a tem ple, and constitutional barriers for their permanent security; when they are well fixed between the power* o f the rulers and the rights o f ihe people, they becom e visible boundaries, constantly seen by all. and any transgression o f them is immediately dis­ covered; they serve as centinels for Ihe people at all times, and especially in those unavoidable intervals o f inattention. Some o f the advocates. I believe, will agree to recommend good am end­

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ments: but some o f them will only consent to recommend indefinite, spe­ cious. but unimportant ones; and this only with a view to keep the door open for obtaining, in some favourable moment, their main object, a complete consolidation o f the states, and a government much higher toned, less re­ publican and free than the one proposed. If necessity, therefore, should ev er oblige us to adopt the system , and recommend amendments, the true friends o f a federal republic must see they are well defined, and well calculated, not only to prevent our system o f government moving further from republican principles and equality, but to bring it back nearer to them— they must be constantly on their guard against the address, flattery, and manoeuvres of their adversaries. The gentlemen who oppose the constitution, or contend for amendments in it, are frequently, and with much bitterness, charged with wantonly at­ tacking the men w ho framed it. The unjustness o f this charge leads me to make one observation upon the conduci o f parties. & c .5‘ Som e o f the ad vo­ cates are only pretended federalists: in fact they wish for an abolition o f the state governments Som e o f them 1 believe to be honest federalists, w ho wish to preserve substantially the state governm ents united under an efficient federal head: and many o f them are blind tools without any object. Some o f the oppose rs also are only pretended federalists, w ho want no federal government, or one merely advisory. Som e o f them are the true federalists, their object, perhaps, more clearly seen, is the same with that o f the honest federalists; and som e o f them, probably, have no distinct object. We might as well call the advocates and oppose rs tories and whigs, or any thing else, as federalists and anti-federalists. T o be for or against the con Miration, as it stands, is not much evidence o f a federal disposition: if any

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The Federal Farmer nam es arc applicable to the parties, on account o f their general politics, they are those o f republicans and ami-republicans. The opposers are generally men who support the rights o f the body o f the people, and arc properly

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republicans. T he advocates are generally men not very friendly to those rights, and properly anti republicans. Had the advocates left the constitution, as they ought to have done, to be adopted or rejected on account o f ns own merits or imperfections, I do not believe Ihe gentlemen who framed it would ever have been even alluded to in the contest by the opposers. Instead o f this, the ardent advocates begun by quoting names as incontestibk authorities for the implicit adoption o f the system , without any examination— treated all who opposed it a s friends o f anarchy; and with an indecent virulence addressed M[aso|n GferTjy. L[e|e. and almost ev ery man o f weight they could find in the opposition by name.12 If they had been candid men they would have applauded the moderation o f the opposers for not retaliating in this pointed manner, when so fair an opportunity w as given them; but the opposers generally saw that it was no time to heat the passions: but. at the same time, they saw there was som e­ thing more than mere zeal io many o f their adversaries; they saw them attempting lo mislead the people, and to precipitate their divisions, by the sound o f nam es, and forced lo do it. the opposers. in general terms, al (edged those names were not o f sufficient authority to justify the hasty adoption of the system contended tor. The convention, a s a body, was undoubtedly respectable; it was, generally, com posed o f members o f the then and pre­ ceding Congresses: as a body o f respectable men w e ought to view it. To select individual nam es, is an invitation lo personal attacks, and the ad vo­ cates. for their own sake, ought to have known the abilities, politics, and situation o f some o f their favourite characters better, before they hekl them up to view in the manner they did. a s men entitled to our implicit political belief: they ought lo have known, w hether all the men they so held up to view could, for their past conduct in public offices, be approved or not by the public records, and the honest pan o f the community. T hese ardent advocates seem now to be peevish and angry, because, by their ow n folly, they have led to an investigation o f facts and o f political characters, un­ favourable to them, which they had not the discernment to foresee. They may wen apprehend they have opened a door to some Junius,11 or to some man. after his manner, with his polite addresses to men by nam e, to state senous facts, and unfold the truth: but these advocates may rest assured, that cool men in the opposition, best acquainted with the affairs o f the country, will not. in the critical passage o f a people from one constitution to another, pursue inquiries, which, in other circum stances, will be deserving o f ihe highest praise. T will say nothing further about political characters, but exam ine the constitution; and a s a necessary and previous m easure to a particular examination, I shall state a few general positions and principles, which receive a general assent, and briefly notice the leading features o f the

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Letters confederation, and several slate conventions, to which, through the whole investigation, w e most frequently have recourse, to aid the mmd in its determinations. We can put but little dependance on the partial and vague information transmitted to us respecting antient governm ents: our situation as a people is peculiar: ou r people in genera! have a high sense o f freedom ; they are high

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spirited, though capabie o f deliberate m easures; they are intelligent, dis­ cerning. and well informed; and it is to their condition w e must mould the constitution and laws. We have no royal or noble fam ilies, and all things concur in favour o f a government entirely elective. We have tried our abili­ ties as free men in a most arduous contest, and have succeeded; but we now find the main spring o f our m ovem ents were the love o f liberty, and a temporary ardor, and not any energetic principle in the federal system .54 Our territories are far too extensive for a limited m onarchy, in which the

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representatives must frequently assem ble, and the laws operate mildly and system atically. The most elligible system is a federal republic, that is, a system in which national concerns m ay be transacted in the centre, and local affairs in state or district governmentsThe powers o f the union ought to be extended to com m erce, the coin, and national objects; and a division o f pow ers, and a deposit o f them in different hands, is safest. Good government is generally the result o f experience and gradual im­ provem ents. and a punctual execution o f the laws is essential to the preser­ vation o f life, liberty, and property T axes are alw ays necessary, and the power to raise them can never be safely lodged without checks and limita­

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tion, but in a full and substantial representation o f the body o f the people; the quantity o f pow er delegated ought to be com pensated by the brevity o f the time o f holding it, in order to prevent the possessors increasing it. The supreme power is in the people, and rulers possess only that portion which is expressly given them; yet the w isest people have often declared this is the case on proper occasions, and have carefully formed stipulation to fix the extent, and limit the exercise o f the pow er given. The people by Magna Charts. A c . did not acquire pow ers, or receive privileges from the king, they only ascertained and fixed those they were entitled to as Englishmen; the title used by the king " w e grant.” w as mere form. Representation, and the jury trial, are the best features o f a free government ever as yet discovered, and the only means by which the body o f the people can have their proper influence in the affairs o f government. In a federal system w e must not only balance the parts o f the same governm ent, as that o f the state, or that o f the union; but w e must find a balancing influence between the general and local governments— the latter is what men or writers have but very little or im perfectly considered A free and mild government is that in which no laws can be made without the formal and free consent o f the people, o r o f their constitutional repne-

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The Federal Farmer sentatives; that is. o f a substantial representative branch. Liberty, in its genuine sense, is security to enjoy the effects o f our honest industry and labours, in a free and mild governm ent. and personal security from all illegal restraints. 2.8.80

O f rights, some are natural and unalienable, o f which even the people cannot deprive individuals: Some are constitutional or fundamental: these cannot be altered or abolished b y the ordinary laws; but the people, by express acta, may alter or abolish them— These, such a s the trial by jury Tthe benefits o f the writ o f habeas corpus, & c . individuals claim under the sol­ emn com pacts o f the people, as constitutions, or at least under laws so strengthened by long usuage as not to be repeatable by the ordinary legislature— and some are common or mere legal rights, that is, such as individuals claim under laws which the ordinary legislature may aher or abolish at pleasure.”

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T h e co n fe d era tio n is a leagu e o f frien d sh ip am on g th e sta te s o r sovereignties for the common defence and mutual welfare— Each state ex­ pressly retains its sovereignty, and all pow ers not exp ressly given to congress— A ll federal pow ers are lodged in a congress o f delegates annually elected by the state legislatures, except in Connecticut and Rhode-Island, where they axe chosen by the people— Each state has a vote in congress, pays its delegates, and m ay instruct or recall them: no delegate can hold any office o f profit, o r serve more than three years in any six years— E ach state may be represented by not less than tw o, or more than seven delegates.

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Congress (nine states agreeing) m ay make peace and w ar. trcBlies and alliances, grant letters o f marque and reprisal, coin m oney, regulate the alloy and value o f the coin, require men and monies o f the states by fixed

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proportions, and appropriate monies, form armies and navies, emit bills o f credit, and borrow monies. Congress (seven states agreeing) may send and receive ambassadors, regulate captures, make rules for governing the army and navy, institute courts for the trial o f piracies and felonies committed on the high seas, and for settling territorial disputes between the individual states, regulate weight and measures, post-offices, and Indian affairs.

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N o state, without the consent o f congress, can send or receive em bassies, make any agreement with any other state, or a foreign state, keep up any vessels o f w ar or bodies o f forces in time o f peace, or engage in war, or lay any duties which may interfere with the treaties o f congress— Each stale must appoint regimental officers, and keep up a well regulated militia— Each state may prohibit the importation o r exportation o f any species o f goods.

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The free inhabitants o f on e stale are infilled to the privileges and im­ munities o f the free citizens o f the other states— Credit in each state shah be given to the records and judicial proceedings in the othersC anada, acceding, may be admitted, and any other colony may be admit­ ted b y the consent o f nine states.

7°

Letters Alterations may be made by the agreement o f congress, and confirmation o f all the state legislatures. The following. I think, will be allowed to be unalienable or fundamental

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rights in the United States:— No man. demeaning him self peaceably, shall be m olested on account o f his religion o r mode o f worship— The people have a right to hold and enjoy their property according to known standing law s, and which cannot be taken from them without their consent, or the consent o f their representatives; and whenever taken in the pressing urgencies o f governm ent, they are to receive a reasonable compensation for it— Individual security consists in having free recourse to the laws— The people are subject to no laws o r taxes not assented to by their representatives constitutionally assembled— They are at all times intilled to the benefits o f the writ o f habeas corpus, the trial by jury in criminal and civil causes— They have a right, when charged, to a speedy trial in the vicinage: to be heard by them selves o r counsel, not to be compelled to furnish evidence against them selves, to have witnesses face to face, and to confront their adversaries before the judge— N o man is held to answer a crime charged upon him till It be substantially described to him; and he is subject to no unreasonable searches or seizures o f his person, papers or effects— The people have a right to assemble in an orderly man­ ner. and petition the government fo r a redress o f wrongs— The freedom o f the press ought not to be restrained— N o emoluments, except for actual s e r v ic e — N o h ered itary h on ors, or ord ers o f n o b ility , ought to be allowed— The military ought to be subordinate to the civil authority, and no soldier be quartered on the citizens without their consent— The militia ought alw ays to be armed and disciplined, and the usual defence o f the country— The supreme power is in the people, and pow er delegated ought to return to them at stated periods, and frequently— The legislative, execu tive, and judi­ cial powers, ought alw ays to be kept distinct— others perhaps might be added The organization o f the state governments— Each stale has a legislature, an executive, and a judicial branch— In general legislators are excluded from the important executive and judicial offices— Except in the Carolinas there is no constitutional distinction am ong Christian sects— The con­ stitutions o f New' Y ork. Delaware, and Virginia, exclude the clergy from offices civil and military— the other states do nearly the same tn practice. Each state has a dem ocratic branch elected tw ice a-year in Rhode-lsland and Connecticut, biennially in South Carolina, and annually in the other

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states— There are about 1500 representatives in all the states, or one to each 1700 inhabitants, reckoning five blacks for three whiles— The states do not differ as to the age or moral characters o f the electors or elected, nor materially as to their property. Pennsylvania has lodged all her legislative powers in a single branch, and Georgia has done the same; the other eleven states have each in their legis-

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The Federal Farmer laturts a second or senatorial branch. In forming this they have combined various principles, and aimed at several checks and balances. It is amazing to see how ingenuity has worked in the several states to fix a barrier against popular instability In M assachusetts the senators are apportioned on districts according to the taxes they pay. nearly according to property. In Connecticut the freem en, in Septem ber, vote for twenty counsellers, and return the names o f those voted for in the several towns: the legislature takes the tw enty who have the most votes, and give them to the people, w ho. in April, chuse tw elve o f them. who. with the governor and deputy governor, fonn the senatorial branch. In Maryland the senators are chosen by two electors from each county: these electors are chosen by the freemen, and qualified as the members in the democratic branch are: In these two cases checks are aimed at in the mode o f election. Several states have taken into view the periods o f service, age. property. A c . In South-Carolina a senator is elected for two years, in Delaware three, and in N ew -Y ork and Virginia four, in Maryland five, and in the other states for one. In N ew -York and Virginia one-fourth part go out yearly. In Virginia a senator must be twenty-five years old. in South Carolina thirty. In N ew -York the electors must each have a freehold worth 250 dollars, in North-Carolina a freehold of fifty acres o f land: in the other states the electors o f senators are qualified as electors o f representatives are. In M assachusetts a senator must have a freehold in his own right worth 1000 dollars, or any estate worth 2000. in New-Jersey any estate worth 2666. in South Carolina worlh 1300 dollars, in North-Caroltna 300 acres o f land in fee. & c. The numbers o f senators in each slate are from ten to thirty-one. about 160 in the eleven states, about one o f 14000 inhabitants. 2.8.90

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T w o stales. M assachusetts and N ew -Y o rk. have each introduced tmo their legislatures a third but incom plete branch. In the former, the governor may negative any law not supported by iwo-thirds o f the senators, and two-thirds o f the representatives: in the latter, the governor, chancellor, and judges o f the supreme court may do the same. Each state has a single executive branch. In the five eastern states the people at large elect their governors; in the other slates the legislatures elect them In South Carolina the governor is elected once in tw o years: in N ew -York and Delaware once in three, and Jn the other slates annually. The governor o f N ew -Y o rk has no executive council, the other governors have. In several states the governor has a vo le in the senatorial branch— the governors have similar pow ers in some instances, and quite dissimilar ones in olhers The number o f execu tive cou n selled in the states are from five to tw elve. In the four eastern states. N ew -Iersey. Pennsylvania, and Georgia, they are o f the men returned legislators by the people. In Pennsylvania the coun selled are chosen triennially. in Delaware ev ery fourth year, in Vir­ ginia every three years, in South-Carolina biennially, and in the other states yearly.

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Letters Each state has a judicial branch; each common law courts, superior and inferior: some chancery and admiralty courts: T h e courts in general sit in

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different places, in order to accommodate the citizens. T h e trial by ju ry is had in all the common Jaw courts, and in som e o f the admiralty courts. The democratic freemen principally form the juries; men destitute o f property, o f character, or un derage, are excluded as in elections. Som e o f the judges are during good behaviour, and som e appointed for a y ear, and some for yea rs: and all are dependant on the legislatu res for their salaries— Particulars respecting this department are too many to be noticed here. The Federal Farmer.

VII Decem ber 31. 1787. Dear Sir. 1n viewing the various governments instituted by mankind, w e see their whole force reducible to tw o principles— the important springs which alone move the machines, and give them their intended influence and controul. are force and persuasion: by the form er men are com pelled, b y the latter they are drawn. We denominate a government despotic or free, as the one or other principle prevails in it. Perhaps it is not possible for a governm ent to be so despotic, as not to operate persuasively on some o f its subjects; nor is it. in the nature o f things. I conceive, for a governm ent to be so free, or so supported by voluntary consent, as never to want force to compel obediencc to the laws. In despotic governm ents one man. or a few m en. in­ dependant o f the people, generally make the law s, command obedience, and inforce it by the sword: one-fourth part o f the people are armed, and obliged to endure the fatigues o f soldiers, to oppress the others and keep them subject to the laws. In free governm ents the people, or their representatives, make (he laws: their execution is principally the effect o f voluntary consent and aid: (he people respect (he magistrate. follow their private pursuits, and enjoy the fruits o f their labour with very small deductions for the public use.14 The body o f the people must evidently prefer the latter species o f government: and it can be only (hose few w ho may be well paid for the part they take in enforcing despotism , (hat can. for a moment, prefer the former Our (rue object is to give full efficacy to one principle, to arm persuasion on every side, and to render force as little necessary a s possible. Persuasion is never dangerous not even in despotic governm ents; but military force, if often applied internally, can never fail to destroy the love and confidence, and break the spirits, o f the people: and to render it totally impracticable

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The Federal Farmer and unnatural for him or them who govern, and yield to this force against the people, to hold their places b y the peoples' elections. [ repeat m y observation, that the plan proposed will have a doubtful operation between the tw o principles; and whether it wjll preponderate towards persuasion or force is uncertain. 2.8.94

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Governm ent must exist— I f the persuasive principle be feeble, force is infallibly the next resort. The moment Ihe laws o f congress shall be dis­ regarded they must languish, and the w hole system be convulsed— that moment w e must have recourse to this next resort, and ail freedom vanish. It being impracticable for the people to assemble to make laws, they must elect legislators, and assign men to the different departments o f the govern­ m ent.57 In the representative branch w e must expect chiefly to collect (he confidence o f the people, and in it to find almost entirely the force o f persua­ sion. Tn forming this branch, therefore, several important considerations must be attended to. It must possess abilities to discern the situation o f the people and o f public affairs, a disposition to sym pathize with the people,

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and a capacity and inclination to make law s congenial to their circum stances and condition: it must afford security against interested com binations, cor­ ruption and influence; it must possess the confidence, and have the volun­ tary support o f the people. 1 think these positions will not be controverted, nor the one 1 formerly advanced, that a fair and equal representation is that in which the interests, feelings, opinions and view s o f the people are collected, in such manner as they would be were the people all assembled. Having made these general observations. I shall proceed to consider further my principal position, viz. that there is no substantial representation o f the people provided for in a

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governm ent, in which the most essential pow ers, even ns to the internal police o f the country, are proposed to be lodged: and to propose certain amendments as to the representative branch: 1st. That there ought to be an increase o f the numbers o f representatives: A n d , zdly, T h at the elections o f them ought to be better secured. I .J1 The representation is unsubstantial and ought to be increased. In matters where there is much room for opinion, you will not exp ect me to establish my positions with mathematical certainty; you must only expect my observations to be candid, and such a s are well founded in the mind o f (he writer. ! am in a held where doctors disagree: and as to genuine repre­ sentation. though no feature in government can be more important, perhaps, no on e has been less understood, and no one that has received so imperfect a consideration by political writers. The ephori in Sparta, and the tribunes in Rome, were but the shadow; the representation in Gneat-Britain is unequal and insecure. In Am erica w c have done more in establishing this important branch on its true principles, than, perhaps, all the world besides: yet even here. I conceive, that very great improvements in representation may be made. In fixing this branch, the situation o f the people must be surveyed.

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Letters and the number o f representatives and forms o f election apportioned to that situation. When w e find a numerous people settled in a fertile and extensive country, possesstngequality, and few or none o f them oppressed with riches or wants, it ought to be the anxious care o f the constitution and law s, to arrest them from national depravity, and to preserve them in their happy condition.*9 A virtuous people make ju st law s, and good laws tend to pre­ serve unchanged a virtuous people. A virtuous and happy people by laws uncongenial to their characters, may easily be gradually changed into servile and depraved creatures. Where the people, or their representatives, make the law s, it is probable they will generally be fitted to the national character and circumstances, unless the representation be partial, and the imperfect substitute o f the people. H ow ever, the people may be electors, if the repre­ sentation be so formed as to give one or more o f the natural classes o f men in the society an undue ascendency over the others, it is im perfect: the former will gradually becom e m asters, and the latter slaves. It is the first o f all among the political balances, to preserve in its proper station each of these classes. We talk o f balances in the legislature, and among the de­ partments o f governm ent; we ought to carry them to the body o f the people. Since I advanced the idea o f balancing the several orders o f men in a com ­ munity, in forming a genuine representation, and seen that idea considered aschem erica!,(,t> l have been sensibly struck with a sentence in the marquis B eccaria's treatise: this sentence was quoled by congress in 1774. and is as follows:— "In every society there is an effort continually tending to confer on one part the height or pow er and happiness, and to reduce the others to the extreme o f weakness and misery: the intent o f good laws is to oppose this effort, and to diffuse their influence universally and e q u a lly .''M Add to this Montesquieu s opinion, chat "in a free state every man. who is sup­ posed to be a free agent, ought to be concerned in his ow n government: therefore, the legislative should reside in the whole body o f the people, or their representatives." * 1 It is extrem ely clear that these writers had in view the several orders o f men in society, which w e call aristocratical, democratical. merchaniile, m echanic. & c . and perceived the efforts they are con stan tly, from interested and am bitiou s vie w s, d isposed to make f efforts9] to elevate them selves and oppress others. Each order must have a share in the business o f legislation actually and efficiently. It is deceiving a people to tell them they are electors, and can chuse their legislators. If they cannot, in the nature o f things, chuse men from among them selves, and genuinely like them selves. 1 wish you to take another idea along with you; w e are not only to balance these natural efforts, but we are also to guard against accidental combinations: com binations founded in ihe connections o f offices and private interests, both evils which are increased in proportion as the number o f men. among which the elected must be. are decreased. T o set this matter in a proper point o f view , w e must form some general ideas and descriptions o f the different classes o f men. as they may be divided by

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The Federal Fanner occupations and politically: the first class is the aristocratical. There are three kinds o f aristocracy spoken o f in this country— the first is a con­ stitutional one. which d oes not exist in the United Slates in our common acceptation o f the w ord. Montesquieu, it is true, observes, that where a pan o f the persons in a society, for want o f property, age, or moral character, are excluded any share in the governm ent, the others, who alone are the con­ stitutional electors and elected, form (his aristocracy;*5 this, according to him, exists in each o f the United States, where a considerable number o f persons, as all convicted o f crim es, under age. or not possessed o f certain property, are excluded any share in the government;— the second is an aristocratic faction; a ju nto o f unprincipled men. often distinguished for their wealth or abilities, w ho com bine together and make Iheir object their private interests and aggrandizement; the existence o f this description is merely accidental, but particularly to be guarded against. The third is the natural aristocracy, this term we use to designate a respectable order o f men, the line between whom and the natural dem ocracy is in some degree arbitrary; we may place men on one side o f this line, which others may place on the other, and in all disputes between the few and the many, a consider­ able number are w avering and uncertain them selves on which side they arc. or ought to be. In my idea o f our natural aristocracy in the United States. I include about four or five thousand men; and among these I reckon those who have been placed in the offices o f governors, o f members o f Congress, and stale senators generally, in the principal officers o f Congress, o f the army and militia, the superior judges, the most eminent professional men. A c . and men o f large property*4— the other persons and orders in the com ­ munity form the natural dem ocracy; this includes in general the yeom anry, the subordinate officers, civil and military, the fishermen, mechanics and traders, many o f the m erchants and professional men. U is ea sy to perceive that men o f these tw o classes, the aristocrat teal, and dem ocratical. with view s equally honest, have sentiments w idely different, especially respect­ ing public and private expences. salaries, lax es. & c . Men o f the first class associate more exlen sively. have a high sense o f honor, possess abilities, ambition, and general knowledge: men o f the second class are not so much used to combining great objects: they possess less ambition, and a larger share o f honesty: their dependence is principally on middling and small estates, industrious pursuits, and hard labour, while that o f the former is principally on the emoluments o f large estates, and o f the ch ief offices o f government Not only the efforts o f these tw o great parties are to be bal­ anced. but other interests and parries also, which do not alw ays oppress each other merely for want o f pow er, and for fear o f the consequences; though they, in fact, mutually depend on each other; yet such are their general view s, that the merchants alone would never fail to make laws favourable to them selves and oppressive to the fanners. & c . the farmers alone would act on like principles: the former would tax the land, the latter

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Letters the trade. T h e manufacturers are often disposed to contend for monopolies, buyers make ev ery exertion to lower prices, and sellers to raise them; men who live b y fees and salaries endeavour to raise them, and the part o f the people w ho pay them , endeavour to lower them; the public creditors to augment the taxes, and the people a t large to lessen them. Thus, in every period o f society, and in all the transactions o f m en. we see parties verifying the observation made by the Marquis; and those classes which have not their centinels in the governm ent, in proportion to what they have to gain or lose, most infallibly be ruined. Efforts am ong parties are not m erely confined to property; they contend

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for ran i and distinctions; all their passions in m m are enlisted in political controversies— Men. elevated in society, are often disgusted with the changeableness o f the dem ocracy, and the latter are often agitated with the passions o f jealo u sy and envy; the yeom anry possess a large share o f prop­ erty and strength, are nervous and firm in (heir opinions and habits— the m echanics o f towns are ardent and changeable, honest and credulous, they are inconsiderable for numbers, weight and strength, not alw ays sufficiently stable for the supporting free governm ents; the fishing interest partakes partly o f the strength and stability o f the landed, and partly o f the change­ ableness o f the mechanic interest. A s to m erchants and traders, they are our agents in almost all money transactions; give activity to governm ent, and possess a considerable share o f influence in it. It has been observed by an able writer, that frugal industrious merchants are generally advocates for liberty. Jt is an observation. I believe, well founded, that the schools pro­ duce but few advocates for republican forms o f government; ** gentlemen o f the law, divinity, physic, & c. probably form about a fourth part o f the people; yet their political influence, perhaps, is equal to that o f all the other descriptions o f men; if w e may judge from the appointments to Congress, the legal characters will often, in a small representation, be the m ajority; but the more the representatives arc encreased, the more o f the farm ers, m er­ chants. & c. will be found to be brought mto the government. These general observations will enable you to discern what 1 intend by different classes, and the general scope o f my ideas, when I contend for uniting and balancing their interests, feelings, opinions, and view s in the legislature; w e may not only so unite and balance these as to prevent a change in the government by the gradual exaltation o f one part to the de­ pression o f others, but we may derive many other advantages from the combination and full representation; a small representation can never be w ell informed as to the circum stances o f the people, the members o f it must be too far removed from the people, in general, to sym pathize with them, and too few to communicate with them: a representation must be extrem ely imperfect where the representatives are not circum stanced to make the proper communications to their constituents, and where the constituents in turn cannot, with tolerable convenience, make known their w ants, circum -

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The Federal Fanner stances, and opinions, to their representatives; where there is but one repre* sentative to 30.000 or 40.000 inhabitants, it appears (0 me. he can only mix. and be acquainted with a few respectable characters among his constituents, even double the federal representation, and then there must be a very great distance betw een the representatives and the people in general represented. On the proposed plan, the state o f Delaware, the city o f Philadelphia, the stale o f Rhode Island, the province o f Main, the county o f Suffolk in Mas­ sachusetts will have one representative each; there can be but little personal know ledge, or but few com m unications, betw een him and the people at targe o f cither o f (hose districts. It has been observed, that mixing only with the respectable men, he will get the best information and ideas from them:

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he will also receive im pressions favourable to their purposes particularly. M any plausible shifts have been made to divert the mind from dwelling on this defective representation, these 1 shall consider in another place** Could we get o v e r all our difficulties respecting a balance o f interests and party efforts, to raise som e and oppress others, the want o f sym pathy, information and intercourse between ihe representatives and the people, an insuperable difficulty will still remain. I mean ihe constant liability o f a small number o f representatives to private combinations; the tyranny o f the one. or the licentiousness o f the multitude, are. in my mind, but small evils, compared with the factions o f the fe w . It is a consideration well worth pursuing, how far (his house o f representatives will be liable to be formed into private juntos, how fa r influenced by expectations o f appointments and offices, how far liable to be managed by the president and senate, arid how far the people will have confidence in them. T o obviate difficulties on this head, as well a s objections to the representative branch, generally, several observations have been made— these 1 will now exam ine, and if they shall appear to be unfounded, the objections must stand unanswered.

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That the people are the electors, must elect good men. and attend to the administration. It is said that the members o f C ongress, at stated periods, must return hom e, and that they must be subject to the laws they may make, and to a share o f the burdens (hey may impose That the people possess the strong arm to overaw e their rulers, and the best checks in their national character against the abuses o f power, that the supreme pow er will remain in them. T hat the state governm ents will form a part of. and a balance in the system . That C ongress will have only a few national objects to attend to. and the state governm ents many and local ones. T hat the new C ongress w ill be more numerous than the present, and that jty numerous body is unwieldy and mobbish. That the states only are represented in the present C ongress, and (hat the

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Letters people will require a representation in the new one that in fifty or an hundred years the representation will be numerous. Thai congress will have no temptation to do wrong: and that no system to enslave the people is practicable That as long as the people are free they will preserve free governments; and that when they shall become tired o f freedom , arbitrary government must take place. These observations I shall examine in the course o f my letters; and, I think, not only shew that they are not well founded, but point out the fallacy o f some o f them: and shew that others do not very well com port with the dignified and manly sentiments of a free and enlightened people. The Federal Farmer.

XVI January 20. 178R. Dear Sir. Having gone through with the organization o f the governm ent. F shall now proceed to examine more particularly those clauses which respect its pow­ ers. I shall begin with those articles and stipulations which arc necessary for accurately ascertaining the extent o f pow ers, and what is given, and for guarding, limiting, and restraining them in their ex ercise.11' We often find, these articles and stipulations placed in bills o f rights: but they may as well be incorporated in the body o f the constitution as selected and placed by themselves The constitution, or whole social com pact, is but one instru­ ment. no more or less, than a certain number o f articles or stipulations agreed to b y the people, whether it consists o f articles, sections, chapters, bills o f rights, or parts o f any other denomination, cannot be material. Many needless observations, and idle distinctions, in my opinion, have been made respecting a bill o f rights. On the one hand, it seem s to be considered as a necessary distinct limb o f the constitution, and as containing a certain number o f very valuable articles, which are applicable to aJI societies: and, on the other, as useless, especially in a federal governm ent, possessing only enumerated power— nay. dangerous, as individual rights are numerous, and not easy to be enumerated in a bill o f rights, and from articles, or stip u le tions. securing some o f them, it may be inferred, that others not mentioned are surrendered.11* There appears to me to be general indefinite proposi­ tions without much meaning— and the man who first advanced those o f the

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The Federal Fanner latter description, in the present case, signed the federal constitution, which directly contradicts h im ." 1 T h e supreme pow er is undoubtedly in the people, and it is a principle well established in my mind, that they reserve oil pow ers not expressly delegated by them to those w ho govern; this is as true in forming a state as in forming a federal government. There is no possible distinction but this founded m erely in the different m odes o f proceeding which take place in som e cases. In forming a slate constitution, under which to manage not only the great but the little concerns o f 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 pow ers, indeed all pow ers, to the governm ent, in some general words, and then, by a particular enum eration, take back, or rather say they how ever reserve cer­ tain 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 rx w fermine, Supposes stale governments existing, and which is only to manage a few great national concerns, we often find it easier to enum erate particularly Ihe 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 enum erate 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 ihe par­ ticular enumeration o f the powers given adequately draws the line between them and the rights reserved, particularly to enumerate ihe form er and not the latter. I think most advisable: how ever, as men appear generally to have their doubts about these silent reservations, w e might advantageously enumerate the powers given, and then in general w ords, according to the mode adopted in the i d art. o f the confederation, declare all pow ers, rights and privileges, are reserved, which are not explicitly and expressly given up People, and very w isely too. like to be express and explicit about their essential rights, and no! to be forced to claim them on the precarious and unascertained tenure o f 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 gen­ eral principle, that all rights are reserved o f course, which are not expressly surrendered, the people could with sufficient certainty assert their rights on all occasions, and establish them with ea se, still there are infinite advantages in particularly enumerating many o f the most essential rights reserved in all cases; and as to the less important ones, wc may declare in general terms, that all not expressly surrendered are reserved. We do not by declarations change the nature o f things, or create new truths, but we give existence, or at least establish in the minds o f the people truths and principles which they might never otherwise have thought of. or soon forgot. I f a nation means its system s, religious or political, shall have duration, it ought to recognize the leading principles o f them in the from page o f every family book What is the

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Letters usefulness o f a truth in theory, unless it ex ists constantly in the minds o f the people, and has their assent:— we discern certain rights, as the freedom o f the press, and the trial by ju ry . Slc . which the people o f England and of Am erica o f course believe to be sacred, and essential to their political hap­ piness. and this belief in them is the result o f ideas at first suggested to them by a few able men. and o f subsequent experience; while the people o f some other countries hear these rights mentioned with the utmost indifference; they think the privilege o f existing at the will o f a despot much preferable to them. W hy this difference amongst beings ev ery w ay formed alike. The reason o f the difference is obvious— it is the effect o f education, a series o f notions impressed upon the minds o f the people by exam ples, precepts and declarations. When the people o f England gol 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, (bey. 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 w as not sufficient; and therefore, that the people might not forget these rights, and gradually becom e prepared for arbitrary governm ent, (heir discerning and honest leaders caused this instrument to be confirmed near forty tim es, 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 o f it in the minds o f the people, as they successively com e 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 negotiations and declarations, all parties are brought to realize them, and o f course to believe them to be sacred. Were it necessary. I might shew the wisdom o f our past conduct, as a people in not merely com forting ourselves that we were entitled to freedom, blit in constantly keeping in view , in addresses, bills o f rights, in news-papers. & c . the particular principles on which our freedom must alw ays depend.11* It is not merely in this point o f vie w , that I urge the engrafting in the constitution additional declaratory articles. The distinction, in itself just, that all pow ers 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 o f which, the rights in question may be effected. Gentlemen who oppose a federal bill o f 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 o f the rights reserved, but principally to explain the general pow ers delegated in certain material points, and to restrain those w ho exercise them by fixed known boundaries. Many explanations and restrictions necessary and u$e~ 81

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The Federal Fanner ful. would be much less s o . w ere the people at large all well and fully acquainted with the principles and affairs o f governm ent. There appears to be in the constitution, a studied brevity, and it may also be probable, that several explanatory articles were om itted from a circum stance very com ­ mon. What we have long and early understood ourselves in the common concerns o f Ihe com m unity, w e are apt to suppose is understood by others, and need not be expressed; and it is not unnatural or uncommon fo r the ablest men m ost frequently to make this mistake. To make declaratory articles unnecessary in an instrument o f governm ent, two circum stances must exist; the rights reserved must be indisputably so. and in their nature defined’, the pow ers delegated to the governm ent, must be precisely defined b y the words that con vey them, and clearly be o f such extent and nature as

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thal. by no reasonable construction, they can be made to Invade the righis and prerogatives intended to be left in the people. The first point urged, is. that all pow er is reserved not expressly given, that particular enumerated powers only are given , thal all others are not given, but reserved, and thal it is needless to attempt to restrian congress in the exercise o f pow ers they possess not. T his reasoning is logical, but o f very little importance in the common affairs o f men; but the constitution does not appear to respect it even in any view . T o prove this, I might cite several clauses in it. 1 shall only remark on tw o or three. By article 1. section 9 . " N o litle o f nobility shall be granted by congress” W as this clause omitted, what pow er would congress have to make titles o f nobility? in what part o f the constitution would (hey find it? The answ er muse be. thal con­ gress would have no such power— that the people, by adopting the constitu­ tion. will not part with it. W hy 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 im ply, that were it omitted, congress would have the power in question, either upon the principle that some general w ords in the con ­ stitution may be so construed a s to give it. or on the principle that congress possess the pow ers not expressly reserved. But this clause w as in the con­ federation. and is said to be introduced into the constitution from very great caution. Even a cautionary provision implies a doubt, at least, (hat it iB necessary; and if so in this case, clearly it is also alike necessary in all similar ones. T he fact appears to be, that the people in forming the con­ federation. and the convention, in this instance, acted, naturally, they did not leave the point to be settled by genera) principles and logical inferences: but they settle the point in a few w ords, and all w ho read them at once understand them.

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The trial by ju ry in criminal as well as in civil cau ses, has tong been considered a s one o f our fundamental rights, and has been repeatedly rec­ ognized and confirmed by most o f the state conven tion s.' 19 But (he con­ stitution expressly establishes (his trial m criminal, and w holly om its it in civil causes. T h e ju ry trial in crimma) causes, and the benefit o f the writ o f

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Letters habeas corpus, are already as effectually established as a n y o f the funda­ mental or essential rights o f the people in the United States. This being the case, why in adopting a federal constitution d o w e now establish these, and omit all others, or all others, at least with a few exceptions, such a s again agreeing there shall be no ex post facto laws, no titles o f nobility, A c . We must consider this constitution, when adopted, as the supreme act o f the people, and in construing it hereafter, w e and our posterity must strictly adhere to the letter and spirit o f it. and m no instance depart from them: m construing the federal constitution, it will be not only impracticable, but improper to refer to the state constitutions. T hey are entirely distinct in­ struments and inferior acts: besides, by the people's now establishing cer­ tain fundamental rights, it is strongly implied, that they are o f opinion, that they would not otherwise be secured as a pan o f 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 establishm ents, and extinguished or pul afloat by the new arrangement o f the social system , unless re-established.— Further, the people, thus establishing som e few rights, and remaining totally silent about others similarly circum stanced, the implication indubitably is. that they mean to relinquish the latter, or at least feel indifferent about them. Rights, therefore, inferred from general principles o f reason, being precarious and hardly ascertainable in the common affairs o f society, and the people, in forming a federal constitution, explicitly shewing they conceive these rights to be thus circum stanced, and accordingly proceed to enum erate and establish some o f 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 o f individuals, which can by any possibility come in question in making and executing federal laws. I have already observed upon the excellency and importance o f the ju ry trial in civil as well as in criminal causes, instead o f establishing it in crim inal causes on ly; w e ought to establish it generally;— instead o f the clause o f forty or fifty words rela­ tive to this subject, why not use the language that has alw ays been used in this country, and say, ’ ‘ the people o f the United States shall alw ays be entitled to the trial by ju r y ." This would shew the people still hold the right sacred, and enjoin it upon congress substantially to preserve the ju ry trial rn all cases, according to the usage and custom o f the country. 1 have observed before, that il is /Ae jury trial w e 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 w e would save, not the little articles o f form. Security against expost facto law s, the trial b y ju ry , and the benefits o f the writ o f habeas corpus, are but a part o f those inestimable rights the people o f

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Tbe Federal Farmer the United Stales are entitled to. even in judicial proceedings, by the course o f the common law. T hese may be secured in general w ords, as in NewY o rk , the W estern Territory. A c . by declaring the people o f the United States shall alw ays be entitled to judicial proceedings according to the course o f the com m on law, a s 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 m any o f 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 governm ent or the army and n avy, no person shall be tried for any offence, whereby he may incur loss o f life, or an infamous punishment, until he be first indicted by a grand ju ry: that every person shall have a right to produce all proofs that m ay be favourable to him. and to meet the w itnesses against him face to face: that every person shall be entitled to obtain right and ju stice freely and without delay: that all persons shall have a right to be secure from all unreasonable searches and seizures o f their persons, houses, papers, or possessions; and that all warrants shall be deem ed contrary to this right, if the foundation o f them be not previously supported by oath, and there be not in them a special designation o f persons or ob jects o f search, arrest, o r seizure: and that no person shall be exiled or molested in his person or effects, otherwise than by the judgment o f his peers, or according to the law o f the land. A celebrated writer observes upon this last article, that in itself it m ay be said to comprehend the whole end o f political so ciety .110 T h ese rights are not necessarily reserved, they are established, or enjoyed but in few countries: they are stipulated rights, almost peculiar to British and Am erican law s. In the execution o f those law s, individuals, by long custom , by magna charta. bills o f rights A c . have becom e entitled to them. A man. at first, by act o f parliament, became entitled to the benefits o f the writ o f habeas corpus— men are entitled to these rights and benefits in the judicial proceedings o f 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 nght to assert them , unless secured and established by the constitution or federal law s. W e certainly, in federal processes, might a s well claim the benefits o f the writ o f 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. A c . w as the con­ stitution silent a s to the w hole o f them:— but the establishm ent o f the former, will evince that w e could not claim them without it: and (he omis­ sion o f the latter, implies they are relinquished, or deem ed o f no im­ portance. T hese are rights and benefits individuals acquire by com pact: they must claim them under com pacts, or immemorial usage— it is doubtful, at least, whether they can be claimed under immemorial usage in this country; and it is, therefore, w e generally claim them under com pacts, as charters and constitutions.

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Letters The people by adopting the federal constitution, give congress general powers to institute a disiincl and new judiciary, new courts, and to regulaie

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all proceedings m them, under the eight limitations mentioned in a former letter: and the further one. that the benefits o f the habeas corpus act shall be enjoyed by individuals. Thus general powers being given to institute courts, and regulate iheir 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 w ise to secure them and rem ove all doubts, since all agree the people ought to enjoy these valuable rights, a very few men excepted, who seem to be rather o f opinion that there is little or nothing in them? Were it necessary 1 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

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necessary to the end. In the exercise o f these pow ers, is there any provision in the constitution to prevent the quartering o f soldiers on the inhabitants? you will answ er, there is not. This may sometimes be deemed a necessary measure in the support o f armies: on what principle can the people claim the right to be exempt from ihis burden? they will urge, perhaps, the practice o f the country, and the provisions made in som e o f the state constitutions— they will be answered, that their claim thus to be exem pt is not founded in nature, but only in custom and opinion, o r a l best, in stipulations in some of the state constitutions, which are local, and inferior in their operation. and can have no con irou lovcr 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 presum ed, 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 perma­ nency and duration o f free government An excellent writer observes, that the English, alw ays in possession o f their freedom , are frequently unmindful o f the value o f it:1,1 w e. at this period, do not seem to be so well off. having, in some instances abused ours: many o f us arc quite disposed to barter it away for what w e call energy, coercion, and some other term s w e use as vaguely as that o f 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 o f the press is a fundamen­ tal right, and ought not to be restrained by any taxes, duties, or in any manner whatever. W hy should not the people, in adopting a federal con­ stitution. declare this, even if there are only doubts about it. B ut. say the advocates, all pow ers not given are reserved:— true: but the great question is. are not powers given, in the excercise o f which this right may be de-

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The Federal Farmer stroyed? H ie people's or the printers claim to a free press, is founded on the fundamental law s, that is, com pacts, 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 b y giving general pow ers, as well as by using particular words. No right claim ed under a stale constitu­ tion, will avail against a law o f the union, made in pursuance o f the federal constitution: therefore the question is. what laws will congress have a right to make by the constitution o f the union, and particularly touching the press? B y art. i. sect. 8. congress will have pow er to lay and collect taxes, duties, imposts and excise. B y this congress will clearly have pow er to lay and collect all kind o f taxes w hatever— taxes on houses, lands, polls, in­ dustry, m erchandize. & c .— taxes on deeds, bonds, and all written in­ struments—on writs, picas, and all judicial proceedings, on licences, naval officers papers, & c. on newspapers, advertisem ents. A c . and to require bonds o f the naval officers, clerks, printers, A c . to account for the taxes that may becom e due on papers that go through their hands Printing, like ail other business, must cease when taxed beyond its profits: and it appears to me. ihat a pow er to tax the press at discretion, is a pow er to destroy or restrain the freedom o f it. There may be other pow ers given, in the exercise o f which this freedom may be effected; and certainly it is o f too much importance to be left thus liable to be taxed, and constantly to constructions and inferences. A free press is the channel o f communication as to mercan­ tile and public affairs: by means o f it the people in large countries ascertain each others sentiments, are enabled to unite, and become formidable to those rulers w ho adopt improper m easures. N ew spapers may som etim es be the vehicles o f abuse, and o f many things not true; but these are but small inconveniencies. in my mind, among many advantages. A celebrated writer. 1 have several lim es quoted, speaking in high terms o f the English liberties, sa y s, “ lastly the key stone w as put to the arch, by the final establishment o f the freedom o f the p r e s s ." 1141 shall not dwell longer upon the fundamental rights, to some o f which I have alteitded in this letter, for the same reasons that these 1 have mentioned, ought to be expressly secured, lest in the exercise o f general pow ers given they may be invaded: it is pretty clear, that som e other o f less im portance, 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 o f the governm ent, and especially the m ode o f laying and collecting internal taxes. The Federal Farmer.

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XVII January 23. 1788. Dear Sir. I believe the people o f the United Slates are full in the opinion, that a free

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and mild government can be preserved in their extensive territories, only under the substantial forms o f a federal republic. A s several o f the ablest advocates for the system proposed, have acknow ledged this (and 1 hope the confessions they have published will be preserved and remembcredl 1 shall not take up time to establish this point.121 A question then arises, how far thBt system partakes o f a federal rep u b lic— I observed in a former letter, that it appears to be the first important step to a consolidation o f the states: that its strong tendency is to that point 124 But what do we mean by a federal republic? and what b y a consolidated government? T o erect a federal republic, w e must first make a number o f states on republican principles; each state with a government organized for the internal management o f its affairs: The stales, as such, must unite under a federal head, and delegate to it pow ers to make and execute law s 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 o f a legislature, with one or more branches; o f an executive, and o f a judiciary. T o form a consolidated, or one entire governm ent, there must be no state, o r local governm ents, but all things, persons and property, must be subject to the laws o f one legislature alone: to one execu tive, and one judiciary. Each state governm ent, a s the government o f N ew Jersey. & c . is a consolidated, or one entire governm ent, as it respects the counties, towns, citizens and property within Ihe limits o f the state.— The state governm ents 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 itse lf supposes state or local governm ents 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 governm ent, and always in its councils, each state must be known as a sovereign body: but in erect­ ing this govern m ent 1 conceive, the legislature o f the state, by the e x ­ pressed or implied assent o f the people, or the people o f the state, under the direction o f Ihe government o f it. may acced e to Ihe federal compact: N or do I conceive it to be necessarily a part o f a confederacy o f states, that each have an equal voice in the general councils. A confederated republic being organized, each stale must retain powers for managing its internal police, and all delegate to the union pow er to manage general concerns: The quan­ tity o f power the union must possess is one thing, the mode o f exercising the powers given, is quite a different consideration; and it is the mode o f exer­ cising them, that m akes one o f the essential distinctions between one entire or consolidated governm ent, and a federal republic; that is. how ever the government may be organized, if the laws o f the union, in m ost important 87

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The Federal Farmer concerns, a s in levying and collecting taxes, raising troops. & c . operate immediately upon the persons and property o f individuals, and not on slates, extend to organizing the militia. Sl c . the governm ent, a s to its administration, a s to making and executing law s, is not federal, but con­ solidated. T o illustrate my idea— the union m akes a requisition, and assigns to each state its quota o f men or monies wanted, each stale, by its own laws and officers, in its own w ay. furnishes its quota: here the stale governments stand between the union and in d iv id u a l: the laws o f the union operate only on states, as such, and federally. Here nothing can be done without the meetings o f the slate legislatures— but in the other case the union, though the state legislatures should not meet for years together, proceeds im­ m ediately. by its own laws and officers, to levy and co ile d monies o f indi­ viduals. to inlist men. form armies. & c . jH ]crc the law s o f the union operate immediately on the body o f the people, on persons and property: in the same manner the laws o f one entire consolidated government operate.— These two m odes are very distinct, and in their operation and consequences have directly opposite tendencies. The first makes the existence o f the state governm ents indispensable, and throws all the detail business o f levying and collecting the lax es. & c . into the hands o f those governm ents, and into the hands, o f course, o f many thousand officers solely created b y. and de­ pendent on the slate. The Iasi entirely excludes the agency of the respective stales, and throws the whole business o f levying and collecting taxes. & c. into the hands o f many thousand officers solely created by, and dependent upon the union, and makes the existence o f the state government o f no consequence in the case, ft is true, congress in raising any given sum in direct taxes, must by the constitution, raise so much o f it in one state, and so much in another, by a fixed rule, which m ost o f the stales 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 (he true spirit o f a confederated republic; there could be no possible exception to it. did we not find b y exp en cn cc. that the slates will sometimes neglect lo com ply with the reasonable requisitions o f the union, li being according lo the fundamental principles o f federal re­ publics. lo raise men and monies by requisitions, and for the states individu­ ally to organize and train the militia. I conceive, there can be no reason whatever for departing from them, except this, that the stales sometimes neglect to com ply with reasonable requisitions, and that it is dangerous to attempt to com pel a delinquent state b y 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 o f the evils. 1 am not aboul to defend the confederation, or to charge the proposed constitution with imperfections not in it: but w e ought to examine facts, and scrip them o f the false colourings often given them by incautious observa­ tions. by unthinking or designing men. We oughl to premise, that laws for

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Letters raising men and m onies, e v e r in consolidated governm ents, are not often punctually com plied with. Historians, except in extraordinary cases, but very seldom take notice o f the detail collection o f taxes; but these facts we have fully proved, and well attested; that the most energetic governments have relinquished taxes frequently, which were o f many years standing These facts am ply prove, that taxes assessed, have remained many years uncollected. I agree there have been instances in live republics o f G reece. Holland & c . in the course o f several centuries, o f stales neglecting to pay their quotas o f requisitions; but it is a circum stance certainly deserving o f attention, whether these nations which have depended on requisitions prin­ cipally for their defence, have not raised men and monies nearly a s punctu­ ally as entire governm ents, which have taxed directly; whether we have not found the latter as often distressed for the want o f troops and monies as the former. It has been said that the Am phiclionie council, and the Germanic head, have noi possessed sufficient pow ers to controul the members o f the republic in a proper manner. Is this, if true, to be imputed to requisitions7 Is it not principally to be imputed to the unequal pow ers o f those members, connected with this important circum stance, that each member possessed power to league itself with foreign powers, and powerful neighbours, with­ out the consent o f the bead A fter all. has not the Germanic body a govern­ ment as good as its neighbours in general? and did not the Grecian republic remain united several centuries, and form the theatre o f human greatness? No government in Europe has commanded monies more plentifully than the government o f Holland. A s to the United States, the separate stales lay taxes directly, and the union calls for taxes by w ay o f requisitions; and is it a fact, that more monies arc due in proportion on requisitions in the United States, lhan on the slate laxes 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 o f the states, have amounted, specie value, to about 36 millions dollars, about 24 millions o f dollars o f which have been actually paid, and a very considerable pan o f the 12 millions not paid, remains so not so much from the neglect o f the stales, as from the sudden changes in paper m oney. & c which in a great measure rendered payments o f no service, and which often induced the union in­ directly to relinquish one demand, by making another m a different form. Before w e totally condem n requisitions, w e ought to consider what im ­ mense bounties the states gave, and what prodigious exertions they made in the war. in order to com ply with the requisitions o f congress; and if since the peace they have been delinquent, ought w e not carefu lly to enquire, whether that delinquency is to be imputed solely 10 the nature o f req­ uisitions? ought it not in part to be imputed to tw o 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 im posts. & c. has

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The Federal Farmer departed virtually from the constitutional system ; which proposed changes, like all changes proposed in governm ent, produce an inattention and negli­ gence in the execution o f the governm ent in being.

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I am not for depending w holly on requisitions; but 1 mention these few facts to shew they are not so totally futile a s many pretend For the truth o f many o f these facts I appeal to the public records; and for the truth o f the others, I appeal to m any republican characters, w ho are best informed in the affairs o f the United Slates. Since the peace, and till the convention re­ ported. the wisest men in the United S tales generally supposed, that certain limited funds would answer the purposes o f the union; and though the states are by no means in so good a condition as I wish they w ere. yet. I think. I may very safely affirm, they are in a better condition than they would be had congress alw ays possessed the pow ers o f taxation now contended for. The fact is admitted, that our federal governm ent d oes not possess sufficient pow ers to give life and vigor to the political system ; and that we experience disappointments, and several incooveniencies; but w e ought carefully to distinguish those which are merely the consequences o f a severe and tedious w ar. from those which arise from d efects in the federal system . There has been an entire revolution in the United Slates within thirteen years, and the least we can com pute the waste o f labour and property at. during that period, by the w ar. is three hundred million o f dollars. O u r people are like a man just recovering from a severe fit o f sickness. It w as the war that dis­ turbed the course o f com m erce, introduced floods o f paper m oney, the stagnation o f credit, and threw many valuable men out o f steady business. From these sources our greatest evils arise; men o f knowledge and reflec­ tion must perceive it;— but then, have w e not done more in three or four years past, m repairing the injuries o f the w ar. by repairing houses and estates, restoring industry, frugality, the fisheries, m anufactures. & c . and thereby laying the foundation o f good governm ent, and o f mdiviudal and political happiness, than any people ev er did in a like time; w e must judge from a view o f the country and facts, and not from foreign newspapers, or our ow n . which are printed chiefly in the com m ercial towns, where im­ prudent livin g, im prudent im portations, and m any unexpected disap­ pointments. have produced a despondency, and a disposition to view every thing on the dark side. Som e o f the evils w e feel, all will agree, ought to be imputed to the defective administration o f the governm ents. From these and various considerations. I am very clearly o f opinion, that the evils we sus­ tain, merely on account o f the defects o f the confederation, are but a s a feather in the balance against a mountain, com pared with those which would, infallibly, be the result o f the loss o f general liberty, and lhat happi­ ness men enjoy under a frugal, free, and mild government-

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H eretofore we do not seem to have seen danger any w here, bot in giving pow er to congress, and now no where but in congress wanting pow ers: and. without exam ining the extent o f the evils to be rem edied, by one step, we are for giving up to congress almost all powers o f any importance without

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Letters limitation. The defects o f the confederation are extravagantly magnified, and every species o f pain w e feel imputed to them: and hence it is inferred, there must be a total change o f the principles, as well as forms o f govern­ ment: and m the main point, touching the federal pow ers, w c rest all on a logical inference, totally inconsistent with experience and sound political reasoning.125 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 pow ers unlimited, as to the purse and sw ord, to raise men and monies, and form the militia, are necessary to that end: and. therefore, the federal head ought to possess them. T his reasoning is far more specious than solid: it is necessary (hat these powers so exist in the body politic, as to be called into exercise whenever necessary for Ihe public safety: but it is by no means true, that the man. or congress o f men, whose duly it more im­ mediately is to provide for the com m on 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, (hat the purse and sword ought not to be placed in the same hands in a free government. Our w ise ancestors have carefully separated them— placed the sword in the hands o f their king, even under considerable limitations, and the purse in the hands o f the com m ons alone: yet the king m akes peace and w ar. and il is his duty to provide for the common defence o f the nation. This authority at leasl goes thus far— that a nation, w ell versed in the science o f governm ent, does not conceive il to be necessary or expedient for ihe man entrusted with the common defence and general tranquility, to possess un­ limitedly the powers in question, o r even in any considerable degree. Could he. whose duty it is to defend the public, possess in him self independently, all the means o f doing it consistent with the public good, it might be con­ venient: but the people o f England know that their liberties and happiness would be in infinitely greater danger from the king's unlimited possession o f these pow ers, than from all external enem ies and internal com m otions to which they might be exposed: therefore, though they have made il his duty to guard the empire, yet they have w isely placed in other hands, the hands o f their representatives, the pow er 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 assem blies. Reason and facts evince, that how ­ ever 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 m eans: yet such magistrate, or head, never ought to possess them, if thereby the public liberties shall be endangered. The pow ers in question n ever have been, b y nations w ise and free, deposited, nor can they e v e r be, with safely, any w here, but in the principal members o f the national system :— w here these form one entire

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The Federal Fanner governm ent, as in Great-Britain, they are separated and lodged in the prin­ cipal members o f it. But in a federal republic, there is quite a different organization; the people form this kind o f government, generally, because their tern tones are too extensive to admit o f their assembling in one legis­ lature. or o f executing the law s on free principles under one entire govern­ ment. They convene in their local assem blies, for local purposes, and for managing their internal concerns, and unite thesr states under a federal head for general purposes. It is the essential characteristic o f a confederated republic, that this head be dependant on. and kept within limited bounds by, the local governm ents: and it is because, in these alone, in fact, the people can be substantially assembled or represented. It is, therefore, w e very universally see. in this kind o f governm ent, the congressional pow ers placed in a few hands, and accordingly limited, and specifically enumerated: and the local assem blies strong and well guarded, and com posed o f numerous members. Wise men will alw ays place the controuling pow er where the people are substantially collected by their representatives. By the proposed system , the federal head will possess, without limitation, .aljnost every sp ecies o f pow er that can . in its exercise, tend to change the governm ent, or to endanger liberty: while in it. 1 think u has been fully shew n, the people will have but the shadow o f representation, and but the shadow' o f security for their rights and liberties. In a confederated republic, the division o f representation, & q . in its nature, requires a correspondent division and deposit o f powers relative to taxes and military concerns: and I think the plan offered stands quite alone, in confounding the principles o f govern­ ments in them selves totally distinct. I wish not to exculpate the states for their improper neglects in not paying their quotas o f requisitions: but. in applying the rem edy, we must be governed by reason and facts. Jt will not be denied, that the people have a right to change the government when the majority chuse it. if not restrained by som e existing com pact— that they have a right to displace their rulers, and consequently to determine when their measures are reasonable o r not— and that they have a right, at any rime, 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, u question arises, what pow ers 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 governm ent, we ought to give pow er to the union, so far only a s experience and present circum stances shall direct, with a reasonable regard to time to com e. Should future circum stances, contrary to our e x ­ pectations, require that further powers be transferred to the union, we can d o it far more easily, than get back those we may now imprudently give The system proposed is untried: candid advocates and opposers admit, that ii is. in a degree, a mere experim ent, and that its organization is weak and im­ perfect; surely then, the safe ground is cautiously to vest pow er in it. and

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Letter? when we are sure w e have given enough for ordinary exigencies, to be extremely careful how we delegate pow ers, which, in common cases, must necessarily be useless or abused, and o f very uncertain effect in uncommon ones. By giving the union pow er to regulate com m erce, and to levy and collect taxes by imposts, w e give it an extensive authority, and permanent produc­ tive funds. 1 believe quite a s adequate to the present demands o f the union, as exises and direct taxes can be made to the present demands o f the separate states. The state governm ents are now about four lim es as expen­ sive as that o f the union; and their several state debts added together, are nearly as large as that o f the union— O u r impost duties since the peace have been almost as productive as the other sources o f taxation, and when under one general system o f regulations, the probability is, that those duties will be very considerably increased: Indeed the representation proposed will hardly justify giving to congress unlimited pow ers 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 o f the union be found inadequate to any uncommon exigencies? T o this w e may observe, that trade generally finds its own level, and will naturally and necessarily leave o ff any undue burdens laid upon it: further, if congress alone possess the impost, and also unlimited pow er to raise monies by excises and direct taxes, there must be much more danger that tw o taxing pow ers, 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. H ow ever, it is not my object to propose to exclude congress from raising monies by internal taxes, as by duties, ex cises, 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 conform ity to the federal plan; that is. by the agency o f the state governments in all cases, except where a state shall neglect, for an unreasonable tim e, to pay its quota o f a requisition; and never where so many o f the state legislatures as represent a majority o f the people, shall form ally determine an excise law or requisition is improper, in their next session after the same be laid before them. We ought alw ays to recollect that the evil to be guarded against is found by our own experience, and the experience o f others, to be mere neglect in the states to pay their quotas; and pow er 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, w e secure the means o f col­ lecting the taxes by the usual process o f law . and avoid the evil o f attem pt­ ing to compel or coerce a state; and w e avoid also a circum stance, 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 o f tax law s o f the union, executed in the bow els o f the states by many thousand officers, dependent a s to the assessing and collecting federal taxes, solely upon the

93

2.8.309

The Federal Farmer union. On ev ery principle Chen, w e ought to provide, that the union render an exact account o f all monies raised b y imposts and other taxes; and that w henever monies shall be wanted for the purposes o f the union, beyond the proceeds o f the impost duties, requisitions shall be made on the stales for the monies so wanted; and thal the power o f laying and collecting shall never be exercised, except in cases where a state shall neglect, a given lim e, to pay its quota. This m ode seem s to be strongly pointed out by the reason o f the c a se , and spirit o f the governm ent; and 1 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 restnetions. still the pow ers o f the union in matters o f taxation, will be too unlimited; further ch ecks, in my mind, are indispensably necessary. N or do 1 con ceive, that as full a representation a s is practicable in the federal governm ent. will afford sufficient security: the strength o f the go v­ ernment, and the confidence o f the people, must be collected principally in the local assem blies; every part or branch o f the federal bead must be feeble, and unsafely trusted with large powers. A government possessed o f more pow er than its constituent parts will ju stify, will not only probably abuse it. bui be unequal to bear its ow n burden; it may as soon be destroyed by tbe pressure o f pow er, as languish and perish for want o f it.

3- 8.210

T here are tw o w ays funheT o f raising checks, and guarding against undue combinations and influence in a federal system . T h e first is. in levying taxes, raising and keeping up arm ies, in building navies, in forming plans for the militia, and in appropriating monies for the support o f the military, to re­ quire the attendance o f a large proportion o f the federal representatives, as two-thirds or three-fourths o f them: and in passing law s, in these important cases, to require the consent o f two-thirds or three-fourths o f the members present. The second is. by requiring that certain important laws o f the federal head, as a requisition or n law for raising monies by excise shall be laid before the slate legislatures, and if disapproved o f by a given number o f them, say by a s many o f them as represent a majority o f tbe people, the Jaw shall have no effect. W hether it would be adviseable to adopt both, or either o f these checks. 1 wdl not undertake to determine. W e have seen them both exist m confederated republics. The first exists substantially in the con­ federation. and will exist in some measure in the plan proposed, as in chusing a president b y the house, in expelling members; in the senate, in making treaties, and in deciding on impeachm ents, and in the whole in altering the constitution. The Iasi exists in the United Netherlands, but in a much greater extent. T h e first is founded on this principle, that these important measures m ay, som etim es, be adopted by a bare quorum o f members, perhaps, from a few states, and that a bare majority o f the federal represen­ tatives may frequently be o f the aristocracy, o r some particular interests, connections, or parties in the community, and governed by m otives, view s, and inclinations not com patible with the general interest.— The last is founded on this principle, that the people will be substantially represented.

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Letters only in their state or local assem blies; that their principal security must be found in them; and that, therefore, they ought to have ultimately a con­ stitutional controul o ver such interesting measures. 1 have often heard it observed, that our people are well informed, and will not submit to oppressive governments: that the state governm ents will be

2.8.211

their ready advocates, and possess their confidence, mix with them, and enter into all their w ants and feelings.124 This is all true; but o f w hat avail will these circum stances b e. if the state governm ents, thus allow ed to be the guardians o f the people, possess no kind o f pow er by the form s o f the social com pact, to stop in their passage, the laws o f 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 o f them, in ex­ treme cases, may resist, on the principles o f self-defence— so may the people and individuals. Jl has been observed, that the people, in extensive territories, have more

2 .8 .2 1 2

power, compared with that o f their rulers, than in sm all states.117 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 o f each part, while they move to different points, and one part is offen played o ff against the other. It has been asserted, that (be confederate head o f a republic at best, is in general weak and dependent;— that the people will attach them selves to. and support their local governm ents, in all disputes with (he union.114 Admit the fact: is it any w ay to rem ove the inconvenience by accumulating powers upon a weak organization? The fact is. that the detail administration o f affairs, in this m ixed republics, depends principally on the local govern­ ments; and the people would be wretched without them: and a great propor­ tion o f social happiness depends on the internal administration o f ju stice, and on internal police. The splendor o f the monarch, and the pow er o f the government are one thing. The happiness o f the subject depends on very different causes: but it is to the latter, that ihe best men, the greatest orna­ ments o f human nature, have most carefully attended: it is to the former tyrants and oppressors have alw ays aim ed. The Federal Farmer.

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2.8.213

The Federal Farmer 1. It is intriguing to speculate why the letters begin in this way, especially since the '‘ tellers" of "last winter" could throw definitive light on the authorship; but my own speculations and search have been frchless. There seems lo be no record o f any such letters or o f the possible identity o f the addressee, lhe Republican. 2. For an elaboration o f the extreme parties, see I. 2.8.6-7; V . 28.62; VI, 2.8.68-73; VII. 2.8.97-98. 3 Alexander Pope. Essay on Man. epistle 3, lineB 303-4. Pope's couplet was frequently discussed in the ratification literature, the classic case being the treatment in The Ftdt'rallst no. 68. 4 6 1 . Sec also Penn 3 . 1 2 . 4 : (Maryland] Farmer II. 5.1.36. Generally the Anti-Federalist writers were more critical o f the maxim than The Fed* eral Farmer is here (but sec III. 2.8.24-25; IX. 2-8111; and he is specifically criticized on ihis point by a fellow Ami-Federalist writer. A Countryman (6.6.39). For Federalist discussions o f the importance o f good administration, see Poplicola 4-H .i n-t. 4- The • critical" character o f lhis period was nol simply an invention o f the Federalists or o f Federalist historians See V|. 2.8.70: Brutus I. 2.9.2; Old Whig IV. 3.3.18: Philadelphteasis I, 3.9 2 . CentirwJ IV. 2.7.91 n- 455 The author is thinking of such men as Abraham Clark o f New Jersey. Richard Caswell and Willie Jones o f Norib Carolina; Patrick Henry, Thomas Nelson, and Richard Henty Lee of Virginia; all of whom were critics of the Constitution who had been elected to (he Constitutional Convention but had declined to serve or failed to attend. See Farcand 111. 557-59. Cf. Federal Fanner V, 2.6.62. and Lee's letter to Randolph, on 26 March 1787. expressing his confidence in the gentlemen appointed to the Convention (Lee. Letters II. 415). The discussion of the panics favoring and opposing the Constitution ts continued in V . 2.8.62: VI. 2.8.68-73. 6 Pickering replied. “ In the proposed Constitution there is no foundation for an aristocracy; for ils officers (including in this term as well thr legislative as the execu­ tive branches) do not hold their places by hereditary right, norfor iff*, nor by electing one another; neither is any portion of wealth or properly a necessary qualification." Pickering and Upham. The Life o f Timothy Pickering ]|. 353. However, it is not a conventional but the natural aristocracy that The Federal Farmer is concerned with. See III. 2.8.25: VII. 2.8.97 7. Note that all o f these, including the first, are described as forms under which (he United Slates may exist as one nation. As Merrill Jensen says. Ihe issue was not whether there was a "nation" before 1787 "There was a new nation, as the men of the time agreed: they disagreed as to whether the new nation should have a federal or a national government.” Jensen. New Nation xiv. They also disagreed, however, about whether a nation could exist as a nalion without a national government. Cf. James Wilson’ s similar statement o f alternatives in his 24 November speech before the Pennsylvania ratifying convention. Me Master and Stone 225 ff: EUiol 11. 427 If. 8. See III. 2.8.35. where The Federal Farmer adds lo Ihe legiumate powers of the general government the regulation of trade between the states, but omits to mention the militia and bankruptcies. Dn bankruptcy laws, sec XVIU. 2.8.221. where he concludes that the power lo pass bankruptcy laws should not be given to the federal government. 9. The Federal Farmer displays a significant shift in terminology in this connection Here he makes the then standard distinction between a federal plan, on the ooe side, a plan o f consolidation, on the other side, and what he colls a "partial consolidation" in the middle, consisting o f a combination of federal and consolidated or national princi­ ples. The distinctions are fundamentally identical to those drawn by Publius m The Federalist no. 39. 253-57. In his sixth essay, however, the advocates of the earlier and merely advisory "federal plan" become one kind o f "pretended federalists" (the others being the advocates o f the earlier "consolidation"), while the proponents of the earlier "partial consolidation" become the ‘True" or "honest federalists.'' See V I. 2.8.72. See Marlin Diamond's essays. "W hat the Framers Meant by Federalism." A Nation o f States, ed. Robert Goldwin, 2d ed. (Chicago 1974) 25-42: and " The Federalists' View of Federalism.” Essays on Federalism (Claremont. CaJ.. I9bi). On the characteristics o f the "federal republic,” see XVII, 2.8.204-5. For other important Anti-Federal discussioes o f the meaning of a federal system or fed*

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Letters era! republic, see Brums I. 2.9 4-21; (Pennsylvania) Farmer 3.14.6-10, Henry 5.16.1-2: Clinton 6.13.2. 27 10. Cf, Monroe’ s discussion of the desirability of consolidation if it were practica­ ble. 5.21.120. 3. 11. On the question of a fret and equal representation, see The Federalist no*. 35-36. Representation is one o f The Federal Farmer’ s major themes See III. 2.8.2^26. 39: V, 2.8.59-bo: VI. 2.8.76-77; VH-X1I, 2.8.g>-t65: XV. 2.8.190. The other major Anli-Fedcral discussion* o f representation will be found in Brutus I, 3.9.14-16: DeWilt 4-3-14: Cornelius 4 -109: (Maryland! Farmer ll, 5,1.22-32; V. 5.1.71-73: Chase 5.3.20; Republics 5.13.3; Impartial Examiner 5.T4 28-32. 12. On jury trials sec IV. 2.8.44.53-55. VI. 2.8.80. XV. 2.8.190-94. 13 A semicolon has been omitted here. T4.

H ow ever

a s P u b l i u s s h r e w d l y a r g u e * , i f t h e r e m o t e s t a l e s s h a r e l e a s t io t h e

c ir c u la t io n o f th e o r d in a r y b e n e fit s o f u n io n , th e ir e x p o s e d p o s it io n g iv e s th e m a n u n u s u a lly g r e a t d e p e n d e n c e o n t h e a id o f th e U n io n . T h e r e m o t e s t a t e s g e t le s s o u t o f th e U n io n , b u t t h e y n e e d w h a t t h e y d o g e t m o r e , a n d t h u s t h e " p r o p e r e q u ilib r iu m '' is m a in t a in e d .

The Federalist

n o . 1 4 . &7 -

15. See below, n. 19. 16. See McMastcr and Stone 144-45 (Wilson): Ford, Pamphlets 148-49 (An American Citizen). 361 (Iredell): Ford. Essays 165 (A Landholder). 397-98 (Hugh Williamson): Ford. Pamphlets 241 (Aristides) This point 1* made frequently by Federalists during the state ratification debate*. 17 On the need for and functions o f a Bill of Rights, see JV. 2.8 46-56. XVI. 2.8.196-203. On kinds o f rights, see Vf. 2 B.B0-86. 18. Publius answers this argument (and hs continuation in the next paper) in The Federalist no. 27. In no. B. Publius describes in some detail an effect similar to that alluded to Here by The Federal Farmer, but he derives it from a different cause, namely dissension among the states under an inadequate general government. 19. On the connection between free laws and the character of the people, see 11 i8.tB : V 2.8.59: VII. 2.8.93-96; X. 2 B.127. 139; X Vtll. 2.8.227. See also Cato III. 2 6 15-20: Ceniinel l. 2.7.9: Brutus 1. 2.9.16; Federal Republican 3.6 .2T; Philadelphiensis II. 3.9.9. Turner 4.18; Columbian Patriot 4.28.2 Tlhis question is. of course, immediately connected with the question o f representation: see above, n. It. 20. An Anti-Federalist essayist. A Countryman from Dutchess County (6.6.42-64). points out that there is a substantia) difficulty in the contention that good citizens should acquiesce even if essential alterations are not made. 21. On the natural aristocracy, see VI. 2.8.97. 22. A Countryman from Dutchess County makes the point, nearly always passed over even by the Anti-Federalists, that the Senate is not entirely on the federal plan, for each senator has one vote: whereas "by the present confederation, which is a union of the slates, not a consolidation, all the delegates, from a state, have but one vote, and in the stale senate, which is on the plan o f consolidation, each senator hasa vote" (6.6.45). Cf- (Pennsylvania) Farmer 3.24. i/>-151 Republicu* 5.13.12. In the Additional Letters (XJ. 2.8 143 ffj The Federal Farmer records a more favorable opinion of the "federal" basis of the senate. It should be noted that many Federalists defend the "federal" basis o f the Senate as sound in principle and even assume that senators will be subject to instructions from their states. See especially Elliot II, 26 (Cabot). 47 (King): Ford. Pamphlets 40 (A Cicizrn of America). 206-7 (Fabius). 223 IT. (Aristides): Ford. Essays 29 (Cassius): Pennsylvania Gazette 30 January 1788 (A Freeman); Virginia Independent Chronicle Extraordinary 9 April 17B8 (A Freeholder): Maryland Journal t August 1788 (Speech Intended to Have Been Deliv­ ered In Maryland Convention). 23. Publius presumably refers to The Federal Farmer when, in no. 68. 457-58, he wriles thai "the most plausible o f (the opponents], who has appeared in print, ha* even deigned to admit that the election o f the President is pretty well guarded." Sec Federal Fanner XIV. 2.8.177. James Wilson also noted that the scheme for selecting the President "is not objected to." McMastcr and Stone 398. For cnticism. however, see Repubhcus 5.13.J 3. 24- See Brutus IV. 2.9.48 n. 34.

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The Federal Farmer 25 O ’. The Federalist no 35, 216-18. 26 Publ ms replies That if (he government were interested in a system of influence, 'the most cenain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments.” The Federalist no. 36. 228 The question o f executive influence is discussed more fully and in broader terms in XUI. 2.8.166-71 Cf- Bnitus III, 2.9.42 n. 29. 17- See Ccntmel ll. 2.7.52 n. 30. 28. See Citizen o f America. An Examination . . . . Ford. Pamphlets 49; and state­ ment by Roger Sherman and Oliver Ellsworth, quoted by Old Whig VI, 3.3.37 and n.

35-

29. On the concurrent taxing powers o f the national and stale governments, see The Federalist nos. 32-34; no. 36. 227-39. Publius basic argument is that a con­ current junsdiction in this case was the only admissible substitute for cm entire sub­ ordination o f the states. For other Federal and Anti-Federal discussions o f concurrent power to tax see McMaster and Slone 260 (Whitehill). 268-69 (SmilicJ, Ford. Pam­ phlets 50-51 (Webster): Ford. Essays 235-36 (Sherman); Elliot II. 333. 337. 372 (Smith); 339 (Williams). 346 (R. R. Livingston). 361-61 (Hamilton). 372 (Lansing); Elliot 111. 306, 332 (Madison): Elliot IV. 75 (Spenser); Brutus 1. 2.9.5; Old Whig VI. 3-3-33—39- Mason 5.17.1. 30. See above, n il 31. The argument here about the select militia and the posse commitatus versus military execution are answered directly, though r>ol by name, in The Federalist no. 29. i8iff. Regarding the former. Publius professes himself perplexed how to treat the objections, but his raillery' touches a sensitive point: "Where in the name of common sense are our fears to end tf we may not mist our sons, our brothers, our neighbours, our felipw-cnizens?" Ibid 185. J2 On further reflection. The Federal Farmer concluded that the power to pass bankruptcy laws should noi be given to the federal government. See XVIU. 2.8.221. 33. Thejudieiary is discussed fully in XV. 2.8.183-95. See Pickering s well-argued replies to The Federal Farmer's contentions on this head, Pickering and Upham. The Life of Timothy Pickering |], 359-60. 366-67 34. Sec Democratic Federalist 3.5.6 n 6. 35. See above, n. 28. 36. Sec above, n 17. 37 Cf. Chief Justice Marshall's argument in McCulhx h v. Maryland. 4 Wheat 316. 403 11819); and Publius in The Federalist no. 39. 253-54. 38. Sec Ford. Essays 163 l A Landholder): Ford. Pamphlets 77 (A Citizen o f New York); The Federalist no. 84: Edmund Pendleton, letter to Lee. 14 June 178$. David John Mays, ed., The Letters and Papers o f Edmund Pendleton (Charlottesville 1967) II. 532; A Native o f Virginia. Observations upon the Proposed Plan o f Federal Government (Petersburg 1787). reprinted in The Writings o f James Monroe ed. S. M. Hamilton (1898-1903) I. 352 flf. (but not written by Monroe). For Anti-Federal re­ buttals. sec One of the Common People 4.8.1 n. r; (New Hampshire] Farmer 4.17.2. 39. This argument is not entirely consistent with the preceding one, but Federalists, notably James Wilson, made them both See (New Hampshire) Farmer 4. i 7 »4 n 9- See McMasterand Stone 143-44 (Wilson). rB? (Plain Truth). 377 (Mc­ Kean): Ford. Essays 45-46 (Cassius); Ford. Pamphlets 242 (Aristides). 356 fF (Iredell); Elliot IV, 259 (Pinckney). For Anti-Federal replies see Martin 2.4.38 n. 9; Bratus II. 2.9.26; Cincinnatus I. 6.1.4, DeWiit 4.3.7. 40. See Impartial Examiner 5.4.5: Henry 5.16.24. On this whole question, see Federal Farmer XVI. 2.8.196 ff 4J See Bratus 11. 2.9.30 n 2242. See above, nn. 12, 16. 43. John Adams. Defence 1. preface {Works |V. 290-91). 44 See VI. 2.8.71. For other Anti-Federal discussions o f the ever-alert aristoc­ racy. see [Maryland) Farmer IV. 5.1.16-32: Henry 5.16.7-8: Plebeian 6.11.2. 4 5 . D i c k i n s o n . Letters from a F o r m p / 1 in Pennsylvania X L

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Letters 46 See above, n. 19. and III. 1.8.39; see VI. 1.8 97; see below, n. 91. Cf. the arguments of A Citizen o f America (Noah Webster) and A Landholder (Oliver Ellsworth), Ford. Pamphlets 57-61; Ford, Essays 166. 47 See above, n- 1 1. 48. See Pennsylvania Convention Minority 3.11.6-11: Ccntincl III. x.7 7 »49. See below, Philadelphiensis I. 3.9.2-6, 50. Delaware. Pennsylvania. New Jersey. 5). On the parties, see above, n. 1; on the forms of "federalism" see above, nn. 7. 9. On Anti-Fcdend attacks on the framers, sec Ccntinel III. 1.7.70. si The author probably refers here principally to the vigorous replies to and attacks on Mason. Geny. and Lee made by A Landholder (Oliver Ellsworth) in a scries of essays published in late 1787 See Ford. Essays 150-66. 173-77- A Land­ holder described Lee as possessing a "factious spirit" and an "implacable haired to General Washington." and suggested that he was "the author o f most of the scurrility poured out in the New York papers against the new constitution." Ford, Essays 161. Other Federalist writers referred to Lee. and especially to Mason and Gerry by name (all of them having published criticisms of the Constitution over their own names); but on rhe whole the Anti-Federalists at least equaled their opponents in personal attacks. 53. The Letters o f Junius (WoodfalFs Junius|; see VIII. 2.B.107 and n. 69 54. "It is a pity that the expectations which actuated the authors of the existing confederation neither have nor can be realized:— accustomed to see and admire the glorious spmi which moved all ranks of people in the most gloomy moments of the war. observing Iheir steadfast attachment to Union, and the wisdom they so often manifested both in choosing and confiding in their rulers, those gentlemen were led to flatter themselves that the people of America only required to know what ought to be done, to do it. The amiable mistake induced them to institute a national government In such a manner, as though very fit to give advice, was yet destitute of power, and so constructed as 10 be very unfit to be trusted with it They seem not 10 have been sensible that mere advice is a sad substitute for laws; nor to have recollected that the advice even of the allwise and best of Beings, has been always disregarded by a great majority of all the men that ever lived " A Citizen of New York [John Jaiy]. "An Address to the People of the Stale of New-York." 1787. Ford. Pamphlets 71. The Articles of Confederation. A Citizen of Philadelphia wrote, "w as an honest and solemn covenant among our infant Stales, and virtue and common danger supplied its defects." McMastcr and Slone to6 55. Note that in the sequel the distinction made here is not maintained, and the list jven Is of "unalienable or fundamental rights in the United States" VI, 2.8.86. See I. 2.8.19, where The Federal Farmer also writes o f "unalienable and fundamental rights " 56 See above, n. 19 57. See above, n. II. 58. The second point is not reached until letter XII. 2.8.148. at which time the numbering is abandoned 39. See above. V. 1.8.59, 60. See above. II. 1.B.1 s* Publius contends that "the idea o f an actual representa­ tion of all classes of the people by persons of each class is altogether viwonary." The Federalist no. 35. 219. The Federal Fanner is not referring specifically to The Federalist, however, since the essay of Publius was first published on 5 January 1788, while this essay of The Federal Farmer is dated 31 December >767 61. Cesarc Bonesana Beccaria, An Essay on Crimes and Punishments (London 1767). Introduction: quoted in "Address 10 Inhabitants o f Quebec. October 26,1774" (wrilien by R. H. Lee). Journals o f the Continental Congress I. 106. This edition of Bcccana s book, like the other early English translations, followed Beccaria'* origi­ nal (1764) organization o f chapters. Beccaria himself later accepted an improved organization made in the 1766 translation into French by Andrt Moletter This is the preferable text, and it is the one used in the modem collection o f Beccaria4s works and in a recent Library of Liberal Arts paperback edition of On Crimes and Punish­ ments. Unfortunately, the specific passage here, which was quoted by thr Con-

f

99

Tbe Federal Farmer unco!al Congress and by *evend Anti-Federalists and which wa* the first sentence in ihe original introduction, was considerably altered in the revision, making the modem editions different in thiscrucial respect from those available to the American founding generation. See Cesare Bcccaria, Opere. ed. Seipe Romagnoli (Florence 1958) I, 39; ll. 867-63; Cesare Beccaria. On Crimes and Punishments, trens. Henry Paiolncci {Indianapolis 1963). 62. The Spirit n f Laws XJ. eh. 6. 63. See (bid. II, ch. 2. 64. John Adams gave good and influential expression to the stock of ideas on the natural aristocracy upon which the Anti-Federalists drew. See his Defence, letter 25 IWorks IV, 396-98), For other Ami-Federalist discussions o f the natural aristocracy, see above. Ill, 1.8.25; Cato VI. 3.643; Brutus 111. 3.9.42; [Maryland] Farmer II. 51.26-32; Smith 6,12.2a n- 24. For Federalist replies, see McMasler and Slone 335-36 (Wilson); Elliot II. 256 (Hamilton); Carlisle Gazette 24 October 1787 (A Citi­ zen). 65. While the thought is a common one. I have not been able to find the specific source of the observation about merchants. Regarding the schools. John Adams wrole: ••Monarchies and aristocracies are in possession o f the voice and influence of every university and academy in Europe. Democracy, simple democracy, never had a patron among men of letters. Democrauc&J mixtures in government have kisi almost all the advocates they ever Had out of England and America," John Adams. Defence, preface (Works IV. 289). 66. This consideration takes place in letters V lll-X . 2.8.101-42. 125. On h i l l s o f r i g h t s s e e a b o v e . I I . 2.8.19-20 116. See above, nn. 38,39.40. For Federalist arguments (hat a bill of rights would be dangerous, see The Federalist no 84. 579; McMaSter and Stone t4>-44, 251-54 (Wilson). 189(PlainTruth). 296(Yeales>; Fotd. Pamphlets 242(Aristides).360(Mar­ cus); Elliot III. 191 (Randolph), 620 (Madison); Elliot IV. 141 (Maclaine). 143 (Johnston). 149. J67 (Iredell), 316 (General Pinckney). 117. J a m e s W i l s o n . ' A d d r e s s t o t h e C i t i z e n s 01 P h i l a d e l p h i a . * ' M c M a s t e r a n d S t o n e . 1 4 3 - 4 4 S e c B r u t u s I I . 2.9.30 n 2 2 . ft 8 For other expressions o f this important theme, see Old Whig IV, 3.3.21-24; Impartial Examiner 5.14.5. 10; Henry 5.16-35-38; Delegate Who Has Catched Cold 5-*9 13- 17; Sentiments of Many, passim, A good statement of this view o f a bill of rights is provided by Edmund Randolph in commenting on the Virginia Declaration of Rights. Sec Bernard Schwartz, The BUI o f Rights (New York 1971) 1. 249. (19. See II. 2.8.16 n 12. 120 Blackstone Commentaries on the Laws o f England III. 379. 121 |While the precise reference has not been located, the context suggests DeIxilme. The Constitution o f England, perhaps 11. ch 21 See text at n. 122 below (XVI. 2.8 203). which was located in DeLolme; see also text at n. 67 (VIII. 2.8.102). where The Federal Farmer identifies DeLotmc and praises him.— M.D.] 122. DeLolme. The Constitution o f England I. ch. 3. 123. See Me Master and Stone 264, 390 (Wilson); Ford. Pamphlets 39 (A Citizen of America). 121 (A Citizen of Philadelphia). 207 (Fabius). 247-48 (Aristides); Ford. Essays 238 (A Citizen o f New Haven); Elliot II. 46 (Ames); Elliot IV. 58 (Davies). Publius, it should be noted, does not acknowledge this proposition. Sec The Federalist nos 9. 15. 39. Sec Centinel V. 2.7.94. 124. I. 2.8.i. 125. Cf. The Federalist, esp no. 2?. 147-51 (AO. 3 f126. See above, n. 80 (27. See The Federalist no. 28. 179; cf, the argument here with The Federalist no. ro. 128. See 7V Federalist no. 17. J07: no. 27. 172- 73; McMastcr and Slone 302. 315 (Wilson), Elliot II. 46 (Ames); 239.267.304. 354 (Hamilton); Elliot HI. 18 (Nicholas). 257-59 (Madison). Cf. below. Brutus XL 2.9.130 n. 87.

IOO

Letters 129- See Brums V. 1 . 9 58-59: VI. 3.9 77-78 130. See above. I. 3.8.10. 131. See Brotus Xll. 2.9 155-57 . ._ 13 3 James Wtlsoo. Philadelphia r a t i f y i n g convention. Me Master a n d S t c m c 324-

JOT

Essays o f Brutus N F W YORK J OURNAL

O cto b er 1787- April 1788

The essays o f Brutus are am ong the most important Anti-Federalist w rit­ ings. In clear and forceful argument Brutus takes up in a highly competent w ay the major Anti-Federalist them es, such as consolidation,1 the small republic, a bill o f rights, and representation.1 He provides the best AntiFederalist rebuttal o f the powerful Federalist argument, well known in the form given it by Publius, that the federal government must be given unlim­ ited pow ers to meet the unlimited contingencies implicit in its vast re­ sponsibility. He provides an extended and excellent discussion— the best in the Anti-Federalist literature— o f the judiciary to be established under the Constitution and its far-reaching im plications.3 In these latter respects and in generaJ, the Brutus essays are the most direct Anti-Federal confrontation o f the arguments o f The Federalist. The essays appeared in the New York Journal between O ctober 1787 and April 1788. during w hich time the first seven ty-seven papers o f The Federalist also appeared. T h ey were w idely reprinted and referred to: but despite their importance and high quality, they had never been reprinted in their entirety until 19 71/ The essays have generally been attributed to Robert Y a tes on the author­ ity o f Paul Leicester Ford The attribution is somewhat questionable. Ford him self having first attributed the essays to Thomas Treadw ell (as did Samuel B Harding), then changing his mind.* Ford does not give the ev i­ dence for concluding that Y ates was the author. A s M onon Borden cor­ rectly observes, the Brutus essays are clearly superior to the essays of Sydney, which have also been attributed to Y ates;6 if, how ever, the latter w ere written by Abraham Y a les, as DePauw contends.7 that would leave the field clear for Robert as Brutus. Ford does not give the evidence on which he formed his judgment, and no evidence one w ay or the other has been unearthed by the present editor.6 (This Brutus is in any case not to be confused with Bratus [Virginia] 5.15.) There follows an extended outline o f the argument o f Brutus. Introduction— Importance o f decision, need fo r care (1, 2.9.1-3). I. B asic q uestion : Is co n fe d erate d go vern m en t b est fo r U .S .? ( 1. 2.9. K i l l .

i°3

Brutus A . Governm ent proposed is. though not perfect consolidation, so clo se as to terminate in it (I. 2.9.4-9). 1. It is supreme within its sphere (necessary and proper clause); so far as its pow ers reach, it is a complete government, not a con­ federation (2.9.5). 2. Powers are ostensibly limited but extend to everything o f im­ portance (2.9. j-9 ). a. Taxing pow er is complete and implies or draws with it ail other powers (j.9.5). b. Judicial pow er is exten sive and will eclipse state courts ta .9 .7 ) c. N ecessary and proper clause might be interpreted to give Congress complete control over states (2.9.8-9). (Back then to question. 2.9.101. B . Can free government be exercised over the whole U .S . reduced to one state? No. 1. Authority denies il (2.9.11). 1. History denies it (2.9.12). 3. Reason denies it (2.9.13-20). a. Distinction between despotic government, pure dem ocracy, free (representative) republic, the Iasi being at issue here (1.9 13). b. Impossibility o f a representation, in a country so large and populous as the U .S .. that will speak the sentiments o f the p e o p le w ith o u t b eco m in g too n u m erou s for b u sin ess (2 .9 14 -15 ). c. Free republic requires a similarity o f manners, sentiments, interests in contrast to U S. variety (2.9.16). d. Execution o f laws in free republic depends on confidence o f people, which must be lacking in so extensive a country (2.9.17-18). e. Legislature cannot have necessary knowledge o f and time to deal with concerns and wants o f different parts (2.9.19). f. In such an extensive republic officers o f government would soon rise above control o f people and abuse their power (2.9 20). A b o ve argument at least show s necessity, in forming government for this country, o f (1) limiting and defining powers, (discussed in V -X V ): (2) ad­ justing parts, (discussed in III. IV . X V I): (3) guarding against abuse o f authority (discussed in 11. 2.9.22-23). H. Bill o f Rights (II. 2.9.22-33). A . The origios o f civil government— kinds o f individual rights. Foun­ dation should be laid in express reservations by people o f such o f their essential national rights as arc not necessary to be parted with (2.9.24: set IX . 2.9.102).

104

Essays B- BUI o f Rights as necessary fo r federal governm ent as for states

(2 .9 .2&-33> t . It is necessary, for exam ple, in protection o f individual m crim i­ nal prosecution (2.9.27-28). 2. It is necessary, for exam ple, as certain provisions in proposed constitution themselves show (2.9.29-30; see IX . 2.9.103-4), 3. This is an original com pact, doing aw ay with all provisions o f slate constitutions that are inconsistent (2.9.31-32). 4. A Bill o f Rights is all the more necessary in view o f unrestrained pow er to make treaties, which becom e part o f supreme law o f land (2.9.33), HI. Organization o f government— representation (HI. IV . 2.9.34-54), (111 and IV deal with the question o f representation, particularly in the House o f Representatives; the discussion is important but [especially IV| somewhat disorderly. The discussion may be grouped among the major headings, as follow s.)

A. Representation of slaves unreasonable and unjust ( 111. 2.9.38-39) B. Equal representation o f states in Senate unreasonable and unjust

(111, 2.9.40). C . The representation is merely nominal— not sufficiently numerous to enable it to resemble the people, to contain representatives o f s e v ­ eral orders o f people, to resist tendency o f natural aristocracy lo rule, to enable people to have knowledge o f representatives (HI. 2.9.41-42. IV . 2.9 45. 48-49)D. There will be no security in so small a body as House o f Represen­ tatives against influence and corruption f i l l . 2.9.42-44; JV, 2.9.47). E. Feeble representation will not command confidence o f people, which is necessary to the execution o f the law in free government; thus execution by military force will be necessary (IV. 2.9.48-50). F. Danger o f **time/place/manner'* provision (IV . 2.9.51-53). G Not sufficient to say good men will rule— constitutions are to reg­ ulate conduct o f bad men (IV , 2.9,54) IV . Legislative powers are broad and indefinite (V -X . 2.9.55-129). (Instead o f proceeding with enquiry into the organization o f the system , Brutus turns next to pow ers granted to legislature. V . 2.9.55. The discussion o f organization is resumed in X V I. 2.9.197 ff.) A . Preamble and necessary and proper clause, taken together, confer what amounts to a pow er to make laws at discretion. Rule o f broad construction stated (V . 2.9,57) B. Taxing pow er (V . V I. V lll. 2.9.55-92). 1. G eneral welfare clau se broadly construed. (V . 2.9.58: V I. 2.9.77-78) 2. The pow er to tax is unlimited (V . 2.9.59-60. V I. 2,9.71-78). 3. The power lo tax will annihilate pow er o f individual states (V . 2.9.61-63; V I. 2.9.64-70. 75-76).

105

Brutus 4. T h e argument that the pow er given to the general government must he unlimited because the exigencies o f the federal govern­ ment are unlimited is insufficient; a. National safety is not the only end; the stales are responsible foT managing internal concerns, which are in fact first objects o f government and which also require revenue (V . 2.9.63;

VI. 2.9.79-81). b. A distinction could have been drawn between external and internal taxes (V . 2.9.63: V II. 2.9.92). c . T h e aim o f Am erican governments is. or ought to be. not glory but dom estic peace and justice {V II. 2 9.86-87). d. Granting the need for additional federal pow ers and granting that remote contingencies cannot be foreseen, yet the pow­ ers need not be unlimited, for rational judgm ents o f need can be made (V II. 2.9 88-90}. C . A u th ority to borrow m oney is general and unlim ited ( V 11J. 1 - 9 -9 3 - 9 5 >• D. Pow er to raise arm ies (V III. IX . X . 2.9.93-129). 1 . This pow er is indefinite and unlimited (V IJi. 2.9.96-97). 2. Standing armies are dangerous to liberty (V III, 2.9.99-to r, IX. 2.9.105. 110; X , 2.9.115-20). 3. Explicit prohibition o f standing army is needed; a general re­ liance on sentim ents o f people and resistance o f states not sufficient (IX . 2.9.106-9. X . 2.9.129). 4. Answ ers to Federalist arguments o f necessity o f standing army and impracticably o f restriction (IX . 2.9.111-14; X . 2.9.121-27). V . Nature and extent o f judicial pow er (X I-X V . 2.9.130-196). (This sub­ ject is little discussed in other writings, yet the real effects o f the new system o f government will be brought home to the people through the judiciary, which occupies a position totally independent. X . 2.9.130). A . Judicial pow er o f constitutional Interpretation (X -X U , 2.9.115158). (Without trying to give perfect explanation, will show that federal judiciary will subvert slate judiciary, if not legislatures. X I.

2- 9 * 33) . 1. Federal courts are vested with power to resolve, according to spirit as well as leller. all questions o f construction o f Constitu­ tion (XI. 2.9.134-38). 2. Judicial pow er will subvert state governm ents and favor general government (X I. 2.9.139-44). a. Wide and general terms o f the Constitution countenance such a construction. If necessary and proper clause does not grant additional powers, it does sanction broad construction (X I. 2.9.139-41). b. Court will be interested in broad interpretation (XI. 2.9.14a). c. British precedent will favor it (X I. 2 .9 -143- 44)-

106

Essays 3. How judicial pow er will operate to extend legislative and judi­ cial authority o f federal government and finally destroy such authority o f states (XU. 2.9.145-58: see X V , 2.9.194-96). B. Other matters o f which federal judiciary has cognizance (X IIIX IV . 2.9.159-85). 1. Authority in all cases arising under laws o f U .S .. which is proper (XIII. 2.9.159) 2. Pow er to decide all cases in law and equity under treaties is unintelligible— what is equity under treaty ( X llt. 2,9.160)? 3. Jurisdiction o ver cases affecting am bassadors, where U -S. is a party, and between states is proper; but doubt if Supreme Court should have original jurisdiction (X1U. 2.9.160; XTV. 2.9.168). 4. Jurisdiction o ver controversies between state and citizen o f a n o th e r sta te not p r o p e r (e x te n d e d d isc u ssio n ) (X III. 2 9.161-67). 5. Appellate jurisdiction o f Supreme Court is one o f most objec­ tionable parts o f Constitution (X IV . 2.9.169). a. A p p eals in crim inal m atters is new and harm ful (X IV . 2.9.170-72). b. Appellate jurisdiction, as granted, in civil cases eliminates final ju ry trial o f facts, despite confused denials o fa d vo ca ies. and will lead to great expense and delay (X IV . 173-78. 184-85). c . These extraordinary powers all the more objectionable be­ cause not needed; state courts provide protection o f individ­ ual rights (X IV . 2.9.179-83). C- Supreme Court under Constitution will be exalted above all other pow er in government and subject to no control (X V . 2.9.186-97). 1. Judges in England hold offices during good behavior but are more carefully circum scribed (2.9.187-88). 2. Proposed judiciary is independent in fullest sense; yet British reason fo r in d ep en d en ce o f cro w n d o es not a p p ly h ere (2.9.189-90). a. No superior to correct errors or control decisions {2.9.191). b. No removal or diminution o f salary for error (2.9.192). c. Pow er o f Court often superior to legislature— can declare acts o f legislature void (2.9,193-96). D. Judiciary should be subject to control o f some supreme body that is responsible to the people (X V I. 2.9.197). V I.

S e n a te ( X V I . 2 . 9 .19 ?- 204). ( A v e r y sketchy discussion).

A . Organization (2.9.198-202). 1. Election by state is proper for confederal system (2.9 198-99). 2. Term too long, and rotation and recatl should be provided (2,9.200-201).

107

Brutus B. Powers (3.9.202-4). The Senate will possess a strange mixture o f legislative, execu tive, and judicial pow ers, which will clash with each other. 1. Ccminel, in his third letter (111. 1.7.77). thought that hrs proposed discussion of the dangers o f consolidation had been rendered superfluous by the appearance of the first number of Brutus 2. Cato contents himself with a very brief discussion o f representation (V. 2.6.38). referring his reader to the able and full discussion o f Brutus, which had appeared by the lime Cato reached this subject. 3. Edward S. Corwin, recognizing the importance of the essays dealing with the judiciary, reprinted essays XI. XII. XV in his Court over Constitution (Princeton. N.J.. 1938) 231-82. 4- William Jeffrey. Jr.. 'The Letters of Bratus— A Neglected Element in the Ratification Campaign o f 1787-88. * University o f Cincinnati Law Review 40. no. 4 . -77? 5. Ford, Pamphlets 117. 424. Harding. The Contest over Ratification o f the Fed­ eral Constitution in Massachusetts t7 n. 3: Ford. Essays 295. 6 See below Sydney 6.9. Morton Borden. The Antifedrralisi Papers (East Lan­ sing. Mich,. 1965} 42 7- DcPauw. The Eleventh Pillar 131. 8. At one poinl Brutus disclaims the legal knowledge necessary to discuss fully the judiciary (below, XI. 2.9. (32). which might seem to argue against the authorship of Yates, who was a lawyer and judge. But the kgai knowledge actually displayed is considerable and argues rather in favor of Yales' authorship, William Jeffrey. Jr., makes the appealing suggestion of Melancton Smith, bui the circumstantial case is noi a Very persuasive one. See University o f Cincinnati Law Review 40. no. 4 (1971): $44-46.

r 18 O c t o b e r 17 8 7

To the Citizens of the State of New-York. 2-9 ' >

When Ihe public is called to investigate and decide upon a question in which not only the present members o f the community are deeply interested, but upon which the happiness and misery o f generations yet unborn is in great measure suspended, the benevolent mind cannot help feeling itself pecu­ liarly interested in the result. In this situation. I trust the feeble efforts o f an individual, to lead Ihe minds o f the people to a w ise and prudent determination, cannot fail o f being acceptable to the candid and dispassionate p an o f the community. Encour­ aged by this consideration. I have been induced to offer my thoughts upon the present important crisis o f our public affairs.

2-9-2

Perhaps this country never saw so critical a period in their political con­ cents. W e have felt the feebleness o f the ties by which these United-States are held together, and the want o f sufficient energy in our present con-

108

Essays federation, to manage, in some instances, our genera) concerns, Various expedients have been proposed to remedy these evils, but none have suc­ ceeded. At length a Convention o f the states has been assembled, they have formed a constitution which will now* probably, be submitted to the people to ratify or reject, who are the fountain o f all pow er, to w'hom alone it o f right belongs to make or unmake constitutions, or forms o f governm ent, at their pleasure. The most important question that was ever proposed to your decision, o r to the decision o f any people under heaven, is before you . and you arc to decide upon it by men o f your own election, chosen specially for this purpose, i f the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings o f liberty, to secure the inestimable rights o f mankind, and promote human happiness, then, if you accept it. you will lay a lasting foundation o f happiness for millions yet unborn: generations to com e will rise up and call you blessed. You may rejoice in the prospects o f this vast extended continent becom ing filled with freemen, who will assert the dignity o f human nature. You may solace yourselves with the idea, that society, in this favoured land, will fast ad* vance to the highest point o f perfection; the human mmd will expand in knowledge and virtue, and the golden age be. in some measure, realised. But if. on the other hand, (his form o f governm ent contains principles that will lead to the subversion o f liberty— if it tends to establish a despotism , or. what Is w orse, a tyrannic aristocracy; then, if you adopt it, this only re­ maining assylum for liberty will be shut up, and posterity will execrate your memory. Momentous then is the question you have to determ ine, and you are called upon by every motive which should influence a noble and virtuous

2 -9-3

mind, to examine n w ell, and to make up a wise judgm ent, (t is insisted, indeed, that this constitution must be received, be it ever so imperfect. If it has its defects, it is said, they can be best amended when they are experi­ enced. But remember, when the people once part with pow er, they can seldom or never resume it again but by force. Many instances can be pro­ duced in which the people have voluntarily increased the powers o f their rulers; but few . if any. in which rulers have willingly abridged their author­ ity. This is a sufficient reason to induce you to be careful, in the first instance, how you deposit the powers o f government. With these Tew introductory rem arks. 1 shall proceed to a consideration o f this constitution: The first question that presents itself on the subject is. whether a con­ federated government be the best for the United Stales o r not?3 Or in other words, whether the thirteen United States should be reduced to one great republic, governed by one legislature, and under the direction o f one execu ­ tive and judicial: o r whether they should continue thirteen confederated republics, under the direction and controul o f a supreme federal bead for certain defined national purposes only?

J09

2.9.4

Brutus This enquiry is important, because, although the government reported by

2.9 5

the convention does not go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it. This government is to possess absolute and uncontroulable pow er, legis­ lative. executive and judicial, with respect to every object to which it ex­ tends. for by the last clause o f section 8th. article 1st. It is declared ‘ 'that the Congress shall have pow er to make all laws which shall be necessary and proper for carrying into execution the foregoing pow ers, and all other pow ­ ers vested by this constitution, in the government o f the United States; or in any department or office t h e r e o f A n d by the 6th article, it is declared "th a t this constitution, and the laws o f the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority o f the United States, shall be the supreme law o f the land; and the judges in every state shall be bound thereby, any thing in the constitution, or law o f any state to the contrary notwithstanding." It ap­ pears from these articles that there is no need o f any intervention o f the state governments, between the Congress and the people, to execute any one power vested in the general governm ent, and that the constitution and laws o f every state arc nullified and declared void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance o f it. or with treaties made under the authority o f the United Stales.— The govern­ ment then, so far as it extends, is a com plete one. and not a confederation. It is a s much one com plete governm ent a s that o f N ew -Y o rk or M as­ sachusetts. has a s absolute and perfect powers to make and execute all law s, to appoint officers, institute courts, declare offences, and annex pen­ alties. with respect to every object to which n extends, a s any other in the world. So far therefore as its pow ers reach, all ideas o f confederation are given up and lost. It is true this government is limited to certain objects, or to speak more properly, some small degree o f pow er is still left to the states, but a little attention to the powers vested in the general governm ent, will convince ev ery candid man. that if it is capable o f being executed, all that is reserved for the individual stales must very soon be annihilated, excep t so far as they are barely necessary to the organization o f the general govern­ ment. T h e powers o f the general legislature extend to ever)' case tha! is o f the least importance— there is nothing valuable to human nature, nothing dear to freemen, but what is within its power. It has authority to make laws which will affect the lives, the liberty, and property o f every man in the United States; nor can the constitution or laws o f any state, in any way prevent or impede the full and com plete execution o f ev ery pow er given. The legislative pow er is com petent to lay taxes, duties, im posts, and ex cises:’— there is no limitation to this pow er, unless it be said that the clause which directs the use to which those taxes, and duties shall be applied, may be said to be a limitation; but this is no restriction o f the power

!

no

Essays at all, for by ihis clause they are lo be applied to pay the debts and provide for the common defence and general welfare o f the United States; but the legislature have authority to contract debts at their discretion; they are the sole jud ges o f what is necessary to provide for the common defence, and they only are to determine what is for the general welfare: this power therefore is neither more nor less, than a pow er to lay and collect taxes, imposts, and ex cises, at their pleasure; not only (is] the pow er lo lay taxes unlimited, as to the amount they may require, but it is perfect and absolute to raise them in any mode they please. N o stale legislature, or any pow er in the state governm ents, have any more lo do in carrying this into effect, ihan the authority o f one state has to do with that o f another- In the business therefore o f laying and collecting taxes, the idea o f confederation is totally lost, and that o f one entire republic is em braced. It is proper here to remark, that the authority to lay and collect taxes is the most important o f any power that can be granted; it connects-with it almost all other pow ers, o r at least will in process o f time draw all other after it; it is the great mean o f protec­ tion. security, and defence, in a good governm ent, and the great engine o f oppression and tyranny in a bad one.4 This cannot fail o f being the case, if we consider the contracted limits which are set b y this constitution, to the late [state?) governm ents, on this article o f raising money. No state can emit paper money— lay any duties, or imposts, on imports, or exports, but by consent o f the Congress: and then the net produce shall be for the benefit o f the United States: the only mean therefore left, for any state lo support its government and discharge its debts, is by direct taxation: and the United States have also pow er to lay and collect taxes, in any w ay they please. E very one who has thought on the subject, must be convinced that but small sums o f money can be collected in any country, by direct taxejs]. when the foederal government begins to exercise the right o f taxation in all its parts, the legislatures o f the several states will find it impossible to raise monies lo support their governm ents. Without money they cannot be supported, and they must dwindle aw ay. and. a s before observed, their powers absorbed in that o f the general government. it might be here shewn, that the pow er in the federal legislative, to raise and support armies at pleasure, as well in peace as in war. and their coitlrout over (he militia, tend, not only to a consolidation o f the governm ent, but the destruction o f liberty.*— 1 shall not. h ow ever, dwell upon these, as a few observations upon the judicial pow er o f this governm ent, in addition to the preceding, will fully evince the truth o f the position. The judicial power o f the United Stales is Lo be vested in a supreme court, and in such inferior courts as Congress may from time lo time ordain and establish.6 The powers o f these courts arc very extensive; their jurisdiction comprehends all civil causes, except such as arise between citizens o f tbe same stale: and it extends to all cases in law and equity arising under (he constitution. One inferior court must be established, I presume, in each

111

2.9.6

2.9.7

Brutus state, at least, with the necessary executive officers appendant thereto. It is easy to see. that in the common course o f things, these courts will eclipse the dignity, and lake aw ay from the respectability, o f the state courts. These

2.9.8

courts will be. in them selves, totally independent o f (he states, deriving their authority from the United States, and receivin g from them fixed salaries; and in the course o f human events it is to be expected, that they will sw allow up all the pow ers o f the courts in the respective states. H ow far the clause in the 8th section o f the 1st article may operate to do aw ay all idea o f confederated states, and to effect an entire consolidation o f the whole into one general governm ent, it is impossible to say. T h e powers given by this article are very general and com prehensive, and it may receive a construction to justify the passing alm ost any law. A pow er to make all laws, which shall be necessary and proper, for carrying into execution, all pow ers vested by Ihe constitution in the government o f the United States, or any department or officer thereof, is a power very com prehensive and def­ inite [indefinite?], and m ay. for ought 1 know, be exercised in a such manner as entirely to abolish the state legislatures.7 Suppose the legislature o f a state should pass a law to raise money to support their government and pay the state debt, may the Congress repeal this law , because it may prevent the collection o f a tax which they may think proper and necessary to lay. to provide for the general welfare o f the United States? For all laws made, in pursuance o f this constitution, are the supreme lay o f the land, and the judges in every stale shall be bound thereby, any thing in the constitution or laws o f the different states to the contrary notwithstanding.— By such a law. the government o f a particular state might he overturned at one stroke, and thereby be deprived o f every means o f its support.

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It is not meant, by stating this case, to insinuate that the constitution would warrant a law o f this kind; or unnecessarily to alarm the fears o f the people, by suggesting, that the federal legislature would be more likely to pass (he limits assigned them by the constitution, than that o f an individual state, further than they are less responsible to the people. Bui what is meant is. that the legislature o f the United States are vested with the great and uncontroulable pow ers, o f laying and collecting taxes, duties, imposts, and excises; o f regulating trade, raising and supporting arm ies, organizing, arm ing, and disciplining (he militia, instituting courts, and other general pow ers. And are by this clause invested with the power o f making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this pow er as entirely to annihilate all the state governm ents, and reduce Ihis country to one single government. And if they may do it. it is pretty certain they will; for it will be found that the pow er retained by individual states, small as it is. will be a clog upon the wheels o f the govern­ ment o f the United States; the latter therefore will be naturally inclined to remove it out o f the w ay. Besides, it is a truth confirmed by the unerring experience o f ages, that every man. and every body o f men, invested with

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Essays power, are ever disposed Jo increase it. and to acquire a superiority over every thing that stands m their w ay. This disposition, which is implanted in human nature, will operate in the federal legislature to lessen and ultimately to subvert the state authority, and having such advantages, will most cer­ tainly succeed, if the federal government succeeds at all. Jt must be very evident then, that what this constitution wants o f being a com plete con­ solidation o f the several parts o f the union into one com plete government, possessed o f perfect legislative, judicial, and executive pow ers, to all intents and purposes, it will necessarily acquire in its exercise and operation. Let us now proceed to enquire, as I at first proposed, whether it be best the thirteen United States should be reduced to one great republic, o r not? It is here taken for granted, that all agree in this, that w hatever governm ent we

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adopt, it ought to be a free one: that it should be so framed as to secure the liberty o f the citizens o f Am erica, and such an on e as to admit o f a full, fair, and equal representation o f the people. The question then will b e. whether a government thus constituted, and Founded on such principles, is practica­ ble. and can be exercised over the whole United States, reduced into one state? If respect is to be paid to the opinion o f the greatest and w isest men who have ever thought or wrote on the science o f government, we shall be constrained to conclude, that a free republic cannot succeed o ver a country o f such immense extent, containing such a number o f inhabitants, and these

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encreasing in such rapid progression as that o f the whole United Slates. Among the many illustrious authorities which might be produced to this point. 1 shall content m yself with quoting only tw o The one is the baron de Montesquieu, spirit o fla w s. chap. xvi. vol. 1 fbook VIII]. " I t is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic there are men o f large fortunes, and consequently o f less moderation: Ihere are trusts too great to be placed in any single subject; he has interest o f his ow n. he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise him self lo grandeur on the ruins o f his country. In a large republic, the public good is sacrificed to a thousand view s; it is subordinate to exceptions, and depends on accidents. In a small one. the interest o f the public is easier perceived, better understood, and more within the reach o f every citizen; abuses are o f less extent, and o f course are less p ro te cte d ."' O f the same opinion is the marquis Beccarari. History furnishes no example o f a free republic, any thing like the extern

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o f the United States, The Grecian republics w ere o f small extent: so also w as that o f the Romans. Both o f these, it is tnie. in process o f time, ex­ tended their conquests o ver large territories o f country; and the conse­ quence w as. that iheir governm ents were changed from that o f free govern­ ments to those o f the m ost tyrannical that e v e r existed in the world. Not only the opinion o f the greatest men, and the experience o f mankind.

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Brutus are against the idea of an extensive republic, but a variety o f reasons may be drawn from the reason and nature o f things, against it. In ev ery governm ent, the will o f the sovereign is the law . In despotic governm ents, the supreme authority being lodged in one. his will is law. and can be a s easily expressed to a large extensive territory as to a small one. In a pure dem ocracy the people are the sovereign, and their w ill is declared by them selves; for this purpose they must all com e together to deliberate, and decide. This kind o f government cannot be exercised , therefore, o v er a country o f any consider­ able extent: it must be confined to a single city, or at least limited to such bounds as that the people can conveniently assem ble, be able to debate, understand ihe subject submitted to them, and declare their opinion con­ cerning it. 2 9 14

Jn a free republic, although all laws are derived from the consent o f the people, yet the people do not declare their consent by them selves in person, but by representatives, chosen by them , who are supposed to know the minds o f their constituents, and to be possessed o f integrity to declare this mind.’ In every free governm ent, the people must give their assent to (he laws by which they are governed. This is the true criterion between a free govern­ ment and an arbitrary' one. The form er are ruled b y the will o f Ihe whole, expressed in any manner they may agree upon; the latter by the will o f one. or a few . If the people are to give Iheir assent 10 the laws, by persons chosen and appointed by them. Ihe manner o f the choice and the number chosen, must be such, a s to possess, be disposed, and consequently qualified to declare the sentiments o f the people; for if ihey do not know , or are not disposed to speak the sentiments o f the people, the people do not govern, but the sovereignty is in a few . N ow , in a large extended country, it is impossible to have a representation, possessing the sentiments, and o f in­ tegrity. to declare the minds o f the people, without having it so numerous and unwieM ly, as to be subject in great measure to the inconveniency o f a dem ocratic government

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T h e territory o f the United States is o f vast extent; it now contains near three millions o f souls, and is capable o f containing much more than ten times that number. Is it practicable for a country, so large and so numerous as they will soon becom e, to elect a representation, that will speak their sentiments, without their becoming so numerous as to be incapable o f trans­ acting public business? It certainly is not. In a republic, the manners, sentiments, and interests o f the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives o f one part will be continually striving against those o f the o th er.10 This will retard the operations o f governm ent, and prevent such conclusions as will promote the public good. If w e apply this remark to the condition o f the United States, we shall be convinced that it forbids that w e should be one government. The United States includes a

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Essays variety o f climates. T h e productions o f the different parts o f the union are very variant, and their interests, o f consequence, diverse. Their manners and habits differ as much as their clim ates and productions; and their senti­ ments are by no means coincident. The laws and custom s o f the several states a rt. in many Tespecls. very diverse, and in some opposite; each would be in fa vo r o f its own interests and custom s, and. o f consequence, a legislature, formed o f representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be com ­ posed o f such heterogenous and discordant principles, a s would constantly be contending with each other. The laws cannot be executed in a republic, o f an extent equal to that o f the

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United States, with promptitude. T he magistrates in every governm ent must be supported in the execution o f the law s, eilher by an armed force, maintained at the public cxpence for that purpose; or by the people turning out to aid the magistrate upon his command, in case o f resistance. In despotic governm ents, as well as in all the monarchies o f Europe, standing armies are kept up to execute the com m ands o f the prince or the magistrate, and are em ployed fo r this purpose when occasion requires; But they have alw ays proved the destruction o f liberty, and (are) abhorrent to the spirit o f a free republic. In England, where they depend upon the parlia­ ment for their annual support, they have alw ays been complained o f as oppressive and unconstitutional, and are seldom em ployed in executing o f the laws; never excep t on extraordinary occasion s, and then under the direction o f a civil magistrate. A free republic will never keep a standing army to execute its law s. It must depend upon the support o f its citizens. But when a government is to receive its support from the aid o f the citizens, it must be so constructed as to have the confidence, respect, and affection o f the people.11 Men who. upon the call o f the magistrate, offer them selves to execute the laws, are influenced to do it either b y affection to the governm ent, o r from fear; where a standing anny is at hand to punish offenders, every man is actuated by the latter principle, and therefore, when the magistrate calls, will obey; but. where this is not the case, the government must rest for its support upon the confidence and respect which the people have for iheir government and laws. The body o f the people being attached, the government will alw ays be sufficient to support and execute its laws, and to operate upon the fears o f any faction which may be opposed to it, not on ly to prevent an opposition to the execution o f the law s them selves, but also to com pel the m ost o f them to aid the magistrate: but the people will not be likely to have such confidence in Iheir rulers, in a republic so extensive a s the United States, a s necessary for these purposes. T h e confidence which the people have m their rulers, in a free republic, arises from their knowing them, from their being responsible to them for iheir conduct, and from the pow er they have o f displacing them

"5

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Brutus when they misbehave: but in a republic o f the extent o f this continent, the people in general would be acquainted with very few o f their rulers: the people at large would know little o f (heir proceedings, and it would be extrem ely difficult to change them . The people in G eorgia and N ew Hampshire would not know one another’ s mind, and therefore could not act in concert to enable them to effect a general change o f representatives. The different p an s o f so extensive a country could not possibly be made a c ­ quainted with the conduct o f their representatives, nor be informed o f the reasons upon which measures were founded. T h e consequence will be, they will have no confidence in their legislature, suspect them o f ambitious view s, be jealous o f every measure they adopt, and will not support the laws they pass,12 Hence the government will be nerveless and inefficient, and no w ay will be left to render it otherwise, but b y establishing an armed force to

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execute the laws at the point o f the bayonet— a governm ent o f all others the most to be dreaded. In a republic o f such vast extent a s the United-States, the legislature cannot attend to the various concerns and wants o f its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants o f Ihc different districts, and if it could, it is im possible it should have sufficient time to attend to and provide for all the variety o f cases o f this nature, that would be continually arising.

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In so extensive a republic, the great officers o f government would soon becom e above the controul o f the people, and abuse their pow er to the purpose o f aggrandizing them selves, and oppressing them. The trust com­ mitted to the executive offices, in a country o f the extent o f the UnitedS tales. must be various and o f magnitude. The command o f all the troops and navy o f the republic, the appointment o f officers, the pow er o f pardon­ ing offences, the collecting o f all the public revenues, and the pow er o f expending them, with a number o f other pow ers, must be lodged and ex er­ cised in every state, in the hands o f a few . When these arc attended with great honor and emolument, as they alw ays will be in large states, so as greatly to interest men to pursue them, and to be proper ob jects for ambi­ tious and designing men, such men will be e v e r restless in their pursuit after them. T h ey will use the pow er, when they have acquired it, to the purposes o f gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to

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prevent their abuse o f p o w er.11 These are some o f the reasons b y which it appears, that a free republic cannot long subsist over a country o f the great extent o f these states. If then this new constitution is calculated to consolidate the thirteen states into one. a s it evidently is, it ought not to be adopted. Though 1 am o f opinion, that it is a sufficient objection to this government, to reject it. that it creates the whole union into one governm ent, under the form o f a republic, yet if this objection was obviated, there are exceptions to

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Essays it. which are so material and fundamental, that they ought lo determine every man. who is a friend to the liberty and happiness o f mankind, not lo adopt it. I beg the candid and dispassionate attention o f my countrymen while I stale Ihese objections— Ihey are such a s have obtruded them selves upon my mind upon a careful attention to the matter, and such as I sincerely believe are well founded. There are many objections, o f small moment, of which 1 shall take no notice— perfection is not to be expected in any thing that is the production o f man— and if I did not in my conscience believe that this scheme was defective in the fundamental principles— in the foundation upon which a free and equal governm ent must rest— 1 would hold my peace.

Brutus.

II t N o v e m b e r 1787

To the Citizens of the State of New-York. I flatter m yself that my last address established this position, that 10 reduce Ihe Thirteen States into one government, would prove the destruction o f

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your liberties. But lest this iruth should be doubted by som e. 1 will now proceed to consider its merits. Though it should be admitted, that the argum ents] against reducing all the states into one consolidated governm ent, are not sufficient fully to establish this point; yet they w ill, at least, justify this conclusion, that in forming a constitution for such a country. great care should be taken to limit and definite its powers, adjust its parts, and guard against an abuse of authority. H ow far attention has been paid to these objects, shall be the subject o f future enquiry. When a building is lo be erected ph ich is intended lo stand for ages, the foundation should be firmly laid. {The constitution proposed to your acceptance, is designed not fo r yourselves alone, but for generations yet unborn?The principles, therefore, upon which the social compact is fo u n d e ^ u g h t to have been clearly and precisely staled, and the most express and full declaration o f rights to have been made— But on this subject there is almost an entire silence. If w e may collect the sentiments o f the people o f Am erica, from their own most solemn declarations, they hold this truth a s s e lf evident, that all men are by nature free. N o one man. therefore, or any class o f m en. have a right, by the law o f nature, or o f G od . to assume or exercise authority o ver their fellows. The origin o f society then is lo be sought, not in any natural right which one man has to exercise authority o ver another, but in the united

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Brutus consent o f those who associate. The mutual wants o f men. at first dictated the propriety o f form ing societies: and when they were established, protec­ tion and defence pointed out the necessity o f instituting government In a state o f nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoym ents o f one were sacrificed to the view s and designs o f another; thus The weak were a prey to the strong, the simple and unwary were subject to impositions from those w ho were more crafty and designing. In this state o f things, every individual was insecure; common interest therefore directed, that government should be established, in which the force o f the whole community should be col* lected, and under such directions, as to protect and defend every one who composed it. T h e common good, therefore, is the end o f civil government, and common consent, the foundation on which it is established. T o effect this end. it was necessary that a certain portion o f natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion o f natural freedom is necessary to be yielded by individuals, when they submil to governm ent, J shall not now enquire So much, how ­ ever. must be given up. as will be sufficient to enable Those, to whom the administration o f the government is com m itted, to establish law s for the promoling The happiness o f the com m unity, and to carry those law-s into effect. But it is not necessary, for this purpose, that individuals should relinquish all ihcir natural rights. Som e are o f such a nature that they cannot be surrendered. O f this kind are the rights o f conscience, the right o f enjoy­ ing and defending life, etc. Others are not necessary to be resigned, in order to attain the end for which governm ent is instituted, these therefore ought not to be given up. T o surrender them, would counteract the very end of governm ent, to w it. the common go od .14 From these observations it ap­ pears. that in forming a government o r its true principles, the foundation should be laid in the manner 1 before stated, by expressly reserving to the people such o f their essential natural rights, as are not necessary to be parted w ith,15 T h e same reasons which at first induced mankind to associate and institute governm ent, will operate to influence them to observe this precaution. If they had been disposed to conform them selves to the rule o f immutable righteousness, government would not have been requisite. It was because one p an exercised fraud, oppression, and violence on the other, that men cam e together, and agreed that certain rules should be formed, to regulate the conduct o f all. and the power o f the w hole community lodged in the hands o f rulers to enforce an obedience lo them. But rulers have the same propensities a s other men; they are a s likely to use the pow er with which they are vested for private purposes, and to the injury and oppression o f those over whom they are placed, as individuals in a stale o f nature arc to injure and oppress one another. It is therefore a s proper that bounds should be set to their authority, JiT that governm ent should have at firsT been in­ stituted to restrain private injuries.Ie3

Essays This principle, which seem s so evidently founded in the reason and nature

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o f things, is confirmed by universal experience. Those w ho have governed, have been found in all ages ev er active to enlarge their pow ers and abridge the public liberty. This has induced the people in ail countries, where any sense o f freedom remained, to fix barriers against the encroachm ents o f their rulers. The country from which w e have derived our origin, t$ an eminent exam ple o f this. Their magna charta and bill o f rights have long been the boast, as well a s the security, o f that nation. J need say no more. I presume, to an Am erican, than, that this principle is a fundamental one. in all the constitutions o f our own states; there is not one o f them but what is either founded on a declaration or bill o f rights, or has certain express reservation o f rights interwoven in the body o f them. From this it appears, that at a time when the pulse o f liberty beat high and when an appeal was made to the people to form constitutions for the government o f them selves, it was their universal sense, that such declarations should make a part o f their frames o f governm ent. It is therefore the more astonishing, that this grand security, to the rights o f the people, is not lo b e found in this constitu­ tion. It has been said, in answer to this objection, that such declarations] of rights, how ever requisite they might be in the constitutions o f the states, are not necessary m the general constitution, because, "in the former case, every thing which is not reserved is given, but in the latter the reverse o f the proposition prevails, and every thing which is not given is r e se rv e d ."1’ It requires but little attention to discover, that this mode o f reasoning is rather

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specious than solid. The powers, rights, and authority, granted to the gen­ eral government by this constitution, are as com plete, with respect to every object to which they extend, as that o f any slate government— It reaches to every thing which concerns human happiness— L ife , liberty, and property, are under its controul. There is the same reason, therefore, that the exercise o f power, in this case, should be restrained within proper limits, as in that o f the stale governments. T o set this matter in a d ea r light, permit me to instance some o f the articles o f the bills o f right s o f the Individual states, and apply them to the case in question.'® For the security o f life, in criminal prosecutions, the bills o f rights o f most o f the slates have declared, that no man shall be held to answer for a crime uniil he is made fully acquainted with the charge brought against him; he shall not be com pelled to accuse, or furnish evidence against himself— The witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel. That it is essential to the security o f life and liberty, that trial o f facts be in the vicinity where they happen. Are not provisions o f this kind as necessary in the general governm ent, as in that o f a particular state? The powers vested in the new Congress extend in many cases to life; they are authorised to provide for the punishment o f a variety o f capital crim es, and no restraint is laid upon them in ils exercise, save

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Brutus only, that “ the trial o f ail crim es, excep t in cases o f impeachment, shall be by jury, and such trial shall be in the state where the said crim es shall have been com m itted.’ * N o man is secure o f a trial m the county where he is charged to have committed a crim e: he may be brought from Niagara to N ew *York, or carried from K entucky to Richmond for tnal for an offence, supposed to be committed What security is there, that a man shall be furnished with a full and plain description o f the charges against him? That he shall be allow ed to produce all proof he can in his favor? That he shall see the w itnesses against him face to face, or that he shall be fully heard in his ow n defence b y him self or counsel?

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For the security o f liberty it has been declared, “ that excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted— That all warrants, without oath o r affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive These provisions are as necessary under the general government as under that o f 1lie individual states: for the pow er o f the form eris as com plete to the purpose o f requiring bail, imposing fines, inflicting punishments, granting search warrants, and seizing persons, papers, or properly, in certain cases,

*

9 *ith a high hand and an outstretched arm.

* •

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Brutus.

XVI 10 April 1788 When great and extraordinary powers are vested in any man. or body of men. which in their exercise, may operate to the oppression o f the people, if is of high importance that powerful checks should be formed to prevent the abuse of it. Perhaps no restraints are more forcible, than such as arise from re­ sponsibility to some superior power.— Hence it is that the true policy of a republican govern meat is. (0 frame it in such manner, that all persons who are concerned in the government, are made accountable to some superior for their conduct in office.— This responsibility should ultimately rest with the People. To have a government well administered in ail its parts, it is requisite the different departments o f it should be separated and lodged as much as may be in different hands. The legislative power should be in one body, the executive in another, and the judicial in one different from either— But still each of these bodies should be accountable for their con­ duct."2 Hence it is impracticable, perhaps, to maintain a perfect distinction between these several departments— For it is difficult, if not impossible, to

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Brutus

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cal) to account the several officers in government, without in some degree mixing the legislative and judicial. The legislature io a free republic are chosen"5 by the people at stated periods, and their responsibility consists, in their being amenable to the people. When the term, for which they are chosen, shall expire, who will then have opportunity to displace them if they disapprove of their conduct— but it would be improper that the judicial should be elective, because their business requires that they should possess a degree o f law Knowledge, which is acquired only by a regular education, and besides it is fit that they should be placed, in a certain degree in an independent situation, that they may maintain firmness and steadiness in their decisions.' 14 As the people therefore ought not to elect the judges, they cannot be amenable to them immediately, some other mode of amenability must therefore be devised for these, as well as for all other officers which do not spnng from the immediate choice of the people: this is to be effected by making one court subordinate to another, and by giving them cognizance of the behaviour of all officers; but on this plan we at last arrive at some supreme, over whom there is no power to controul but the people them­ selves. This supreme controling power should be in the choice of the people, or else you establish an authority independent, and not amenable at all. which is repugnant to the principles of a free government. Agreeable to these principles I suppose the supreme judicial ought to be liable to be called to account, for any misconduct, by some body of men, who depend upon the people for their places; and so also should all other great officers in (he State, who are nol made amenable to some superior officers. This policy seems in some measure to have been in view of the framers of the new system, and to have given rise to the inslituiion of a court of impeach­ ments— How far this Court will be properly qualified to execute the trust which will be reposed in them, will be the business of a future paper to investigate. To prepare the way to do this, it shall be the business of this, to make some remarks upon the constitution and powers of the Senate, with whom the power of trying impeachments is lodged. The following things may be observed with respect to Ihc constitution of the Senate. 1st. They are to be elected by the legislatures of the States and not by the people, and each State is lo be represented by an equal number. 2d. They are to serve for six years, except that one third of those first chosen are to go out of office at the expiration of two years, one third at the expiration of four years, and one third al the expiration of six years, after which this rotation is to be preserved, but still every member will serve for the term of six years. 3d If vacancies happen by resignation or otherwise, during the recess of the legislature of any State, the executive is authorised lo make temporary appointments until the next meeting of the legislature. 4. No person can be a senalor who has not arrived to Ihe age of thirty

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Essays years, been nine years a citizen of the United States, and who is not at the time he is elected an inhabitant of the State for which he is elected. The apportionment o f members of Senate among the States is not ac­ cording to numbers, or the importance of Ihe States', but is equal This, on the plan of a consolidated government, is unequal and improper; but is proper on the system of confederation— on (his principle 1 approve of it.’15 It is indeed the only feature of any importance in the constitution o f a confederated government. It was obtained after a vigorous struggle of that part of the Convention who were in favor of preserving the state govern­ ments. It is to be regretted, that they were not able to have infused othei principles into the plan, to have secured the government or the respective states, and to have marked with sufficient precision the line between them and the general government. The term for which the senate are to be chosen, is in my judgment too long, and no provision being made for a rotation will, I conceive, be of dangerous consequence. It is difficult to fix the precise period for which the senate should be chosen. Jt is a matter of opinion, and our sentiments on the matter must be formed, by attending to certain principles Some of the duties which are to be performed by the senate, seem evidently to point out the propriety of their term o f service being extended beyond the period o f that of the assem­ bly. Besides as they are designed to represent the aristocracy of the coun­ try. it seems fit they should possess more stability, and so continue a longer period than that branch who represent the democracy. The business of making treaties and some other which it will be proper to commit to the senate, requires that they should have experience, and therefore that they should remain some lime In office to acquire it.— But still it is of equal importance that they should not be so long in office as to be likely to forget the hand that formed them, or be insensible of their interests. Men long in office are very apt to feel themselves independent (and] to form and pursue interests separate from those who appointed them. And this is more likely to be Ihe case with the senate, as Ihey will for the most pari of the time be absent from the state they represent, and associate with such company as will possess very litlle of the feelings o f ihe middling class of people. For it is to be remembered that there is lo be afed era l city , and the inhabitants of it will be the great and the mighty of the earth. For these reasons I would shorten the term of their serv ice to four years. Six years is a long period for a man to be absent from his home, it would have a tendency to wean him from his constituents. A rotation in the senate, would also in my opinion be of great use. It is probable that senators once chosen for a state will, aa the system now stands, continue in office for life The office will be honorable if not lucra­ tive. The persons who occupy it will probably wish to continue in it. and therefore use all their influence and that of their friends to continue in

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Brums

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office.— -Their friends will be numerous and powerful, for they will have it In their power to confer great favors; besides it will before long be considered as disgraceful not 10 be rc-elecicd. li will therefore be considered as a matter o f delicacy to the character of the senator not to return him again.— Every body acquainted with public affairs knows how difficult it is to remove from office a person who is (has?) long been in iL It is seldom done except in cases of gross misconduct, ft is rare that want of competent ability procures it. To prevent this inconvenience 1 conceive it would be wise to determine, that a senator should not be eligible after he had served for the period assigned by the constitution for a certain number of years; perhaps three would be sufficient. A farther benefit would be derived from such an ar­ rangement; it would give opportunity to bring forward a greater number of men to serve their country, and would return those, who had served, to their state, and afford them the advantage of becoming better acquainted with the condition and politics of their constituents. It farther appears to me proper, that the legislatures should retain the right which they now hold under the confederation, of recalling their members It seems an evident dictate of reason, that when a person authorises another to do a piece of business for him. he should retain the power to displace him. when he does not conduct according to his pleasure. This power in the stale legislatures, under con­ federation. has not been exercised to the injury of the government, nor do 1 see any danger o f its being so exercised under the new system. It may operate much to the public benefit. These brief remains are all 1 shall make on the organization of the senate. The powers with which they are invested will require a more minute in­ vestigation. This body will possess a strange mixture of legislative, executive and judicial powers, which in my opinion will in some cases clash with each other. 1. They are one branch of the legislature, and in this respect will possess equal powers in all cases with the house o f representatives; for I consider the clause which gives the house of representatives the right of originating bills for raising a revenue as merely nominal, seeing the senate be"* au­ thorised to propose or concur with amendments. 2. They arc a branch of the executive in the appointment of ambassadors and public ministers, and m the appointment of all other officer*, not other­ wise provided for; whether the forming of treaties, in which they are joined with the president, appertains to the legislative or the executive part of the government, or to neither, is not material. 3. They are part of the judicial, for they form the court of impeachments. It has been a long established maxim, that the legislative, executive and judicial departments in government should be kept distinct. It is said, I know, that this cannot be done. And therefore that this maxim is not just, ot at least that it should only extend to certain leading features in a govem-

190

Essays ment. 1 admit that this distinction cannot be perfectly preserved. In a doe baManced government, it is perhaps absolutely necessary to give the execu­ tive qualified legislative powers, and the legislative or a branch of them judicial powers m the last resort. It may possibly also, in some special cases, be adviseabk lo associate the legislature, or a branch of it, with the execu­ tive, in the exercise of acts o f great national importance. But still the maxim is a good one, and a separation of these powers should be sought as far as is practicable. 1 can scarcely imagine that any o f the advocates of the system will pretend, that it was necessary to accumulate all these powers in the senate. There is a propriety in the senate's possessing legislative powers; this is the principal end which should be held in view in their appointment ! need not here repeat what has so often and ably been advanced on the subject o f a division o f the legislative power into two branches— The arguments in favor of it 1 think conclusive. But I think it equally evident, that a branch of the legislature should not be invested with the power of appointing officers. This power in the senate is very improperly lodged for a number of reasons— These shall be derailed in a future number.117 Brutus.

i . This essay was replied lo by flelatiah Webster in a pamphlet. “ The Weakness of Bmius Exposed,” published in Philadelphia in 1787, Ford. Pamphlets 117-31. I. Cf. Federal Firm er 1. 7.B.9. whose argument Brutus follows in many respects. Jeffrey points lo numerous specific similarities. University o f Cincinnati Law Review 40. no. 4 (1971): 643 ff.. passim, nn. 3. to, 32. 35. 99

Pennsylvania M oving very quickly, the Republican-controlled legislature called for a convention to meet on 20 N ovem ber. While they did not achieve for Penn­ sylvania the honor o f being the first stale to ratify— Delaware having unani­ mously ratified on 7 December— the Pennsylvania convention acceded to the Constitution on 11 December by the substantial margin o f 46 to 23. The Pennsylvania Anti-Federalists remained unreconciled, how ever, and con­ tinued to press their attack on the Constitution, providing much material for the debate in other states. 1. Douglass. Rebels and Demi*rat5 214. Samuel Bannister Harding. “ Pariy Strug­ gles over the Firs; Pennsylvania Constitution.” Annual Report o f the American His­ torical Association for the Year 1894 (.Washington. D.C.. 1895} 37$. See also Harry Marlin Tmkcom. The Republicans and Federalists in Pennsylvania tyt/s-i&ot (Har­ risburg 1950) and David Hawke. In the Midrl o f a Revolution (Philadelphia 1961) For a general background in Pennsylvania sec, in addition to the above. Brunhouse. The Counter Revolution in Pennsylvania. 1776-1790; Paul Leicester Ford. “ The Adoption of the Pennsylvania Constitution o f 1776.“ Political Science Quarterly September 189s. Jensen. Hew Nation; Charles H. Lincoln. The Revolutionary Movement in Pennsylvania. 1760-1776 (Philadelphia 190ill McDonald. We the People; McDonald. £ Ptunbus Unum; Allan Nevins. The American States during and after the Revolution. /775-/789 (New York 1924). 1. Paul ScHam, The Pennsylvania Constitution o f 1776 (Philadelphia 193*1. a. McDonald may exaggerate when he says that in the Pennsylvania ratifying convention it was Wilson who argued on democratic grounds and Smilie and Findley who took the ground of republican principle; but there is enough truth in this view to seriously qualify and complicate the common terms of the arguments about the de­ gree o f "'democracy' in both the Pennsylvania and the U.S. constitutions. See We the People 165. 3. Harding. Annual Report oj the American Historical Assoi iatton 1894 391-

200

The Address and Reasons o f Dissent o f the Minority o f the Convention o f Pennsylvania To Their Constituents PEN NSYLV AN IA PACKET A N D D A IL Y ADVERTISER

18 December 178?

Failing in n s attempt to secure the pages o f the official journal to spread ns view s (a not uncommon practice in faction-tom Pennsylvania) the minority o f the state ratifying convention published its Address and Reasons o f Dis­ sent in the Pennsylvania Packet and Daily Advertiser The Address was frequently reprinted and com m ented on b y both Federalist and Am iFederalist writers 1 The author was probably Samuel Bryan, even though he W3s not a member o f the convention.2 The Address consists o f three parts: (1) a description o f events leading up to and concluding the Pennsylvania ratifying convention (3.1 r . 1-2): (2) a list o f proposed amendments, many o f which found their w ay into the Bill o f Rights adequate representation for Pennsylvania. For all o f these reasons the government will not possess the confidence o f the people and will have to rely on a standing army and a sm elly controlled militia, leading to the suppression o f individual liberty as well as to great expense. I For Ce wind's complaint that the distribution of the Address was hampered by unfriendly postal arrangements, sec Centinel XVIll, 2.7. ifo n 96. See the essays of A Freeman, addressed to (Sc Minority of the Pennsylvania Convention, published m Ihe Pennsylvania Gazette 23 January. 30 January, and 6 February 1788. These were, in lum. replied 10 by [Pennsylvania] Farmer, whose essay is printed below. 3.14. Noah Webster replied in a forceful and interesting essay, published under the pseudonym •'America” in the New York Daily Advertiser 31 December 1787, and

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Pennsylvania reprinted in his Collection of Essays (Boston 1790). Me Master ir>d Stone print some o f the responses, beginning 3t p 483. including Francis Hopkinson’s Federalist para­ ble, **Thc New Roof” (pp 510-16). which appeared in the Pennsylvania Packet 29 December 1787. 2. Samuel Bryan claimed authorship in letters to Jefferson. 27 Febnuiry 1801 and 24 luly 1807. and in a letter to Albert Gallatin. 18 December j 790. Files of Ratification of Constitution project. National Archives. See Centinel 3.7. intro, n 4. th e attribution is strengthened by several striking similarities between passages in the Address o f the Pennsylvania Convention minority, and in the Centinel letters, although o f course one author might, under the circumstances, very well have drawn on another Cf. the following passages o f Centinel and lhe Pennsylvania Convention Minority, re­ spectively: V. 2.7,95: j 11.22 III. 2.7.73; 3.11.26. 1. 1.7.9: 3.11.4*. IV. 2.7.93; 3-II-J6. IX. 2,7.129; 3.11.4-5. 111. 2.7.70; 3.11.8.

3.11.1

It was not until after the termination o f the late glorious contest, which made the people o f the Uni led States, an independent nation, that any defect was discovered in (he present confederation. It was Formed by some o f the ablest patriots in Am erica. It carried us successfully through the war; and the virtue and patriotism o f the people, with their disposition to promote the common cau se, supplied the want o f pow er in Congress

3.11.2

The requisition o f Congress for the five per cent, impost was made before the peace, so early as the first o f February, 1781. but w as prevented taking effect by the refusal o f one state; yet it is probable every state in the union would have agreed to this measure at that period, had it nol been for the extravagant terms in which it w as demanded. The requisition w as new moulded in the y ear 1783. and accompanied with an additional demand o f certain supplementary funds for 25 years. Peace had now taken place, and the United Stales found them selves labouring under a considerable foreign and domestic debt, incurred during the war. T h e requisition o f 17S3 was commensurate with the interest o f the debt, a s it was then calculated: bui it has been more accurately ascertained since that time. The dom estic debt has been found to fall several millions o f dollars short o f the calculation, and it has lately been considerably diminished by large sales o f the western lands. The states have been called on by C ongress annually fo r supplies until the general system o f finance proposed in 1783 should take place.

3 .11.3

It w as at this lime that the want o f an efficient federal government was first complained of. and that the powers vested in Congress were found to be inadequate (o ihe procuring o f the benefits lhat should result from the union. T he impost was granted by most o f the states, but many refused the supple­ mentary funds; the annual requisitions were set at nought by some o f the stales, while others com plied with them by legislative acts, but were tardy in their paym ents, and C ongress found Ihem selves incapable o f com plying with their engagem ents, and supporting the federal governm ent. It was found that our national character w as sinking in (he opinion o f foreign

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Minority of tbe Convention nations. The Congress could make treaties o f com m erce, but could not enforce the observance o f them. W e were suffering from the restrictions o f foreign nations, who had shackled our com m erce, white w e were unable to retaliate: and all now agreed that it would be advantageous to the union to enlarge the powers o f C ongress; that they should be enabled in the amplest manner to regulate com m erce, and to lay and collect duties on the imports throughout the United S lates. With this view a convention w as first pro­ posed by Virginia, and finally recommended by C ongress for the different states to appoint deputies to meet in convention, " f o r the purposes o f re­ vising and amending the present articles o f confederation, so as to make them adequate to the exigencies o f the u n ion." This recommendation the legislatures o f tw elve states complied with so hastily a s not to consult their constituents on the subject; and though the different legislatures had no authority from their constituents for the pu rpo se, th ey probably ap­ prehended the necessity would ju stify the m easure; and none o f them e x ­ tended their ideas at that time further than “ revising and amending the present articles o f confederation. " Pennsylvania by the act appointing dep­ uties expressly confined their pow ers to this object: and though it is prob­ able that some o f the members o f the assembly o f this state had at that lime in contemplation to annihilate the present confederation, as well as the constitution o f Pennsylvania, yet the plan w as not sufficiently matured to communicate it to the public. The majority o f the legislature o f this com m onwealth, were at that time

3.11.4

under ihe influence o f the members from the city o f Philadelphia. T hey agreed that the deputies sent by them to convention should have no com ­ pensation for their services, which determination was calculated to prevent the election o f any member w ho resided at a distance from the city ll w a s in vain for the minority to attempt electing delegates to the convention, who understood the circum stances, and Ihe feelings o f the people, and had a common intercsi with them. T h ey found a disposition in the leaders o f the majority o f the house 10 chuse them selves and some o f their dependants. The minority attempted to prevent this by agreeing to vole fo r som e o f the leading members, who they knew had influence enough to be appointed at any rate, in hopes o f carrying with them some respectable citizens o f Philadelphia, in whose principles and integrity they could have more co n ­ fidence; but even in this they were disappointed, except in one member: the eighth member was added at a subsequent session o f the assem bly * The Continental convention met in the city o f Philadelphia at the time appointed, ll w as com posed o f some men o f excellent characters; o f others who were more remarkable for their ambition and cunning, than their pa­ triotism; and o f some who had been opponents to the independence o f the United States. The delegates from Pennsylvania w ere, six o f them, uniform and decided opponents to the constitution o f this com m onwealth. The con-

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3.11.5

Pennsylvania vcntton sat upwards o f four months. The doors were kept shut, and the members brought under the most solemn engagem ents o f secrecy.* Som e o f those who opposed their going so far beyond their pow ers, retired, hope­ less, from the convention, others had the firmness to refuse signing the plan altogether; and m any w ho did sign it, did it not as a system they wholly approved, but as the best that could be then obtained, and notwithstanding the time spent on this subject, it is agreed on all hands to be a work o f haste 3.11.6

and accommodation. Whilst the gilded chains were forging in the secret conclave, the meaner instruments o f despotism without, were busily em ployed in alarming the fears o f the people with dangers which did not exist, and exciting their hopes o f greater advantages from the expected plan than even the best government on earth could produce.

3 .1 1.7

The proposed plan had not many hours issued forth from the w om b o f suspicious secrecy, until such as were prepared for the purpose, were car­ rying about petitions for people to sign, signifying their approbation o f the system , and requesting the legislature to call a convention. While every measure was taken to intimidate the people against opposing it, the public papers teemed with the most violent threats against those w ho should dare to think for them selves, and tar and fea th ers w ere liberally promised to all those who would not immediately join in supporting the proposed govern­ ment be it what it w ould. Under such circum stances petitions in favour o f calling a convention were signed by great numbers in and about the city, before they had leisure to read and examine the system , many o f whom , now they are better acquainted with it, and have had time to investigate its principles, are heartily opposed to it. The petitions were speedily handed into the legislature.

3. m .8

A ffairs were in this situation when on the 28th o f Septem ber last a resolu­ tion was proposed to the assem bly by a member o f the house who had been also a member o f the federal convention, for calling a state convention, to be elected within ten d ays for the purpose o f exam ining and adopting the pro­ posed constitution o f the United States, though at this time the house had not received it from C ongress. This attempt w as opposed by a minority, who after offering every argument in their pow er to prevent the precipitate measure, without effect, absented them selves from the house a s the only alternative left them, to prevent the m easure taking place previous to their constituents being acquainted with the business— That violence and outrage which had been so often threatened was now practised; som e o f the mem­ bers were seized the next day by a mob collected for the purpose, and forcibly dragged to the house, and there detained b y force whilst the quorum o f the legislature, so form ed, com pleaied their resolution. W e shall dwell no longer on this subject, the people o f Pennsylvania have been already ac•Thc Journals of the conclave are still concealed.

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Minority of tbe Convention quatnted therew ith.1 We would only further observe that every member o f the legislature, previously to taking his seat, by solemn oath or affirmation, declares, ’ that he will not do o r consent to any act or thing w hatever that shall have a tendency to lessen or abridge their rights and privileges, as declared in the constitution o f this sla te.“ And that constitution which they are so solemnly sworn to support cannot legally be altered but by a recom­ mendation o f a council o f censors, who alone arc authorised to propose alterations and amendments, and even these must be published at least six months, fo r the consideration o f the people.1— The proposed system o f government for the United States, if adopted, will alter and may annihilate the constitution o f Pennsylvania; and therefore the legislature had no authority w hatever to recommend the calling a convention for that purpose. This proceeding could not be considered as binding on the people o f this commonwealth. The house w as formed by violence, some o f the members composing it were detained there by force, which alone would have vitiated any proceedings, to which they were otherwise com petent; but had (he legislature been legally form ed, this business w as absolutely without their pow er.4 In this situation o f affairs were the subscribers elected members o f the convention o f Pennsylvania. A convention called by a legislature in direct violation o f their duty, and com posed in part o f members, w ho were com^

3 -i i -9

pelled to attend fo r that purpose, to consider o f a constitution proposed by a convention o f the United States, who were not appointed for the purpose o f framing a new form o f governm ent, but whose powers were expressly c o n ­ fined to altering and amending the present articles o f confederation — Therefore the members o f the continental convention in proposing the plan acted as individuals, and not a s deputies from Pennsylvania.* The assem bly w ho called the state convention acted as individuals, and not as the legisla­ ture o f Pennsylvania; nor could they or the convention chosen on their recommendation have authority to do any act or thing, that can alter or annihilate the constitution o f Pennsylvania (both o f which will be done by the new constitution) nor are their proceedings in our opinion, at all binding on the people. The election for members o f the convention was held at so early a penod and the want o f information was so great, that some o f us did not know o f it until after it was over, and we have reason to believe that great numbers o f the people o f Pennsylvania have not yet had an opportunity o f sufficiently

•The continental convention in direct violation of the 13th article of the confedera­ tion. have declared, “ that the ratification o f nine states shall be sufficient for the establishment of this constitution, between the states so ratifying the same.“ — Thus has the plighted faith o f the slates been sported with1They had solemnly engaged that the confederation now subsisting should be inviolably preserved by each of them, and the onion thereby formed, should be perpetual, unless the same should be altered by mutual consent.

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3- m . io

Pennsylvania examining the proposed constitution.— W e apprehend that no change can take place that w ill affect the interna] governm ent or constitution o f this com m onwealth, unless a majority o f the people should evidence a wish for such a change; but oo exam ining the number o f votes given for members of the present state convention, w e ftnd that o f upwards o f seventy thousand freem en who are intitled to vote in Pennsylvania, the w hole convention has been elected b y about thirteen thousand voters, and though two thirds o f the members o f the convention have thought proper to ratify the proposed

3. r : . i i

constitution, yet those two thirds were elected b y the votes o f only six thousand and eight hundred freemen. In the city o f Philadelphia and some o f the eastern counties, (he ju nto that took the lead in the business agreed to vote for none but such as would solemnly promise to adopt the system in toto. without exercising their judgment. In m any o f the counties the people did not attend the elections as they had not an opportunity o f judging o f the plan. Others did not consider them selves bound by the call o f a set o f men who assem bled at the statehouse in Philadelphia, and assumed the name o f the legislature o f Penn­ sylvania; and some were prevented from voting by the violence o f the party w ho were determined at all events to force down the measure. T o such lengths did the tools o f despotism carry their outrage, that io the night o f the election for members o f convention, in the city o f Philadelphia, several o f the subscribers (being then in the city to transact your business) were grossty abused, ill-treated and insulted while they were quiet in their lodg­ ings, though they did not interfere, nor had any thing to do with the said election, but a s they apprehend, because they were supposed to be adverse to the proposed constitution, and would not tamely surrender those sacred rights, which you had committed to their charge.

3.11.12

The convention met, and the same disposition w as soon manifested in considering the proposed constitution, that had been exhibited in every other stage o f the business. We w ere prohibited by an express vote o f the convention, from taking any question on the separate articles o f the plan, and reduced to tbe necessity o f adopting or rejecting in to io .— 'T is true the majority permitted us to debate on each article, but restrained us from proposing amendm ents.— T h ey also determined not to permit us to enter on the mioutes our reasons o f dissent against any o f the articles, nor even on the final question our reasons o f dissent against (he whole. Thus situated we entered on the examination o f the proposed system o f governm ent, and found it to be such as w e could not adopt, w ithout, as we conceived, surren­ dering up you r dearest rights. W e offered our objections to the convention, and opposed those parts o f the plan, w hich, in our opinion, would be injuri­ ous to you, io the best manner w e were able: and closed our arguments by offering the follow ing propositions to the convention.

3.11.13

! . The right o f conscience shall be held inviolable; and neither the tegis-

206

Minority of the Convention lative, executive nor judicial powers o f the United States shall have author­ ity to alter, abrogate, or infringe any part o f the constitution o f the several states, w hich provide for the preservation o f liberty in matter* o f religion. t . That in controversies respecting property, and in suits between man and man, trial by ju ry shall remain a s heretofore, as w ell in the federal courts, as in those o f the several slates.5 3 That m all capital and criminal prosecutions, a man has a right to demand the cause and nature o f his accusation, as well in the federal courts, as in those o f the several states; to be heard by him self and his counsel; to be confronted with the accusers and w itnesses; to call for evidence in his favor, and a speedy trial by an impartial jury o f his vicinage, without whose unanimous consent, he cannot be found guilty, nor can he be com pelled to give evidence against himself; and that no man be deprived o f his liberty, except by the law o f the land or the judgm ent o f his peers. 4. That excessive bail ought not to be required, nor excessive fines im­ posed, nor cruel nor unusual punishments inflicted. 5. That warrants unsupported by evidence, whereby any officer or mes­ senger may be commanded o r required to search suspected places, or to seize any person or persons, his or their property, not particularly d e ­ scribed. are grievous and oppressive, and shall not be granted either by the magistrates o f the federal government or others. 6. That the people have a right to the freedom o f speech, o f writing and publishing their sentiments, therefore, the freedom o f the press shall not be restrained by any law o f the United States.6 7. That the people have a right to bear arms for the defence o f themselves and their own state, or the United States, or for the purpose o f killing gam e; and no law shall be passed for disarming the people o r any o f them, unless for crimes com m itted, or real danger o f public injury from individuals; and as standing armies in the time o f peace are dangerous to liberty, they ought not to be kept up. and that the military shall be kept under strict subordina­ tion to and be governed by the civil powers. B The inhabitants o f the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature o f the Uniled S tates.7 9. That no law shall be passed to restrain the legislatures o f the several states from enacting laws for imposing taxes, except imposts and duties on goods imported or exported, and that no taxes, except imposts and duties upon goods imported and exported, and postage on letters shall be levied by the authority o f Congress. 10. That the house o f representatives be properly increased in number; that elections shall remain free; that the several slates shall have pow er to

207

Pennsylvania regulate the elections for senators and representatives, without being controuled cither directly o r indirectly by any interference on the part o f the C ongress; and that elections o f representatives be annual. 1 1 . That the pow er o f organizing, arming and disciplining the militia (the manner o f disciplining the militia to b e prescribed b y Congress) remain with the individual states, and that C ongress shall not have authority to call or march any o f the militia out o f their ow n stale, without the consent o f such state, and for such length o f Ume only a s such state shall agree. T hat the sovereignty, freedom and independency o f the several states shall be retained, and every power, jurisdiction and right which i$ not by this constitution expressly delegated to the United S tales in C ongress assem ­ bled. 12. That the legislative, executive, and judicial powers be kept separate: and to this end that a constitutional council be appointed, to advise and assist the president, who shall be responsible fo r the advice they give, hereby the senators would be relieved from almost constant attendance: and also that the judges be made com pletely independent. 13. That no treaty which shall be directly opposed to the existing laws o f the United States in Congress assem bled, shall be valid until such laws shall be repealed, or made conform able to such treaty; neither shall any treaties be valid which are in contradiction to the constitution o f the United States, or the constitutions o f the several stales. ! 4- That the judiciary pow er o f the United States shall be confined to cases affecting am bassadors, other public ministers and consuls: to cases o f admiralty and maritime jurisdiction: to controversies to which the United States shall be a party: to controversies between tw o or more states— between a state and citizens o f different states— between citizens claiming lands under grants o f different states: and between a stale or the citizen thereof and foreign states, and in criminal cases, to such only a s are ex­ pressly enumerated in the constitution, and that the United States in C o n ­

3 .11.14

gress assem bled, shall not have power to enact laws, which shall alter the law s o f descents and distribution o f the effects o f deceased persons, the titles o f lands or goods, or the regulation o f contracts in the individual states. A fter reading these propositions, we declared our willingness, to agree to the plan, provided it w as so amended as to meet these propositions, or something similar to them: and finally m oved the convention to adjourn, to give the people o f Pennsylvania time to consider the subject, and determine for them selves; but these were all rejected, and the final vo te w as taken,

3 .11.15

when our duty to you induced us to vote against the proposed plan, and to decline signing the ratification o f the same. During the discussion we met with m any insults, and some personal abuse; we were not even treated with d ecen cy, during the sitting o f the convention, by the persons in the gallery o f the house, how ever, w e flatter

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Minority of (he Convention ourselves that in contending for the preservation o f those invaluable rights you have thought proper to commit to our charge, w e acted with a spirit becom ing freemen, and being desirous that you might know the principles which actuated our conduct, and being prohibited from inserting our rea­ sons o f dissent on the minutes o f the convention, w e have subjoined them for you r consideration, as to you alone w c are accountable. U remains with you whether you wiO think those inestimable privileges, which you have so ably contended for. should be sacrificed at the shrine o f despotism , or whether you mean to contend fo r them with the same spirit that has so often baffled the attempts o f an aristocratic faction, to rivet the shackles o f slav­ ery on you and your unborn posterity. Our objections are comprised under three general heads o f dissent, viz. We dissent, first, because it is the opinion o f (he most celebrated writers on governm ent, and continued by uniform experience, that a very extensive

3 -* i -16

territory cannot be governed on the principles o f freedom , otherwise than by a confederation o f republics, possessing all the powers o f internal go v­ ernment; but united in the management o f their general, and foreign con­ cerns. If any doubt could have been entertained o f the truth o f the foregoing

3 .11.17

principle, it has been fully rem oved by the concession o f Mr. Wilson, one o f majority on this question: and who was one o f the deputies in the late genera) convention. Injustice to him, we will give his own words; they are as follow s, v iz .1 “ The extent o f country for which the new constitution was required, produced another difficulty in the business o f the federal con ven ­ tion. It is the opinion o f some celebrated writers, that to a small territory, the dem ocratical; to a middling territory (as Montesquieu has termed it) the m onarchal; and to an extensive territory, the despotic form o f government is best adapted. Regarding then the w ide and almost unbounded jurisdiction o f the United S lates, at first view, the hand o f despotism seemed necessary to controul. connect, and protect it; and hence the c h ie f embarrassment rose. For. we know that, altho* ou r constituents would chearfufly submit to the legislative restraints o f a free governm ent, they would spurn at every attempt to shackle them with despotic p o w er.” — And again in another part o f his speech he continues.— “ Is it probable that the dissolution o f the state governm ents, and the establishm ent o f one consolidated empire would be eligible in its nature, and satisfactory to the people in its administration? I think not. a s 1 have given reasons to shew that so extensive a territory could not be governed, connected, and preserved, but by the supremacy o f des­ p otic power. A ll (he exertions o f the most potent em perors o f Rom e were not capable o f keeping that empire together, which in extent was far inferior to the dominion o f A m erica.” ’ W c dissent, secondly, because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, ex ecu ­ tive. and judicial powers o f the several states, and produce from their ruins

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3.11.18

Pennsylvania one consolidated governm ent, which from the nature o f things will be an iron handed despotism , as nothing short o f the supremacy o f despotic sway could connect and govern these United States under one governm ent. 3 -11.19

A s the truth o f this position is o f such decisive importance, it ought to be fully investigated, and if it is founded to be clearly ascertained: for. should it be demonstrated, that the pow ers vested by this constitution in Congress, will have such an effect as necessarily to produce one consolidated govern­ ment. the question then will be reduced to this short issue, viz. whether satiated with the blessings o f liberty: whether repenting o f the folly o f so recently asserting their unalienable rights, against foreign despots at the expence o f so much blood and treasure, and such painful and arduous struggles, the people o f A m en ca are now willing to resign ev ery privilege of freem en, and submit to the dominion o f an absolute government, that will em brace all Am erica in one chain o f despotism ; or whether (hey will with virtuous indignation, spurn at the shackles prepared for them, and confirm their liberties by a conduct becom ing freemen.

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That the new government will not be a confederacy o f stales, as it ought. but one consolidated governm ent, founded upon the destruction o f the sev* eral governm ents o f the stales, w e shall now shew. The powers o f C ongress under the new constitution, are complete and unlimited over the purse and the sword, and are perfectly independent of. and supreme o ver, the state governm ents; w hose intervention in these great points is entirely destroyed. By virtue o f their pow er o f taxation, Congress may command the w hole, or any part o f the property o f the people. They m ay impose what imposts upon com m erce; they may impose what land taxes, poll taxes, excises, duties on all written instruments, and duties on every other article that they may judge proper; in short, every species o f taxation, whether o f an external or internal nature is com prised in section the 8th. o f article the 1st. viz. “ T he C ongress shall have power to lay and collect taxes, duties, im posts, and excises, to pay the debts, and provide for

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the common defence and general welfare o f the United S tates.” A s there is no one article o f taxation reserved to the state governments. the Congress may monopolise ev ery source o f revenue, and thus indirectly dem olish the state governm ents, for without funds they could not exist, the taxes, duties and excises imposed by C ongress may be so high as to render it impracticable to levy further sum s on the same articles, but whether this should be the case or not. if the state governm ents should presume to Impose taxes, duties o r excises, on the same articles with Congress, the latter m ay abrogate and repeal the laws whereby they are imposed, upon the allegation that they interfere with the due collection o f their taxes, dulics or excises, by virtue o f the foH ow ingclause. pail o f section 8th, article 1st. viz. “ T o make ail law s which shall be necessary and proper for carrying into execution the foregoing pow ers, and all other pow ers vested by this con-

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Minority of the Convention stiuition in the government o f the United States, o r in any department or officer th e re o f."10 The Congress might gloss over this conduct by construing every purpose for which the state legislatures now lay taxes, to be for the "g eneral web f a r e " and therefore as o f their ju(ris]diction. And the suprem acy o f the laws o f the United S tales is established by article 6th. vix. “ That this constitution and the laws o f the United States, which shall be made in pursuance thereof, and all treaties made, o r which

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shall be made, under the authority o f the United States, shall be the supreme law o f the land: and the ju d g es in every state shall b e bound thereby; any thing in the constitution or laws o f any state to the contrary notwithstand­ ing. " It has been alledged that the words “ pursuant to the constitution,” are a restriction upon the authority o f C ongress:11 but when it is considered that by other sections they are invested with every efficient pow er o f govern­ ment, and which may be exercised to the absolute destruction o f the state governments, without any violation o f even the forms o f the constitution, this seeming restriction, as well as e v e ry other restriction in it. appears to us to be nugatory and delusive; and only introduced as a blind upon the real nature o f the government- In our opinion, “ pursuant to the constitution.” will be co-eW cnsive with the will and pleasure o f C ongress, which, indeed, will be the only limitation o f their powers. We apprehend that tw o co-ordinate sovereignties would be a solecism in

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politics.12 Thai therefore as there is no line o f distinction drawn between the general, and stale governm ents; as the sphere o f their jurisdiction is un­ defined, it would be contrary to the nature o f things, that both should exist together, one or the other would necessarily triumph in the fullness o f dommion H ow ever the contest could not be o f long continuance, as the state governments are divested o f every means o f defence, and will be obliged by “ the supreme law o f the land” to yield at discretion It has been objected to this total destruction o f the state governm ents, that (he existence o f their legislatures is made essential to the organization

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o f Congress; that they must assem ble for the appointment o f the senators and president general o f the United S ta tes.13 T rue, the stale legislatures m ay be continued for some years, as boards o f appointment, m erely, after they are divested o f ev ery other function, but the framers o f the constitution foreseeing that the people will soon be disgusted with this solemn m ockery o f a government without pow er and usefulness, have made a provision for relieving them from the imposition, in section 4th. o f article 1st. viz. “ The times, places, and manner o f holding elections fo r senators and representa­ tives. shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law make or alter such regulations; except as to the place o f chusing sen ators." A s Congress have the coniroul over the time o f the appointment o f the

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Pennsylvania president general, o f the senators and o f the representatives o f the United States, they may prolong their existence in office, for life, by postponing the lime o f their election and appointment, from period to period, under various pretences, such a s an apprehension o f invasion, the factious disposition of the people, or any other plausible pretence that the occasion may suggest; and having thus obtained life-estates in the governm ent, they may fill up the vacancies them selves, by their controul o v er the mode o f appointment; wiih this exception in regard to the senators, that as the place o f appointment for Ihem. must, by the constitution, be in the particular stale, ihey may depute some body in the respective states, 10 fill up the vacancies in the senate, occasioned by death, until they can venture to assume it them selves. Id this manner, may the only restriction in this clause be evaded. B y virtue o f the foregoing section, when the spirit o f the people shall be gradually broken; when the general governm ent shall be firmly established, and when a numerous standing army shall render opposition vain, the Congress may com pleat the system o f despotism , in renouncing all dependance on the 3 .i t . 26

people, by continuing them selves, and children in the government. The celebrated M ontesquieu, in his Spirit o f L aw s, vol. 1. page 12th. says. ‘ That in a dem ocracy there can be no exercise o f sovereignty, but by the suffrages o f the people, which are their will; now the sovereigns will is the sovereign himself: the laws therefore, which establish the right o f suf­ frage, are fundamental to this governm ent. In fact, it is as important to regulate in a republic in what manner, by whom , and concerning what suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to g o v e rn ." 14 The time, mode and p la ce o f the election o f representatives, senators and president general o f the United States, ought not to be under the controul o f C ongress, but fundamentally

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ascertained and established. The new constitution, consistently with the plan o f consolidation, con ­ tains no reservation o f the rights and privileges o f the state governments, which was made in the confederation o f the y ear 1778. b y article the 2d. viz. "T h at each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation ex­ pressly delegated to the United States in C ongress assem bled." The legislative pow er vested in Congress by the foregoing recited sec­ tions. is so unlimited in its nature; may be so com prehensive and boundless [in] its exercise, that this alone would be am ply sufficient to annihilate the state governm ents, and swallow them up in the grand vortex o f general empire.

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Thejud icial pow ers vested in Congress arc also so various and extensive. that by legal ingenuity they may be extended to ev ery case, and thus absorb the state judiciaries, and when we consider the decisive influence that a general judiciary would have over the civil polity o f the several states, we do

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Minority of the Convention not hesitate to pronounce that this pow er, unaided b y the legislative, would effect a consolidation o f the states under one government. The pow ers o f a court o f equity, vested by this constitution, in the tribu-

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nals o f Congress; pow ers which do not exist in Pennsylvania, unless so far as they can be incorporated with jury' trial, would, in this state, greatly contribute to this event. The n chan d wealthy suitors would eagerly lay hold o f the infinite ma2es, perplexities and delays, which a court o f chancery, with the appellate pow ers o f the supreme court in fact as well a s law would furnish him with, and thus the poor man being plunged in the bottomless pit o f legal discussion, would drop his demand in despair. In short, consolidation pervades the whole constitution. It begins with an annunciation that such was the intention. T he main pillars o f the fabric correspond with it. and the concluding paragraph is a confirmation o f it. The

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preamble begins with the words. " W e the people o f the United S ta te s." which is the style o f a com pact betw een individuals entering into a state o f society, and not that o f a confederation o f states.15 The other features o f consolidation, we have before noticed. Thus we have fully established the position, that the pow ers vested by this constitution in C ongress, will effect a consolidation o f the states under one government, which even the advocates o f this constitution admit, could not be done without the sacrifice o f all liberty. 3. We dissent. Thirdly, Because if it were practicable to govern so exten-

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sive a territory as these United Stales includes, on the plan o f a consolidated governm ent, consistent with the principles o f liberty and the happiness o f the people, yet the construction o f this constitution is not calculated to attain the object, for independent o f the nature o f the case, it would o f itself, necessarily, produce a despotism , and that not by the usual gradations, but with the celerity (hat has hitherto only attended revolutions effected b y the sword. To establish the truth o f this position, a cursory investigation o f the prin­ ciples and form o f this constitution will suffice. The first consideration that this review suggests, is the omtsskm o f a bill o f r ig h t s , ascertaining and fundamentally establishing those unalienable and personal rights o f men. without the full. free, and secure enjoym ent o f which there can be no liberty, and o v er w hich it is not necessary for a good government to have the controul. The principal o f which are the rights of conscience, personal liberty by the clear and unequivocal establishment of the writ o f habeas corpus, ju ry trial in criminal and civil cases, by an impartial ju ry o f the vicinage or county, with the com m on-law proceedings, for the safely o f the accused in criminal prosecutions; and the liberty o f the press, that scourge o f tyrants, and the grand bulwark o f every other liberty and privilege; the stipulations heretofore made in favor o f them in the state constitutions, are entirely superceded by this constitution.

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The legislature o f a free country should be so form ed as to have a com pe­ tent Knowledge o f its constituents, and eojoy their confidence. T o produce these essential requisites, the representation ought to be fair, equal* and sufficiently numerous, to possess the same interests, feelings, opinions, and view s, which the people them selves would possess, were they all assem­ bled; and so numerous as to prevent bribery and undue influence, and so responsible to the people, by Sequen t and fair elections, as to prevent their neglecting or sacrificing the view s and interests o f their constituents, to their own pursuits.

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W e will now bring the legislature under this constitution to the test o f the foregoing principles, which will dem onstrate, that it is deficient in every essential quality o f a just and safe representation. T he house o f representatives is to consist o f 65 members; that is one for about every 50.000 inhabitants, to be chosen every tw o years Thirty-three members will form a quorum for doing business; and 17 o f these, being the m ajority, determ ine the sense o f the house T he senate, the other constituent branch o f the legislature* consists o f 26 members being m o from each slate, appointed by their legislatures every six years— fourteen senators maKe a quorum ; the majority o f whom, tight, determines the sense o f that body: except in judging on impeachments, or in making treaties, or in expelling a member, when two thirds o f the senators present, must concur. The president is to have the controul o ver the enacting o f law s, so far as to make the concurrence o f two thirds o f the representatives and senators present necessary, i f he should object to the laws.

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Thus it appears that the liberties, happiness, interests* and great concents o f the whole United S lates, may be dependent upon the integrity, virtue, wisdom, and knowledge o f 25 or 26 men— How inadequate and unsafe a representation! Inadequate, because the sense and view s o f 3 or 4 millions o f people diffused o ver so extensive a territory com prising such various clim ates, products, habits, interests, and opinions, cannot be collected in so small a body; and besides, it is not a fair and equal representation o f the people even in proportion to its number, for the smallest state has as much weight in the senate as the largest, and from the smallness o f the number to b e chosen for both branches o f the legislature; and from the mode o f elec­ tion and appointment. which is under the controul o f C ongress; and from the nature o f the thing, men o f the most elevated rank in life, will alone be chosen. The other orders in the society, such a s farm ers, traders, and m e­ chanics. w ho all ought to have a com petent number o f their best informed

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men in the legislature, will be totally unrepresented.'e T h e representation is unsafe, because in the exercise o f such great powers and trusts, it is so exposed to corruption and undue influence, by the gift o f the numerous places o f honor and emoluments at the disposal o f the execu-

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Minority of the Convention live: by the a n s and address o f the great and designing; and by direct bribery. The representation is m oreover inadequate and unsafe, because o f the long terms for which it is appointed, and the mode o f its appointment, by which Congress may not only controul the choice o f the people, but may so manage as to divest the people o f this fundamental right, and becom e selfelected. The number o f members in (he house o f representatives may be encreased to one for every 30,000 inhabitants. But when we consider, that this cannot

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be done without the consent o f the senate, w ho from their share in the legislative, in the executive, and judicial departments, and permanency of appointment, will be the great efficient body in this governm ent, and whose weight and predominancy would be abridged by an increase o f the repre­ sentatives. we are persuaded that this is a circum stance that cannot be expected. On the contrary, the number o f representatives will probably be continued at 65. although the population o f the country may swell to treble what it now is; unless a revolution should effect a ch an ge.” W e have before noticed the judicial power a s it would effect a consolida­ tion o f the stales into one governm ent; w e will now exam ine it. as it would affect the liberties and welfare o f the people, supposing such a government were practicable and proper. The judicial pow er, under the proposed constitution, is founded on the well-known principles o f the civil law, by which the judge determines both on law and fact, and appeals are allowed from the inferior tribunals to the superior, upon the whole question; so that fa c ts as well as /aw. would be re-examined, and even new facts brought forward in the court o f appeals; and to use the words o f a very eminent C ivilian— " T h e cause is many times another thing before the court o f appeals, than what it w as at the time o f the first se n te n c e ."1* That this mode o f proceeding is the one which must be adopted under this constitution, is evident from the following circum stances:— 1sc That the trial by ju ry, which is (he grand characteristic o f the com m on law , is secured by the constitution, only in criminal cases.— 2d. That the appeal from both law and fa ct is expressly established, which is utterly inconsistent with the principles o f the common law. and trials by ju ry. The only mode in which an appeal from law and fact can be established, is. by adopting the principles and practice or the civil law , unless the United States should be drawn into the absurdity o f calling and swearing juries, merely for the purpose o f con ­ tradicting their verdicts, which would render juries contem ptible and worse chan useless.— 3d. That the courts to be established would decide on all cases o f taw and equity, which is a well known characteristic o f the civil law. and these courts would have conusance not on ly o f the laws o f the United States and o f ireaties. and o f case* affecting ambassadors, but o f all

*15

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cases o f admiralty and maritime jurisdiction, which Iasi are matters be­ longing exclusively to the civil law. in every nation in Christendom. Not to enlarge upon the loss o f the invaluable right of trial by an unbiassed jury, so dear to every friend of liberty, the monstrous expence mid in­ conveniences o f the mode o f proceedings to be adopted, are such as will prove intolerable to the people of this country. The lengthy proceedings of the civil law courts in the chancery o f England, and in the courts of Scotland and France, are such that few men o f moderate fortune can endure the expence of; the poor man must therefore submit to the wealthy. Length of purse will too often prevail against right and justice. For instance, we are lold by the learned judge B lacksiont. that a question only on the properly of an ox. of the value o f three guineas, originating under the civil law pro­ ceedings in Scotland, after many interlocutory' orders and sentences below, was carried at length from the court o f sessions, the highest court in that part of Great Britain, by way of appeal to the house of lords, where the question o f lawr and fact was finally determined. He adds, that no pique or spirit could in the court of king's bench or common pleas at Westminster, have given continuance to such a cause for a tenth part o f the time, nor have cost a twentieth part o f the expence. Yet the costs in the courts of king's bench and common picas in England, are infinitely greater than those which the people o f this country have ever experienced. We abhor the idea of losing the iranscendant privilege o f trial by jury, with The loss o f which, it is remarked by the same learned author, that in Sweden, the liberties o f the commons were extinguished by an aristocratic senate: and that trial by jury and the liberty of the people went out together. 59 At the same time we regret the intolerable delay, the enormous expellees and infinite vexation to which the people o f this country will be exposed from the voluminous proceedings o f the courts o f civil law, and especially from the appellate jurisdiction, by means o f which a man may be drawn from the utmost boundaries o f this extensive country to the seat o f the supreme court o f the nation to contend, perhaps with a wealthy and powerful adversary. The consequence o f this establishment will be an absolute confirmation of ihe power of aristocratical influence in the courts o f justice: for the common people will not be able to contend or struggle against it. Trial by jury in criminal cases may also be excluded by declaring that the libeller for instance shall be liable to an action o f debt for a specified sum; thus evading the common law prosecution by indictment and trial by jury. And the common course of proceeding against a ship for breach o f revenue laws by information (which will be classed among civil causes) will at the civil law be within the resort o f a court, where no jury intervenes. Besides, the benefit o f jury trial, in cases o f a criminal nature, which cannot be evaded, will be rendered of little value, by calling the accused to answer far from home; there being no provision that the trial be by a jury o f the neighbourhood or country Thus an inhabitant o f Pittsburgh, on a charge of

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Minority of the Convention crime committed on the banks o f the Ohio, may be obliged to defend himself at the side o f the Delaware, and so vice versa. T o conclude this head: we observe that the judges o f the courts o f Congress would not be independent, as they are not debarred from holding other offices, during the pleasure of the president and senate, and as they may derive their support in part from fees, alterable by the legislature. The next consideration that the constitution presents, is the undue and dangerous mixture o f the powers o f government: the same body possessing legislative, executive, and judicial powers The senate is a constituent branch o f the legislature, it has judicial power in judging on impeachments, and in this case unites in some measure the characters o f judge and party, as all the principal officers art appointed by the president-general, with the concurrence of the senate and therefore they deriv* their offices in part from the senate This may biass the judgments o f the senators and tend to screen great delinquents from punishment. And (he senate has. moreover, various and great executive powers, viz. in concurrence with the president-general, ihey form treaties with foreign nations, that may controul and abrogate the constitutions and laws o f the several states. Indeed, there is no power, pnvilege or liberty of the stale governments, or of the people, but what may be affected by virtue o f this power. For all treaties, made by them, are to be the ' ’ supreme law o f the land, any thing in the constitution or laws o f any stale, to the contrary notwithstanding.” And this great power may be exercised by (he president and 10 senators (being two-thirds of 14. which is a quorum of that body). What an induce­ ment would this offer to the ministers o f foreign powers to compass by bribery such concessions as could not otherwise be obtained It is the un­ varied usage o f all free slates, whenever treaties interfere with the positive laws o f the land, to make the intervention o f the legislature necessary to give them operation. This became necessary, and was afforded by the parliament o f Great-Britain. In consequence o f the late commercial treaty between that kingdom and France— A s the senate judges on impeachments, who is to try the members o f the senate for the abuse o f this power! And none o f the great appointments to office can be made without the consent or the senate. Such various, extensive, and important powers combined In one body o f men. are inconsistent with all freedom, the celebrated Montesquieu tells us. that “ when the legislative and executive powers are united in the same person, or in the same body o f magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” "A gain, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty o f the subject wrould be exposed to arbitrary controul: for the judge would then be legislator Were it joined to the executive power, the judge might behave with all the violence o f an oppressor. There would be an

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end o f every thing, were the same man. or the same body o f the nobles, or of the people, to exercise those three powers; that o f enacting laws; That of executing the public resolutions; and that o f judging the crimes or dif­ ferences of individuals. ” 10 The president general is dangerously connected with the senate; his coin­ cidence with the views o f the ruling junto in that body, is made essential to his weight and importance in the government, which will destroy all in­ dependency and purity in the executive department, and having the power o f pardoning without the concurrence o f a council, he may skreen from punishment the most treasonable attempts that may be made on the liberties o f the people, when instigated by his coadjutors in the senate. Instead o f this dangerous and improper mixture o f the executive with the legislative and judicial, the supreme executive powers ought to have been placed in the president, with a small independent council, made personally responsible for every appointment to office or other act. by having their opinions re­ corded; and that without the concurrence o f the majority of the quorum of this council, the president should not be capable o f taking any step. We have before considered internal taxation, as it would effect tlie de­ struction o f the state governments, and produce one consolidated govern­ ment. We will now consider that subject as it affects the personal concerns o f the people. The power o f direct taxation applies to every individual, as congress, under this government, is expressly vested with the authority of laying a capitation or poll tax upon every person to any amount. This is a tax that, however oppressive in its nature, and unequal in its operation, is certain as to its produce and simple in its collection; it cannot be evaded like the objects o f imposts or excise, and will be paid, because alJ that a man hath will he give for his head. This lax is so congenial to the nature of despotism, that it has ever been a favorite under such governments. Some o f those who were in the late general convention from this state have long laboured to introduce a poll-tax among us. The power o f direct taxation will further apply 10 every individual, as congress may tax land, cattle, trades, occupations, etc in any amount, and every object of internal taxation is o f that nature, that however oppressive, the people will have but this alternative, except to pay the tax. or let their property be taken, for all resistance will be in vain. The standing army and select militia would enforce the collection. For the moderate exercise of this power, there is no controul left in the state governments, whose intervention is destroyed. No relief, or redress of grievances can be extended, as heretofore by them. There is not even a declaration o f r ig h ts to which the people may appeal for the vindication of their wrongs in the court of justice. They must therefore, implicitly obey the most arbitrary laws, as the w orn o f them will be pursuant to the principles and form o f the constitution, and that strongest of ail checks upon the

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Minority of tbc Convention conduct o f administration, responsibility to the people, will not exist in this government. The permanency o f the appointments o f senators and repre­ sentatives, and the controul the congress have over their election, will place them independent of the sentiments and resentment o f the people, and the administration having a greater interest in the government than in the com munity. there will be no consideration to restrain them from oppression and tyranny. !n the government o f this state, under the old confederation, the members o f the legislature are taken from among the people, and their interests and welfare are so inseparably connected with those o f their con­ stituents. that they can derive no advantage from oppressive laws and taxes, for they would suffer in common with their fellow citizens; would partici­ pate in the burthens they impose on the community, as they must return to the common level, after a short penod; and notwithstanding every ex(er)tion of influence, every means of corruption, a necessary rotation excludes them from permanency in the legislature. This large state is to have but ten members in that Congress which is to have the liberty, properly and dearest concerns of every individual in this vast country at absolute command and even these ten persons, who are to be our only guardians; who are to supercede the legislature o f Pennsylvania, will not be o f the choice o f the people, nor amenable to them. From the mode of their election and appointment they will consist o f the lordly and high-minded; of men who will have no congenial feelings with the people, but a perfect indifference for. and contempt o f them; they will consist of those harpies o f power, that prey upon the very vitals; that riot on the miseries of ihe community. But we will suppose, although in all probability it may never be realized in fact, that our deputies in Congress have the welfare of their constituents at heart, and will exen themselves in their behalf, what security could even this afford; what relief could they extend to their oppressed constituents'? To attain this, the majority o f the deputies o f the twelve other states in Congress must be alike well disposed, must alike forego the sweets o f power, and relinquish the pursuits o f ambition, which from the nature o f things is not to be expected. If the people part with a responsible representation in Ihe legislature, founded upon fair, certain and frequent elections, they have nothing left they can call their own. Miserable is the lot o f that people whose every concern depends on the w i l l and p l e a s u r e of their rulers. Our soldiers will become Janissaries, and our officers o f government Bashaws; in short, the system of despotism will soon be compleated. From the foregoing investigation, it appears that the Congress under this conc* on will not possess the confidence of the people, which is an tqvjisite in a good government; for unless the laws command the md respect of the great body of the people, so as to induce them ’em , when called on by the civil magistrate, they must be he aid o f a numerous standing army, which would be in-

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Pennsylvania consistent with ev ery idee o f liberty ; for the sam e force that may be em ­ ployed to com pel obedience to good taw s, might and probably would be used to wrest from the people their constitutional liberties. The framers o f this constitution appear to have been aware o f this great deficiency; to have been sensible that no dependence could be placed on the people for their support: but on the contrary, that the government must be executed by force. T h ey have therefore made a provision for this purpose in a permanent standing arm y , and a militia that

may be subjected to as strict discipline

and government. 3 n .S i

A standing arm y in the hands o f a government placed so independent o f the people, may be made a fatal instrument to overturn the public liberties; it may be em ployed to enforce the collection o f the most oppressive taxes, and to c a n y into execution the most arbitrary m easures. An am bitious man w ho may have the arm y at his devotion, may step up into the throne, and seize upon absolute power. The absolute unqualified command that Congress have o v er the militia

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may be made instrumental to the destruction o f all liberty, both public and private; whether o f a personal, civil o r religious nature. First, the personal liberty o f ev ery man probably from sixteen to sixty years o f age. may be destroyed by the pow er Congress have in organizing and governing o f the militia. A s militia they may be subjected to fines to any amount. levied in a military manner; they may be subjected to corporal punishments o f the most disgraceful and humiliating kind, and to death itself, by the sentence o f a court martial: T o (his our young men will be more immediately subjected, as a select militia, com posed o f them, will best answer the purposes o f government.

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Secon dly, The rights o f conscience may be violated, as there is no exem ption o f those persons w ho are conscientiously scrupulous o f bearing arms.** These com pose a respectable proportion o f the community in the state. This is the more remarkable, because even when the distresses o f the late war. and the evident disaffection o f many citizens o f that description, inflamed our passions, and when ev ery person, w ho w as obliged to risque his own life, must have been exasperated against such a s on any account kept back from the common danger, yet even then, when outrage and vio­ lence might have been expected, the rights o f conscience w ere held sacred. A t this momentous crisis, the fram ers o f our state constitution made the most express and decided declaration and stipulations in favou r o f the rights o f conscience; but now when no necessity exists, those dearest rights o f men are lefl insecure.

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Thirdly. The absolute command o f C ongress o ver the militia may be destructive o f public liberty: for under the guidance o f an arbitrary govern­ ment. they may be made the unwilling instruments o f tyranny. T h e militia o f Pennsylvania may be marched to N ew England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing their liberty an.*1

220

Minority of the Convention independency; but in so doing, although the magnanimity o f their minds will be extinguished, yet ihe meaner passions o f resentment and revenge will be increased, and these in turn will be the ready and obedient instruments o f despotism to enslave the others; and that with an irritated vengeance. Thus may the militia be made the instruments o f crushing the last efforts o f expiring liberty, o f riveting the chains o f despotism on their fellow citizens, and on one another. T h is power can be exercised not only without violating the constitution, but in strict conform ity w ith it: it is calculated for this express purpose, and will doubtless be executed accordingly. A s this government will not enjoy the confidence o f the people, but be executed by force, it will be a very expensive and burthensome government. The standing army must be numerous, and a s a fun her support, it w ill be the

>1155

policy o f this government to multiply officers in ev ery department: judges, collectors, tax-gatherers, excisem en and the whole host o f revenue officers will swarm o v er Ihe land, devouring the hard earnings o f the industrious. L ike the locusts o f old. impoverishing and desolating all before them. W e have not noticed the smaller, nor many o f the considerable blem ishes, but have confined our objections to the great and essential defects; the main pillars o f the constitution; which w e have shewn to be inconsistent with the liberty and happiness o f the people, a s its establishment will annihilate the state governm ents, and produce one consolidated governm ent that will eventually and speedily issue in the suprem acy o f despotism. In this investigation, w e have not confined our view s to the interests or welfare o f this state, in preference to the others. W e have overlooked all local circumstances— we have considered this subject on the broad scale of the general good; w e have asserted the cause o f the present and future ages; the cause o f liberty and mankind. John Ludwig,

Nathaniel Breading. John Smilie Richard Baird Adam Orth

Abraham Lincoln John Bishop Joseph Heisler Joseph Powel

John A . Hanna John WhitehiU

James Martin William Findley John Baird James Edgar William Todd.

John Harris Robert White hill John Reynolds Jonathan Hoge N icholas L utz

The yeas and nays upon the final vo te were as follow s, viz. YEAS. George Latimer Benjamin Rush

James Wilson Thom as M 'K ea n

John Hunn G eorge Gray

Hilary Baker

William M ’ Pherson

Samuel Ashmead

22X

3 .11.5 6

Pennsylvania Enoch Edwards

Sebastian G raff

Henry W ynkoop John Barclay

John Hubley Jasper Yates

Thom as Y ardley Abraham Stout

Henry Slagle T hom as Cam pbell

Thom as Bull Anthony W ayne

Thom as Hartley David Grier John Black Benjamin Pedan John A m d l

William Gibbous Richard Downing Thom as Cheyney John Hannum

Stephen Balliott

William Wilson John Boyd Thom as Scott John Nevilf John Allison Jonathan Roberts John Richards F. A . Muhlenberg Jam es Morris Tim othy Pickering Benjamin Elliot

Joseph Horsefield David Deshler

Stephen Cham bers Robert Coleman

4b

John Whitehall

N AYS. John Bishop

John Harris John Reynolds Robert WhitehiJJ

Joseph Heister James Martin Joseph Pow ell

Jonathan Hoge

William Findley John Baud

N icholas L utz John Ludwig Abraham Lincoln

William Todd James Marshall

James Edgar Nathaniel Breading John Smilie Richard Baird William Brown Adam Orth John Andre Hannah 23

Philadelphia, D ec. 12. t 7&7 1. The eighth member was Benjamin Franklin, who had not been chosen at the first election because o f doubt about his willingness to serve. See the reply by some of the majority to the "Address o f the Minority of the Assembly.” McMaster and Stone 79-83. 2. McMaster and Stone 63-71; see Pennsylvania House Minority above 3,2.3. 3. Constitution of Pennsylvania, 1776. sec. 47: Thorpe. Federal and Slate Constimtiotu V. 3091-92. See "Minutes of the Council o f Censors. 1783-1784," Pennsylvania Archives 3d series. X (1896). 783 ff. 4. This is presumably the argument referred to by ESibJius when he claims that the enemies of the proposed Constitution question "(hat fundamental principle o f re­ publican government, which admits the right o f the people to alter or abolish ihe established constitution whenever they find it inconsistent with their happiness. . . Thr Federalist no. 78. 527. Note however that the Minority o f the Pennsylvania Convention does not make the argument Publius attributes to it and that Publius himself is here cautioning against ill-considered change 3. This proposal is criticized by Publius in The Federalist no. 83. 563-68. 6. See the penetrating discussion by America (Noah Webster) o f the difficulties of defining and applying a guarantee o f freedom of Lheprew. The New York Daily Advertiser 31 December 1787. reprinted in Webster's Collet lion o f Essays (1790). 7- America gleefully shows how irrelevant this proposal is in (ste America, where every man is lord of this own land, and how much it derives from the "feudal tyranny" o f Europe. Ibid

122

Minority of the Convention ft. M c M a s t e r a n d S t o n e 2 2 0 . T h i s i s W i l s o n ' s s p e e c h a t t h e P e n n s y l v a n i a r a t i f y i n g c o n v e n tio n , g iv e n o n 24 N o v e m b e r 178 7

9. McMaster and Stone 225. Exactly the same portions o f the speech are quoted by Centinel V. 2.7.94. 1 0 . C f . The Federalist o n t a x a t i o n , e s p e c i a l l y n o s . 3 2 (to d 3 3 . T h e q u e s t i o n o f c o n c u r r e n t ta x a tio n w a s o f c o u r s e v e r y w id e ly d is c u s s e d

S e e M e M a s te r an d S to n e

260 ( W h h e h i U l , 2 6 8 - 6 9 ( S m i l i e ) ; f o r o t n e r c i t a t i o n s s e e F e d e r a l F a r m e r I I I . 2 . 8 . 3 9 n .

*9

n . Wilson in Pennsylvania Convention. McMaster and Stone 308; see also Ford. Essays 45-46 (Cassius), and The Federalist no. 33. 207. On the Anti-Fcdcral side see Centinel V. 2,7.97, and Federal Farmer IV. 2.8.49; the latter, in criticizing the ab­ sence of this language from the treaty-making power, seems to imply that it does restrict the authority of Congress12. C f the argument following and Centinel V. 2.7.99. 13. This argument was made frequently, but the reference here is doubtless to James Wilson in his influential speecn of 6 October and in the Pennsylvania conven­ tion: see McMaster and Stone 147. 264: for other citations see Centinel II. 2.7.36 n. 16. For an argument similar to the one here sec Republican Federalist 4 *1-23.26. The deeper Anti-Federal reply is not that Congress will usurp the state's elective roles but that participation of that kind is not sufficient to maintain the states os truly significant parts of the federal republic. See Federal Farmer X, 2.8.132 n. 84. T4 The Spirit o f Laws I I . c h . 2 . T h e s a m e c o m p r e s s e d v e r s i o n o f M o n t e s q u i e u 's S t a t e m e n t is u s e d b y C e n t i n e l ( 111.

2 . 7 -7 J)

1 5 . A F r e e m a n r e p lie d th a t " t h o " t h e c o n v e n t io n p r o p o s e th a t it s h o u ld b e th e a c t o f t h e p e o p l e , y e t it is in t h e i r c a p a c i t i e s a s c i t i z e n s o f the several members o f our confederacy— f o r t h e y a r e e x p r e s s l y d e c l a r e d t o b e t h e p e o p l e o f the United States— t o w h i c h i d e a t h e e x p r e s s i o n i s strictly c o n f i n e d , a n d t h e general t e r m o f America, w h i c h is c o n s t a n t l y u s e d in s p e a k i n g o f u s as a nation, is c a r e f u l l y o m i t t e d : a p o i n t e d v i e w w a s e v i d e n t l y h a d t o our existing union." Pennsylvania Gaiette 1 3 J a n u a r y 1 7 8 8 . Cf. H e n r y ' s d e n u n c i a t i o n o f t h e l a n g u a g e o r t h e p r e a m b l e . 5 . 1 6 . 1 . a n d th e d is c u s s io n

in

th e

N o r th C a r o lin a

r a tify in g c o n v e n tio n

E llio t I V .

i$

- i 6 . and

M c M a s t e r a n d S t o n e 2 5 6 - 5 7 ( W h iie h iU J .

16. Cf. The federalist nos, 35-36: see Federal Farmer II. 2.8.15 n «l 17. See Publius1 ingenious, and in its implications profound, contention that the balance of interest will be such ihai representation will be Increased. The Federalist 00. 58. 392-95. For other Federalist discussions of this question see Federal Farmer X. 2.8.137 «• 88. 18. The source o f this quotation has not been found. See above. Democratic Federalist 3-5-6 n. 6 t9. Commentaries 111. 380-81. 1 do not find the discussion o f Scottish proceedings 2 0 . M o n t e s q u i e u , The Spirit o f Laws X I , c h . 6 2 1 . S e c C e n tin e l

111.

2 .7 7 6 n . 3 9 .

123

Massachusetts: Introduction

A s winter wore on, the focu s o f debate moved northward. B y January 1788 five stales had raid ed the Constitution— D elaware, Pennsylvania, N ew Jer­ sey, G eorgia, and Connecticut— nil with com parative case and in four cases unanimously or nearly s o .’ But among these only Pennsylvania w as a major state, and there the opposition w as unreconciled to defeat. The M as­ sachusetts convention w as to meet on 14 January; and an unfavorable d eci­ sion there would strengthen the opponents o f the Constitution in the remain­ ing stales, while giving encouragement to the adamant Pennsylvania AmiFederalists. The contest over ratification in M assachusetts w as preceded by a decade o f factional contention, leading to civil disturbances and culminating in the famous S hays Rebellion.2 The rebellion centered in western Massachusetts, where the economic depression follow ing the dislocation o f the war was most severe, where hard currency w as scarce, and where the courts and lawyers were a target o f popular resentment. Opposition to the Constitution was centered in this western pan o f the slate, but there w as a distinct lack o f leadership. Few o f the eastern Anti-Federalists, who provided essays and pamphlets read all over the country, were elected to the ratifying convention, where the Anti-Federalists, while strong in numbers, had no spokesmen able to contend with the Federalists.* To a striking extent the Anti-Federalist delegates in democratic M assachusetts were preoccupied with a ralher un­ differentiated fear o f abuse o f pow er and trickery from the propertied and educated classes. When the ratifying convention met. there w as. from all accounts, a major­ ity opposed to ratification; yet after close to a month o f debate a sufficient number o f delegates changed their minds to give the Federalists a small majority. The Federalists, proceeding cautiously, succeeded in securing clause-by-clause consideration o f the Constitution, fearing (and apparently with good reason} that an early vote would go against them. In this they were aided by Samuel Adam s, who. although generally thought to be unfriendly to the Constitution, threw his considerable weight on the side o f full deliberation and. in one o f his few speeches at the convention, supported clause-by-clause consideration. John H ancock, governor o f M assachusetts and president o f the convention, also provided crucial support. Popular, vain, and extrem ely sensitive to currents o f opinion, H ancock was prevented by a genuine but

*25

Massachusetts manageable illness from occupying the chair until the issues and the lines o f division had begun to com e into focu s. When he did appear, Hancock pro­ posed a group o f amendments to the Constitution, which Samuel Adams endorsed. The statem ents o f both men w ere, probably deliberately, some­ what ambiguous about whether the amendments were to be a condition o f ratification o r merely recom m endatory. A s debate continued, sentiment for ratification increased, with the Federalists supporting recommendatory amendments; and neither H ancock nor Adam s pressed for conditional ratification. W hatever their m otives (a much-canvassed question). Han­ c o c k ’s and Adam s' actions were o f the utmost importance in secunng ratification in the crucial state o f M assachusetts and in introducing recom ­ mendatory amendments. This proved to be the com prom ise used to secure ratification in other states, tempering the opposition o f the Anti-Federalists while maintaining the integrity o f the Constitution. On 6 February 1788 the Constitution w as adopted by the Massachusetts convention by the narrow' margin o f 187 to r68, and the recommendatory amendments were agreed upon Several Anti-Federalists who had voted against the Constitution rose Ui express their acceptance o f the majority determination.4 In marked contrast to events in Pennsylvania, opposition largely ceased in M assachusetts once the Constitution w as adopted. J. S e e Joh n A . M u n ro e.

Federalist Delaware. t77$-t&t$

( N e w B r u n s w ic k . N .J ..

1 9 5 4 ) ; R i c h a r d P . M c C o ^ -m ic k . Experiment in independence: New Jersey in the Critical

Period. 1781-1789 ["New B r u n s w i c k , N . J . . 1 9 5 0 ) ; W i l l i a m W . A b b o t . ’ T h e S t r u c t u r e o f P o l i t i c s in G e o r g i a , 1 7 8 2 - 1 7 8 9 , ' ' Wiliam and Man Quarterly J a n u a r y 1 9 5 7 : K e n n e t h C o l e m a n , The American Revolution in Georgia. {763-1789 ( A t h e n s . G a . . 1 9 5 8 I ; B e r ­ n ard

C-

S i e i n e r . ' ‘ C o n n e c t i c u t 's

R a tific a tio n

ceedings o f the American Antiquarian Society 2

F o r b ack g ro u n d

in

M a s sa c h u s e tts , s e e

o f th e n .s .

25

R ic h a r d

F e d e r a l C o n s t i t u t i o n , '*

P ro -

(19 15 ): 70 -12 7 . B.

M o m s , " I n s u r r e c tio n

in

\n America in Crisis, e d . D a n i e l A a r o n ( N e w Y o r k 1 9 5 2 ) ; G e o r g e R . The History o f the Insurrection o f Massachusetts ( B o s t o n 1 8 1 0 ) ; S a m u e l E l i o t

M a s s a c h u s e t ts ." M in o t.

M o r is o n . " S t r u g g l e o v e r th e A d o p t io n o f th e C o n s t it u t io n o f M a s s a c h u s e t t s . 1 7 8 0 ," M a s s a c h u s e t t s H i s t o r i c a l S o c i e t y , Proceedings 50 ( 1 9 1 7 ) : 3 5 3 - 4 * 1 ; A n s o n E l y M o r s e , The Federalist Party in Massachusetts to Ihe Year t&oo ( P r i n c e t o n 1 9 0 9 ); D a v i d H F i s c h e r , " T h e M y t h o f t h e E s s e x J u n t o . " William and Mary Quarterly A p r i l 1 9 6 4 . 3 . T h u s Centinel r e g r e t s l h a t in M a s s a c h u s e t t s " t h e c a u s e o f l i b e r t y h a s b e e n s o w e a k l y , a lt h o u g h z e a lo u s ly a d v o c a t e d — th a t it s c h a m p io n s w e r e s o tittle illu m in a t e d ."

The Contest over the Ratification o f the Federal Constitution tn the State o f Massachusetts ( N e w Y o r k C e n tin e l X V . 2 .7 .1 6 6 . S e t g e n e r a lly S a m u e l B a n n is te r H a r d in g . 1 8 9 6 ). 4

T h e N e w H a m p s h i r e c o n v e n t i o n m e t o n 1 3 F e b r u a r y ; o p p o s i t i o n w a s s i m i l a r in

c h a r a c t e r a n d s t r e n g t h t o l h a t in M a s s a c h u s e t t s , a n d t h e F e d e r a l i s t , f e a r i n g d e f e a t , s u c c e e d e d i n g a i n i n g a p o s t p o n e m e n t o f t h e c o n v e n t i o n u n t i l t h e m id d le o f J u n e J o s e p h B . W a lk e r .

Birth of the Federal Constitution ( B o s l o n

226

18 8 8 ).

Letters o f Agrippa, I-X I MASSACHUSETTS GAZETTE

N o v e m b e r 178 7-J an u ary 1788

The important Agrippa letters appear to have been written by James Winthrop.' The son o f mathematics professor John Winthrop o f Harvard. James became librarian o f Harvard in 1770 following his graduation from that institution. H e became register o f probate in M iddlesex in 1787 and Judge o f Common Pleas in 1791. While Harvard librarian, he fought in the Revolu­ tion, was postm aster o f Cam bridge, and served as a volunteer against the Shays insurgents. Winthrop was tw ice passed o ver for his father's pro­ fessorship in mathematics because, it is reported, his “ intemperate manner and . . . eccentricities militated against him ."* His chiefliterary effort was a study and interpretation o f biblical prophecies. The letters o f Agrippa are vigorously and w ell argued, but were not much reprinted, probably because o f their preoccupation with the interests o f Massachusetts. That preoccupation deserves the reader’s close attention, how ever, because it reflects the principled selfishness that is the ground o f A gnp pa's argument (V II. 4.6.26-29). The letters fall into tw o distinct sets, the first (J -X l. 4.6.1-47) addressed to the people o f M assachusetts, the second (X 1J-X V I. 4.6.48-79) to the M assachusetts Convention. T his fact explains much o f the repetition and some o f the variation in Agrippa's arguments. In both sets there are highly theoretical arguments as well as specific criticism s o f the proposed Constitution and suggestions for action; but the differences in form and focus are due partly to the different circum ­ stances and audiences to which the papers were addressed. Each o f the sets o f letters has its ow n plan or outline, although Agrippa frequently allow s the argument to stray, and indeed some o f the most inter­ esting and fruitful observations are made in the course o f diversions or secondary arguments. The overall theme concerns the connection between freedom, com m erce, and local institutions. The ch ief dangers o f the pro­ posed Constitution are, first, the destruction o f the states, which are neces­ sary because o f the heterogeneity to be found in the United States, and, second, the stifling o f com m erce by excessive regulation. The first set o f papers is particularly interesting on the question o f the small republic (IV . 4.6. r4 - i 7) and on com m erce as the bond o f Union (VIII,

Massachusetts 4.6 30-33). Agrippa reveals here, in a particularly open w ay. a tension that is quite comm on in Anti-Federalist thought between the claims o f civic virtue and o f com m erce as the bond o f civil society. The second set o f letters contains an extended and significant discussion o f the Bill o f Rights. A brief outline follows. Pan I— T o the People l. Introduction and general sketch: Freedom is necessary to industry; great objective should be to encourage the spirit o f com m erce (I. 4 6 .1 -6 ) 11. Advantages o f present system ; efficiency o f states for internal regula­ tion (II. III. 4.6.7-13). HI. Disadvantages o f the consolidation implicit in the proposed Constitu­ tion (IV -V I I, 4.6.14-29). A . Impossibility o f governing an extensive em pire on republican principles excep t a s a confederated republic because o f the heterogeneity o f the parts. Vet the new system is a consolidation (IV . 4 6.14-17)B. P roof that the new system is a consolidation (V -V I . 4.6.18-25). C. Harm o f this consolidation for M assachusetts (V II. 4.6.26-29). IV. The true bond o f Union is com m erce (V III-IX . 4.6.30-37). A. We are now a federal republic under that moderate political au­ thority that is necessary to the peaceful operation o f commercial intercourse (V III, 4.6.30-33). B. Criticism o f deficiencies o f Articles o f Confederation taken up: (1) regarding taxation (V III, 4.6.30-33) (2) regarding regulation o f intercourse with foreign nations (IX , 4-6 34- 37). V . Summary' and suggested amendments to A rticles o f Confederation (X , 4 .6 .3 8 - 4 4 )

(V I. P .S .— attack on Federalist Party [X I. 4.6.45-47)). Pan II— T o the M assachusetts Convention This second set o f papers consists o f a long paper devoted to the subject o f the Federal Republic, and retracing much o f (he ground o f (he first set o f papers (but som etim es with interesting elaborations), together with a oew discussion o f the Bill o f Rights, and a set o f proposed amendments to the Constitution. I. Federal Republic is the form o f governm ent best suited to answer both internal and external needs. T his is the system w e oow possess; it can be improved by modest amendments; it w ould be destroyed by the proposed Constitution (XU. 4.6.48-59). II. Bill o f Rights and Constitution (X H I-X V , 4.6.60-71). III. Proposed Am endm ents to the Constitution (X V I, 4.6.72-79).

228

Agrippa i.

" I t is u i d W in t h r o p w r it e s u n d e r A g r ip p a . T h e s e p i e c e s g a in h im n o c r e d i t . " C .

G o r e U» R . K i n g , 2 3 D e c e m b e r 1 7 8 7 .

Essays

King, Life and Correspondence

I, 2 6 5 . F o r d ,

4 0 , 5 1 —5 ? : C h a r l e s W a r r e n , " E t h r i d g e G e n y . J a m e s W a r r e n , M e r c y W a r r e n ,

a n d t h e R a t i f i c a t i o n o f t h e F e d e r a l C o n s t i t u t i o n in M a s s a c h u s e t t s , ” H is to r ic a l S o c ie ty

Proceedings

64 (19 3 0 -3 2 ): 14 7 .

n. 6 : H a r d in g .

M a ssa ch u se tts

Contest over

Ratification 21. n.x. F o n t ' s r e p r i n t i n g o f t h e s e l e t t e r s ( E s s a y s 5 3 - 1 ia > c o n t a i n s e r r o r s o f n u m b e r i n g a n d d a t i n g a n d a n o m i s s i o n , w h i c h a r e i d e n t i f i e d in t h e n o t e s h e r e . A s F o r d p o i n t s o u t ( p . 5 1 ) . A g r ip p a ’ s le t t e r s c a lf e d f o r t h a n u m b e r o f r e p lie s ; b u t n o n e o f th e s e s e r io u s ly to o k u p h is a r g u m e n ts . in F o r d ,

Essays

Set Massachusetts Gazette

3 0 N o v e m b e r { 7 8 7 ( C a s s iu s , r e p r in te d

2 2 -2 3 ), 21 D e c e m b e r 3 7 8 7 ( " C h a r ie s J a m e s F o x ” ); 28 D e c e m b e r

1 7 8 ? . 4 J a n u a r y 1 7 8 8 ( " K e m p i s O ' F l a n a g a n ” ) . 23 J a n u a r y 1 7 8 8 ( J a n i u s ) . 2

C liffo r d

K . S h ip ta n . " J a m e s W in ln r o p ."

Dictionary 0/ American Biography Memoirs o f

X X . 4 0 7 . A s e v i d e n c e o f W m t h r o p ' s e c c e n t r i c i t y S h i p t o n r e l a t e s t h a t in t h e

th e A m e r i c a n A c a d e m y o f A r t s a n d S c i e n c e s h e p u b lis h e d " f a l l a c i o u s s o lu t i o n s '' o f c e r t a i n p r o b l e m s in m a t h e m a t i c s , “ t o t h e g r e a t m o r t i f i c a t i o n o f t h e o t h e r m e m b e r s . "

I

23 Novem ber [787

To ihe People. Many inconvenient:les and difficulties in (he new plan o f government have been mentioned by different writers on that subject. M r G erry has given the publtck his objections against it, w iih a manly freedom .' The seceding

4.6.1

members from the Pennsylvania Assem bly also published (heirs.3 Various anonymous writers Have mentioned reasons o f great w eight. Am ong ihe many objections have been staled the unlimited right o f taxation— a stand­ ing army— an inadequate representation o f the people— a right to destroy the constitution o f the separate states, and all the barriers chat have been set up in defence o f liberty— the right to try causes betw een private persons in many cases without a ju r y ; without trying in the vicinity o f either party; and without any limitation o f the value which is to be tried T o none o f these or any other objections has any answer been given, but such as have acknow l­ edged the truth o f the objection while they insulted the objector This con ­ duct has much the appearance o f trying to force a general sentiment upon the people. The idea o f promoting the happiness o f the people by opposing all their habits o f business, and by subverting (he laws to which they are habituated, appears to me to be at least a mistaken proceeding, If to this we add the limitations o f trade, restraints on its freedom , and the alteration o f its

4.6.2

course, and transfer o f ihe market, all under the pretence o f regulation for fed era l purposes, w c shall not find any additional reason to be pleased with the plan. It is now conceded on all sides that the laws relating to civil cau ses were never better executed than at present. It is confessed by a warm federalist in answer to mr. G erry's sensible letter, that the courts are so arranged at

229

4-6.3

Massachusetts

4.6.4

present that no inconvenience is found, and that if the new plan takes place great difficulties may arise.5 With this confession before him. can any rea­ sonable man doubt whether he shall exchange a system, found by experi­ ence to be convenient, for one that is in many respects inconvenient, and dangerous? The expense of the new plan is terrifying, if there was no other objection. But they are multiplied. Let us consider that o f the representalion. There is to be one representative for every thirty thousand people. Boston would nearly send one, but with regard to another there is hardly a county in the state which would have one. The representatives are to be chosen for two years. In this space, when it is considered that their residence is from two hundred to five [hundred?] miles from their constituents, it is difficult to suppose that they will retain any great affection for the welfare o f the people. They will have an army to support them, and may bid defiance to the clamours o f their subjects. Should the people cry aloud the representative may avail himself o f the right to alter the time o f election and postpone it for another year. In truth, the question before the people is. whether they will have a hm ited government or un absolute one?

4.6.5

4-6.6

It is a fact justified by the experience o f all mankind from the earliest antiquity down to (he present lime, that freedom is necessary to industry. We accordingly find that in absolute governments, the people, be the cli­ mate what il may, are [ini general lazy, cowardly, turbulent, and vicious to an extreme On the other hand, in free countries are found in general, activity, industry, arts, courage, generosity, and all the manly virtues. Can there be any doubt which to choose? He that hesitates must be base indeed. A favourite objection against a free government is drawn from the ir­ regularities o f the Greek and Roman republicks. But it is to be considered that war was the employment which they considered as most becoming freemen. Agriculture, arts, and most domestick employment were commit­ ted chiefly to slaves. But Carthage, the great commercial republick of antiq­ uity. though resembling Rome in the form o f its government, and her rival for power, retained her freedom longer than Rome, and was never disturbed by sedition during the long period o f her duration.4 This is a striking proof that the fault Df the Greek and Roman republicks was not owing to the form o f their government, and that the spirit o f commerce is the great bond of union among citizens.5 This furnishes employment for their activity, supplies their mutual wants, defends the rights o f property, and producing reciprocal dependencies, renders the whole system harmonious and eneige tick. Our great object therefore ought 10 be to encourage this spirit. If we examine the present state o f the world we shall find that most o f the business is done in the freest states, and that industry decreases in propor­ tion to the rigour o f government. Agrippa.

230

II 27 N o vem b er 1787

To the People of Massachusetts. In the Gazette o f the 23d instant. I ascertained from the state of other countries and the experience of mankind, that free countries are most friendly ;o commerce and to the rights o f property. This produces greater internal tranquillity. For every man. finding sufficient employment for his active powers in the way o f trade, agriculture and manufactures, feels no disposition to quarrel with his neighbour, nor with the government which protects him, and of which he is a constituent part.6 O f the truth o f these positions we have abundant evidence in the history of our own country. Soon after the settlement o f Massachusetts, and us formation into a com­ monwealth. in the earlier part o f the last century, there was a sedition at Hingham and Weymouth. The govemour passing by at that time with his guard, seized some o f the mutineers and imprisoned them This was com­ plained of as a violation of their rights, and the govemour lost his election the next year, but the year afterwards was restored and continued to be re-elected for several years. The government does not appear to have been disturbed again till the revocation o f the charter in 1686. being a period of about half a century.’ Connecticut set out originally on the same principles, and has continued uniformly to exercise the powers o f government to this lime. During the last year, we had decisive evidences of the vigour of this kind of government.1 In Connecticut, the treason was restrained while it existed only in the form of conspiracy. In Vermont, the conspirators assembled in arms, but were suppressed by the exertions o f the militia, under the direc­ tion o f their sheriffs. Jn New-Hampshire, the attack was made on the legis­ lature. but Ihc insurrection was in a very few hours suppressed, and has never been renewed. In Massachusetts, the danger was. by delay, suffered to increase. One judicial court after another was stopped, and even the capital trembled. Still, however, when the supreme executive gave the sig­ nal, a force of many thousands o f active, resolute men. took the field, during the severities o f winter, and every difficulty vanished before them. Since that time we have been continually coalescing. The people have applied with diligence to their several occupations, and the whole country wears one face of improvement. Agriculture has been improved, manufactures multiplied, and trade prodigiously enlarged. These are the advantages of freedom in a growing country. While our resources have been thus rapidly increasing, the courts have set in every part of the commonwealth, without any guard to defend them; have tried causes o f every kind, whether civil or criminal, and (he sheriffs, have in no case been interrupted in the execution o f their office. In those cases indeed, where the government was more

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Massachusetts particularly interested, m ercy has been extended, but in civil causes, and in the case o f moral offences, the law has been punctually executed- Damage done to individuals, during the tumults, has been repaired, by judgment o f

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the courts o f law . and the award has been can ied into effect. This is the present state o f affairs, when w e are ashed 10 relinquish that freedom which produces such happy effects. T h e attempt has been made 10 deprive us o f such a beneficial system , and to substitute a rigid one in its stead, by criminally alarming our f e r n , exalt­ ing certain characters on one side, and vtllifying (hem on the other.* 1 wish to say nothing o f the merits or demerits o f individuals; such arguments alw ays d o hurl. But assuredly m y countrym en cannot fail to consider and determine w ho are the most w orthy o f confidence in a business o f this magnitude.— W hether they will trust persons, who have, from their cradles, been incapable o f comprehending any other principles o f governm ent, than (hose o f absolute power, and w ho have, in this very affair, tried to deprive them o f their constitutional liberty, by a ptliful trick- T hey cannot avoid prefering those who have uniformly exerted them selves to establish a lim­ ited governm ent, and to secure to individuals all the liberty that is consistent with ju stice, between man and man, and whose efforts, by the smiles o f Providence, have hitherto been crow ned with the most splendid success. A fter the treatment w e have received, w e have a right to be jealous, and to guard our present constitution with the strictest care. It is the right o f the people to ju d ge, and (hey will do wisely to give an explicit instruction to their delegates in the proposed convention, not to agree 10 any proposition that w ill, in any degree, militate with that happy system o f government under which Heaven has placed them. Agrippa. N ovem ber 24. 1787.

in 30 N o ve m b er 1787

To the People. 4.6. jo

It has been proved, from the clearest evidence, in tw o former papers, that a free governm ent. I mean one in which the pow er frequently returns to the body o f the people, is in principle the most stable and efficient o f any kind; that such a government affords the most ready and effectual remedy for all injuries done to persons and the rights o f property Jt is true w e have had a lender act. But what government has not some law in favour o f debtors? The difficulty consists in finding one that is not more unfriendly to the creditors than ours. I am far from justifying such things. On the contrary I

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Agnppa believe that it is universally true, that acts made to favour a part o f the community are wrong in principle. All that is now intended is. to remark that we are not worse than other people in that respect which we most condemn. Probably the inquiry will be made, whence the complaints arise This is easily answered. Let any man look round his own neighbourhood, and see if the people are not. with a very few exceptions, peaceable and attached to the government; if the country had ever within their knowledge more appearance o f industry, improvement and tranquillity; if there was ever more o f the produce o f all kinds together for the market; if their stock does not rapidly increase; if there was ever a more ready vent for their surplus: and if the average o f prices is noi about as high as was usual in a plentiful year before the war. These circumstances all denote a general prosperity. Some classes o f citizens indeed sufFer greatly. Two descriptions I at present recollect. The publick creditors form the first of these classes and they ought to. and will be provided for. Let us for a moment consider their situation and prospects. The embarrassments consequent upon a war. and the usual reduction o f prices immediately after a war. necessarily oc­ casioned a want of punctuality in publick payments. Still however the publick debt has been very considerably reduced, not by the dirty and delusive scheme of depreciation, but the nominal sum Applications are continually making for purchases in our eastern and western lands Great exertions are making for clearing o ff the arrears o f outstanding taxes, so that the certificates for interest on the stare debt have considerably increased in value. This is a certain indication o f returning credit. Congress this year disposed of a laige tract of their lands towards paying the principal o f their debt. Pennsylvania has discharged the w-holc o f their part o f the continental debt. New-York has nearly cleared its state debt, and has located a large part o f their new lands towards paying the continental demands. Other states have made considerable payments. Every day from these consid­ erations the publick ability and inclination to satisfy their creditors in­ creases. The exertions of last winter were as much to support publick as private credit. The prospect therefore o f the publick creditors is brightening under the present system. If (he new system should take effect without amendments, which however is hardly probable, the increase o f expense will be death to the hopes o f all creditors both o f the continental and o f the state. With respect however to our publick delays of payment we have the precedent o f the best established countries in Europe The other class of citizens to which I alluded was the ship-carpenters. All agree that their business is dull; but as nobody objects against a system of commercial regulations for the whole continent, that business may be re­ lieved without subverting all the ancient foundations and laws which have the respect of the people. It is a very serious question whether giving to Congress the unlimited right to regulate trade would not injure them still further. It is evidently for the interest o f the state to encourage our own

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Massachusetts trade as much as possible. But in a very large empire* as the whole states consolidated must be. there will always be a desire of the government to increase the trade of the capital, and to weaken the extremes. We should in that case be one o f the extremes, and should feel all the impoverishment incident to that situation. Besides, a jealousy o f our enterprising spirit, would always be an inducement to cramp our exertions. We must then be impoverished or we must rebel The alternative is dreadful. At present this stale is one of the most respectable and one of the most influential in the union. If we alone should object to receiving the system without amendments, there is no doubt but it would be amended. But the case is not quite so bad. New-York appears to have no disposition even to call a convention. If they should neglect, are we to lend our assistance to compel them by arms, and thus to kindle a civil war without any provoca­ tion on their pan. Virginia has put off their convention till May, and appears to have no disposition to receive the new plan without amendments. Penn­ sylvania does not seem to be disposed to receive it as it is The same objections arc made in all the slates, that the civil government which they have adopted and which secures their rights will be subvened. All the defenders of this system undertake to prove that the rights of the states and o f the citizens are kept safe. The opposers of it agree that they will receive the least burdensome system which shall defend those rights. Both parlies therefore found their arguments on the idea that these rights ought to be held sacred. With Ihis disposition is it not in every man's mind better to recommit it to a new convention, or to Congress, which is a regular convention for the purpose, and to instruct our delegates to confine the system to the general purposes o f the union, than to endeavour to force it through in its present form, and with so many opposers as it must have in every stale on the continent. The case is not o f such pressing necessity as some have represented. Europe is engaged and we are tranquil. Never therefore was an happier time for deliberation. The supporters of the mea­ sure are by no means afraid of insurrections taking place, bui they are afraid that the present government will prove superiour to their assaults Agrippa

IV 3 D ecem ber 1787

To the People. Having considered some o f the principal advantages o f the happy form o f government under which it is our peculiar good fortune to live, we find by

Agrippa experience, that it is the best calculated of any form hitherto invented, to secure to us the rights o f our persons and of our property, and that the genera! circumstances o f the people shew an advanced state of improve­ ment never before known. We have found the shock given by the war in a great measure obi iterated. and the publick debt contracted at that time lobe considerably reduced tn the nominal sum. The Congress lands are fully adequate to the redemption o f the principal o f their debt, and are selling and populating very fast. The lands o f this state, at the west. are. at the moder­ ate price o f eighteen pence an acre, worth near half a million pounds in our money. They ought, therefore, to be sold as quick as possible. An applica­ tion was made lately for a large tract at that price, and continual applications are made for other lands in the eastern pari of the state. Our resources are daily augmenting. We find. then, that after the experience of near two centuries our separate governments are in full vigour. They discover, for all the purposes o f inter­ nal regulation, every symptom o f strength, and none o f decay. The new system is. therefore, for such purposes, useless and burdensome. Let us now consider how far it is practicable consistent with the happi­ ness of (he people and their freedom It is the opinion o f the ablest writers on the subject, that no extensive empire can be governed upon republican principles, and (hat such a government will degenerate to a despotism, unless it be made up of a confederacy o f smaller states, each having the full powers of internal regulation. 10 This is precisely the principle which has hitherto preserved our freedom. No instance can be found of any free gov­ ernment of considerable extent which has been supported upon any other plan.^Large and consolidated empires may indeed dazzle the eyes o f a distant spectator with their splendour, but if examined more nearly are always found to be full of misery^The reason is obvious jln jargc slates the same principles o f legislation will not apply to all the pansTThe inhabitants of warmer climates are more dissolute in their m aiu icd .an d less industri­ ous, man uTcolderlountries. A degree'of s e v e r ity ^ therefore, necessary wil^one which would cramp the spirit o f the other]" /c accordingly find that the very great empires have aT w ayslw n despotic! They have indeed tried to remedy the inconveniences to which the people were exposed by local regulations; but these contrivances have never answered the end,H i* laws not being made by the people, who felt the inconveniences, did not suit their circumstances, it is under such tyranny that the Spanish provinces languish, and such would be our misfortune and degradation, if we should submit to have the concerns o f the whole empire managed by one legislatureVjTo promote the happiness o f the people it is necessary that there should be local laws; and it is necessary that those laws should be made by the representatives of those who are immediately subject to the want of them. By endeavouring to suit both extremes, both are injured. is Impossible far yne code of laws to suit Georgia and Massachusetts?^

*3 $

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Massachusetts They must, therefore, legislate for themselves. Yet there is, [ believe, not one point o f legislation that is not surrendered in the proposed plan. Ques­ tions o f every kind respecting property are determinable in a continental court, and so are aU kinds o f criminal causes. The continental legislature has. therefore, a right to make rules in ail c a s ts by which their judicial courts shall proceed and decide causes. No rights arc reserved to the citi­ zens. The laws o f Congress arc in all cases to be the supreme law o f the land, and paramount to the constitutions o f the individual states The Con­ gress may institute what modes of trial they please, and no plea drawn From the constitution o f any state can avail. This new system is. therefore, a consolidation o f all ihe states into one large mass, however diverse the parts may be o f which it is to be composed- The idea o f an uncompounded republick. on an average, one thousand miles in length, and eight hundred in breadth, and containing six millions o f white inhabitants all reduced to the same standard o f morals, or habits, and o f laws, is in itself an absurdity, and contrary 10 the whole experience o f mankind. The attempt made by GreatBritain to introduce such a system, struck us with horrour. and when it was proposed by some theorist that wc should be represented in parliament. 1-1 we uniformly declared that one legislature could not represent so many different interests for the purposes o f legislation and taxation. This was Ihe leading principle o f the revolution, and makes an essential article in our creed All that part, therefore, o f the new system, which relates to the interna) government o f the slates, ought at once to be rejected Agrippa.

V 1 1 December 1787

To the People. 4 6. i d

In the course o f inquiry it has appeared, that for Ihe purposes o f internal regulation and dom estick tranquillity, our small and separate governments arc not only admirably suited in theory, but have been remarkably success­ ful in practice. It is also found, that the direct tendency o f (he proposed system , is to consolidate the w hole empire into on e mass, and. like tbe tyrant's bed. to reduce all to one standard. Though this idea has been staled in different parts o f the continent, and is the most important trail 0/ this draft, the reasoning ought to be extensively understood. I therefore hope to be indulged in a particular statement o f it.

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Causes o f all kinds, between citizens o f different stales, are to be tried before a continental court. This court is not bound to try it according to the

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Agrippa local laws where the controversies happen; for in that case il may a s well be tried in a state court. T h e rule which is to govern the new courts, must, therefore, be made by the court itself, or by its em ployers, the Congress. If b y (he former, the legislative and judicial departments will be blended; and if by the C ongress, though these departments will be kept separate, still the pow er o f legislation departs from the state in all those cases. T h e Congress, therefore, have the right to make rules for trying ail kinds o f questions relating to property between citizens o f different states. The sixth article o f the new constitution provides, that the continental laws shall be the su­ preme law o f the land, and that all judges in the separate states shall be bound thereby, any thing in the constitution or laws o f any state to the contrary notwithstanding. A ll the state officers are also bound by oath to support this constitution. These provisions cannot be understood otherwise than as binding the state judges and other officers, to execu te the continental laws in their own proper departments within the state For all questions, other than those between citizens o f the same state, are at once put within the jurisdiction o f the continental courts. A s no authority remains to the state judges, but to decide questions between citizens o f the same state, and those judges are to be bound by the laws o f C ongress, it d ea rly follow s, that all questions between citizens o f ihe same stale are to be decided by the general laws and not by the local ones. Authority is also given to the continental courts, to try all causes between a state and its own citizen s.,J A question o f property between these parties rarely occurs. But if such questions were more frequent than they are. the proper process is not to sue the state before an higher authority; but to apply to the supreme authority o f the slate, by w ay o f petition. This is the univer­ sal practice o f all stales, and any other m ode o f redress destroys the sovereignty o f the stale over its own subjects. The only case o f (he kind in which the state would probably be sued, would be upon the stale notes. The endless confusion that would arise from making the estates o f individuals answ erable, must be obvious to every one. There is another sense in which the clause relating to causes between the state and individuals is to be understood, and it is more probable than the other, a s it will be eternal in its duration, and increasing in its extent. This is the w hole branch o f the law relating to criminal prosecutions. In all such cases the slate is plaintiff, and the person accused is defendant. The pro­ cess. therefore, will be. for the attorney-general o f the state to com m ence his suit before a continental court. Considering the state as a party, the cause must be tried in another, and all the expense o f the transporting witnesses incurred. The individual is to take lus trial among strangers, friendless and unsupported, without its being known whether he is habitu­ ally a good or a bad man: and consequently with one essential circum stance wanting by which to determine w hether the action w as jicrformed mali­ ciously or accidentally. All these inconveniences are avoided by the present

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Massachusetts important restriction, that the cause shall be tried by a ju ry o f the vicinity, and tried in the county where the offence w ascom m ited . But by the pro­ posed derangement, 1 can call it by no softer name, a man must be ruined to prove his innocence. T his is far from being a forced construction o f the proposed form . The w ords appear to me not intelligible, upon the idea that it is to be a system o f governm ent, unless the construction now given, both for civil and criminal processes, be admitted. I do not say that it is intended that all these changes should take place within one year, but they probably will in the course o f a half a dozen years, if this system is adopted. In the mean time w e shall be subject to all the horrors o f a divided sovereignty, not knowing whether to obey the Congress or the state. We shall find it im­ possible to please tw o masters. In such a state frequent broils will ensue. Advantage will be taken o f a popular commotion, and even the venerable forms o f the state be done aw ay, while the new system will be enforced in its utmost rigour by an arm y. I am the more apprehensive o f a standing arm y, on account o f a clause in the new constitution which em powers Congress to keep one at all times: but this constitution is evidently such that it cannot stand any considerable time without an arm y. Upon this principle one is very wisely provided. O u r present government know s o f no such thing. Agnppa.

VI 14 December 1787

To the People. 4.6.22

T o prevent any m istakes, or misapprehensions o f the argument, slated in my last paper, to prove that the proposed constitution is an actual con­ solidation o f the separate states into one extensive com m onwealth, the reader is desired to ob serve, that in the course o f the argument, the new plan is considered as an intirc system . It is not dependent on any other book for an explanation, and contains no references to any other b ook. All the d e­ fences o f it. therefore, so far as they are drawn from the state constitutions, or from m axim s o f the com m on law, are foreign to the purpose. It is only by

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com paring the different parts o f it together, that the meaning o f the whole is to be understood. For instance— We find in it. that there is to be a legislative assem bly, with authority to constitute courts for the trial o f all kinds o f civil causes, between citizens o f different states. The right to appoint such courts necessarily involves in it the right o f defining their pow ers, and determining the rules b y which their judgment shall be regulated: and the grant o f the former o f those rights is

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Agnppa nugatory without the latter. It is vain to tell us. that a maxim o f common law requires contracts to be determined b y the law existing where the contract was made: for it is also a maxim, that the legislature has a right to alter (he common law. Such a pow er form s an essential part o f legislation. Here, then a declaration o f rights is o f inestimable value. Jt contains those principles which the government never can invade without an open violation o f the compact between them and the citizen s.14 Such a declaration ought to have come to the new constitution in favour o f the legislative rights o f the several states, by which their sovereignly o ver their own citizens within the stale should be secured. Without such an express declaration the states are an­ nihilated in reality upon receiving this constitution— the forms will be pre­ served only during the pleasure o f Congress. The idea o f consolidation is further kept up in the right given to regulate

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trad e.'5 Though this power under certain limitations would be a proper one for ihe department o f Congress; it is in this system carried much too far. and much farther than is necessary. This is. without exception, the most com­ mercial state upon the continent. Our extensive coasts, cold clim ate, small estates, and equality o f rights, with a variety o f subordinate and concurring circumstances, place us in this respect at the head o f the union. We must, therefore, be indulged if a point which so nearly relates to our welfare be rigidly examined. The new constitution not only prohibits vessels, bound from one state to another, from paying any duties, but even from entering and clearing- T he only use o f such a regulation is. to keep each state in complete ignorance o f its own resources. It certainly is no hardship to enter and clear at the custom house, and the expense is too small to be an object. The unlimitted right to regulate trade, includes the nght o f granting exclu ­ sive charters. This, in all okl countries, is considered as one principal branch o f prerogative. W e find hardly a country in Europe which has not felt the ill effects o f such a power. Holland has carried the exercise o f it farther than any other state; and the reason w hy that country has felt less evil from it is. that Ihe territory is very small, and they have drawn large revenues from their colonies in the East and W est Indies. In this respect, the whole country is to be considered as a trading com p an y, havin g ex clu siv e privileges. The colonies are large in proportion to the parent state; so that, upon the whole, Ihe latter may gain by such a system . W c are also to lake into consideration the industry which the genius o f a free government in­ spires. But in the British islands all these circum stances together have not prevented them from being injured by the m onopolies created there. Indi­ viduals have been enriched, but the country at large has been hurt. Som e valuable branches o f trade being granted to com panies, who transact their business in London, that city is. perhaps, the place o f the greatest trade in the world. But Ireland, under such influence, suffers exceedingly, and is impoverished; and Scotland is a mere bye-word. B ristol, the second city in

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Massachusetts England, ranks not much above this town in population. These things must be accounted for by the incorporation of trading companies; and if they are fell so severely in countries of small extent, they will operate with tenfold severity upon us. who inhabit an immense tract; and living towards one extreme of an extensive empire, shall feel the evil, without retaining that influence in government, which may enable us to procure redress. There ought, then, to have been inserted a restraining clause which might prevent the Congress from making any such grant, because they consequentially defeat the trade of the out-ports, and are also injurious to the general com­ merce. by enhancing prices and destroying that rival ship which is the great stimulus to industry. Agnppa.

VII 18 December 1787

To the People. 4.6. a6

There cannot be a doubt, that, while the trade o f this continent remains free, the activity o f our counlrym en will secure their full share. All the estimates for the present year, lei them be made by what party they m ay. suppose the balance o f trade to be largely in our favour. T he credit o f our merchants is. therefore, fully established in foreign countries. This is a sufficient proof, that when business is unshackled, it w ill find out that channel which is most friendly to its course. We ought, therefore. 10 be exceedingly cautious about diverting or restraining it. Every d ay produces fresh proofs, that people, under the immediate pressure o f difficulties, do not. at first glance, discover the proper relief. The last year, a desire to get rid o f embarrassments in­ duced many honesi people to agree to a tender-act. and many others, o f a different description, to obstruct the courts o f ju stice Both these methods only increased the evil they were intended to cu re. Experience has since shewn, that, instead o f trying to lessen an evil b y altering the present course o f things, every endeavour16 should have been applied to facilitate the course o f law . and thus to encourage a mutual confidence am ong the citi­ zens. which increases the resources o f them all. and renders easy the pay­ ment o f debts. By this means one d o es not grow rich at the expense o f another, but all are benefited. The case is the same with the states. Penn­ sylvania, with one port and a large territory, is less favourably situated for trade than the M assachusetts, which has an extensive coast in proportion to its limits o f jurisdiction. Accordingly a much larger proportion o f our people

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Agrippa are engaged in maritime affairs. W e ought therefore to be particularly alien* tive to securing so great an interest It is vain to tell us lhat w e oughl to overlook local interests. It is only by protecting local concerns, that the interest o f the whole is preserved. N o man when he enters into society, does it from a view to promote the good o f others, but he does it for his own good. A ll men having the same view are bound equally to promote the w elfare of the whole. T o recur then lo such a principle as lhat local interests must be disregarded, is requiring o f one nian to do more lhan another, and is sub­ verting the foundation o f a free government. The Philadelphians would be shocked with a proposition to place the seat o f general government and the unlimited right to regulate trade in the M assachusetts There can be no greater reason for our surrendering the preference lo them. Such sacrifices, how ever w e may delude ourselves with the form o f w ords, alw ays originate in folly, and not in generosity.'7 Let me now request your attention a little while to the actual slate o f

he accounts of the Maryland Convention Minority 5.4 and John Francis Mercer 5.5.

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A Farmer , Essay V (BALTIMORE)

MARYLAND GAZETTE

March 1788

Among the more penetrating and com prehensive Anti-Federalist essays are these written by A (Maryland] Farm er, printed in the Maryland G azelle during February. M arch, and April o f [7*8, and here reprinted for the first lim e. On the issues o f a bill o f rights, political parties, and especially repre­ sentation and simple versus com plex governm ent, the argument o f this Maryland writer is indispensable to the student o f Anti-Federalist thought. While no direct evidence o f authorship has been found, it seems likely that A [Maryland] Farmer w as John Francis M ercer, a non-signing member o f the Constitutional Convention and an active Maryland Anti-Federalist.1 B om in Virginia. M ercer w as educated at William and M ary, studied law under Thom as Jefferson, performed extensive military service during ihe Revolutionary War, and represented Virginia in Congress. On his marriage in 1785. he removed to Maryland, from which state he w as chosen to serve in the Federal Convention in 1787. which he left before its w ork was finished. He played an active part in the Maryland opposition to the Con­ stitution. On the establishment o f the new governm ent. M ercer aligned him self with (he Republicans and devoted him self largely to politics. He served as a member o f the Maryland House o f Delegates, briefly as a member o f the federal House o f Representatives, and as G overnor o f M aryland.2 The attribution is inconclusive since it depends almost entirely on a similarity in argument between those o f A Farmer and (hose known to have been made b y M ercer. Y et the similarity is striking and goes well beyond ordinary parallels among Anti-Federalists. The c h ief source o f M ercer’s view s is M adison's report o f his speech in the Convention on 14 August. We have in addition a useful letter to Jefferson, written in 1804. and the "A d d ress to the Members o f the Conventions o f N ew York and Vir­ gin ia." which is printed b elow .2 Both Mercer and A Farmer find their central argument in the contention that the Constitution falls between the tw o stools o f genuine simple govern­ m ent and genuine m ixed o r co m p lex go vern m ent. L ik e m any AntiF ed eralists, th e y are much concern ed with representation, but their

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Maryland analyses o f representation— a s a system tending to lead to aristocratic domination and then to tyranny unless held in check b y permanent and fixed orders— are very similar to one another and quite distinct from the more usual discussions b y, fo r exam ple, Sam uel Chase o f Maryland and Richard H enry L ee o f Virginia.4 Both M ercer and A Farm er are favorably impressed with England as an exam ple o f mixed governm ent, and both argue for a strong executive in any stable com plex government * Their concern fo r the preservation o f the slates is less distinctive, but here lo o M ercer and A Fanner are unusual in their particular discussion o f the federal system as a system o f balance o f pow er4 and in their concern with party.7 R eferences are provided to the main points o f sim ilarity, so that the reader can judge for him self the accuracy o f the editor's opinion that M ercer w as in all probability the author o f ihi3 interesting and important series o f essays. A Farmer look up his pen to reply to a Federalist pamphlet by Aristides, the pseudonym o f Alexander C ontee Hanson, a Maryland legislator and ju d ge.1 First he replies to what Aristides had described as his attack on "th e whole body o f anti-federalists in their stronghold," the absence o f a bill o f rights. White making the usual arguments here, A Farm er also turns a com ­ mon Federalist view on its head by contending that, whereas in a monarchy numbers are typically on the side o f the individual, in a popular governm ent the danger to the individual lies in the interests or heated passions o f the majority and that, therefore, the freer or more dem ocratic the government, the greater the need for clear expressions o f individual rights. A Farmer concludes this essay with the question whether a national government is to be prefen-ed fo r the United States to a league or a confederation. In his second essay A Farmer postpones a promised discussion o f con­ solidation and takes up the subject o f representation. This is one o f the four or five major Anti-Federalist discussions o f this critical issue. Here and throughout there is a tension in the author's thought between a defense o f simple governm ent in principle and an objection to a premature adoption o f a com plex governm ent for which A m erica does not provide the materials. He begins with sharp sarcasm about the brash confidence o f his opponents in their new knowledge and an unusually strong statement (even for the conservative Anti-Federalists) that "th ere is nothing solid or useful that is n e w " (II, 5.1.22). Far from being unknown in former lim es, governm ent by representation is coeval with mankind but, being the government most liable to corruption, has alw ays been o f short duration. B roadly speaking, the argument in this important i f somewhat loose essay is that representative government is aristocracy, which is corrupt and tyrannical and w hich leads the desperate people to hand them selves over to a single man. N orm ally, then, representative government Leads to tyranny supported by a standing army: but A Fanner holds out a possibility o f tempering the aristocracy with a strong and independent executive (unlike the union o f Senate and Execu-

A Farmer cive under the Constitution). The usual course o f degeneration will be speeded and exaggerated in the United States, how ever, when thirteen complicated forms o f government are bound in a single further com plicated government to the com plete destruction o f “ all responsibility (the only test o f good government)*’ In the third essay. A Farmer takes up the question o f whether a national or a federal governm ent is to be preferred. W hile a national governm ent will add to the dignity and splendor o f the United States, true happiness lies in simple quiet governm ent. H ow ever. A Farm er sees little in the present com jpted manners o f his fellow citizens to suggest that they are now capa­ ble o f sustaining self-governm ent. S o far as relations am ong the states and defense against foreign intrigue or corruption are concerned, a confedera­ tion o f small popular governm ents is best. In the latter part o f the essay, A Farm er provides a very interesting sketch o f the three main classes in the United States, and (heir probable future (III, 5.1.56-60). He ends with the observation that " o n the preservation o f parties, public liberty d ep en ds." and that the aim o f a free and w ise people should be to balance parties so that from the w eakness o f all they may be governed b y the moderation o f the combined judgm ents o f the whole (III. 5.1.60). In the fourth essay A Farmer criticizes the absence o f provision for trial by jury in civil cases and discusses the value o f the ju ry as the democratic part o f the judiciary— the people's check on governm ent and their school m public affairs. in his very important and com plex fifth essay. A Farmer returns to his major theme o f representation. The discussion begins with "governm ents o f simplicity and equal right," which have not been dealt with faithfully in theory and practice (V . 5.1.69). For w hatever reasons, w e seem to be tend­ ing toward mixed government with permanent and fixed orders. If this is to be our direction, let us proceed slow ly and carefully. Governm ent by repre­ sentation "se ts all system at defiance” by inducing constant change son at ibid 96 (“ . . no government can exist unless ill powers extend to make provisions for every contingency "> and The Federalist nos 23. 31. See Bratus VII, 3.9.88-90 4 0 . M a d is o n ;

"In o r d e r t o j u d g e p r o p e r l y o r t h e q u e s t i o n

b e fo re u s . w e m u st

c o n s i d e r it m i n u t e l y in i t s p r i n c i p a l p a r t s . I c o n c e i v e m y s e l f t h a t it i s o f

a

m ix e d

n a t u r e ; it is m a m a n n e r u n p r e c e d e n t e d : w e c a n n o t f i n d o n e e x p r e s s e x a m p l e m t h e e x p e r i e n c e o f t h e w o r l d . I t s t a n d s b y i t s e l f . I n s o m e r e s p e c t s it i s a g o v e r n m e n t o f f e d e r a l n a t u r e ; i n o t h e r s , it is o f a c o n s o l i d a t e d

a

n a t u r e . E v e n i f w e a t t e n d t o th e

m a n n e r in w h i c h t h e C o n s t i t u t i o n i s i n v e s t i g a t e d , r a t i f i e d , a n d m a d e t h e a c t o f t h e p e o p le o f A m e r i c a . I c a n s a y . n o tw ith s ta n d in g w h a t th e h o n o r a b le g e n tle m a n h a s a l l e g e d , t h a t t h i s g o v e r n m e n t i s n o t c o m p l e t e l y c o n s o l i d a t e d , n o r i s it e n t i r e l y f e d ­ E l l i o t 111. 9 4 C f The Federalist n o 3 9 . * 5>-57 41. Madison did not give it a name. Cortnn suggested “ a representative federal republic, as contradistinguished from a confederacy ." Elliot III, 107- On the question o f names see above Martin 2.4.43 n IJ Federal Farmer I. 2.8.10 n. 9 e r a l.”

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I I

I I

ft

/

New Y ork: Introduction

T w o weeks after Virginia began her deliberations, the N ew Y o rk delegates convened in Poughkeepsie A s in Pennsylvania, but in sharp contrast to Virginia, tw o opposing parties existed whose prior differences carried over to Ihe question o f ratification The N ew York Federalists were the party o f the commercial and professional classes o f N ew York C ity , allied through background, interest and marriage with the large landholders o f upper N ew York State. The Clintonian party, forerunner o f the Anti-Federalists. drew its leadership from the radical W higs and was solidly based on the small farm ers.' A lw ays fearful o f any relinquishment o f slate authority. G overnor Clinton acquiesced to the growing pressure for a constitutional convention. H ow ­ ever the Clintonians showed greater political understanding than the Penn­ sylvania Constitutionalists and deliberately sent two opponents o f greater central pow ers. John Lansing. Jr . and Robert Y ates, to bracket Alexander Hamilton, w ho was warm ly supported by the many Federalists in the Senate and was known for his advocacy o f a stronger central government. With the publication o f the proposed Constitution, the Anti-Federalists produced a stream o f criticism . An A lbany Anti-Federalist Com m ittee circulated an address o f its own as well a s M ercy W arren's Columbian Patriot. General John Lamb, the custom s inspector o f the port o f N ew Y o rk , headed an Ami-Federal group w hich called itself the Federal Republicans and at­ tempted, unsuccessfully, to concert the plans o f Anti-Federalists through­ out the country, incidentally providing historians with valuable materials on the ratifying controversy.7 The Clinton strategy during the ratification debate remains obscure, and it is difficult to avoid the conclusion that C linton’ s normally sure hand in local affairs deserted him on this broader scene. The N ew York Legislature, in the control o f the Clintonians. issued a call for a ratifying convention to be elected by universal manhood suffrage to meet on 17 June, rejecting a pro­ posed preamble to the effect that the Constitutional Convention had e x ­ ceeded its powers. The Anti-Federalists secured an overwhelm ing success, electing 46 delegates to ihe Federalists’ 19. Had Clinton arranged to hokl the Convention early in the year, a rejection by N ew York would have been likely, with its inevitable effect on the other states. Clinton appears not to

329

New York have felt certain that he could carry his party /or rejection, if that was indeed what he wanted.3 He chose to delay. By mid-June, how ever, eight states had ratified, and mid-way in N ew Y o rk ’ s deliberations N ew Hampshire and Virginia joined them. N ew Y o rk 's unpopular econom ic policies might now bring retaliation backed by a strong union- There were rumors o f secession by the southern counties if the state rejected the Constitution. Many Clinto­ nian s. including Melancton Smith, the dominant Anti-Federalist figure in the debate, were anxious to find grounds o f agreement. Various compromises were suggested, and unconditional ratification together with explanatory provisions and recommendatory amendments w as finally agreed to by the narrow margin o f 30 to 2 5 / Accom panying the ratification was a circular letter from Clinton to the other governors urging a second convention to draft amendments to the Constitution. 1 . O n b a c k g r o u n d a n d r a t i f i c a t i o n in N e w Y o t k s e e S p a u l d i n g . New York in the Critical Period; T h o m a s C h i l d s C o c h r a n , New York in the Confederation: An Eco* notttic Study ( P h i l a d e l p h i a 1 9 3 2 ) : C l a r e n c e M i n e r , The Ratification o f the Federal Constitution by the Stale o f New York ( N e w Y o r k 1 9 2 1 ) : a n d e s p e c i a l l y D e P a u w . The Eleventh Pillar. 2. F o r a d i s c u s s i o n o f t h e a c t i v i t i e s o f 1 h e F e d e r a l R e p u b l i c a n s s e e I s a a c Q . L e a k e , Memoir o f the Life and Timet o f General John Lamb c h . 2 3 , a n d D e P a u w , The Eleventh Pillar. 3

E d w a r d C a r r in g to n w r o t e to J e ffe r s o n o n 23 O c t o b e r 1 7 8 7 (h a t " t h e G o v e r n o r

h o l d s h i m s e l f in p e r f e c t s i l e n c e , w i s h i n g , ii i s s u s p e c t e d , f o r a m i s c a r r i a g e , b u t i s n o t c o n f i d e n t e n o u g h t o c o m m i t h i m s e l f 10 a n o p e n o p p o s i t i o n . " C u r t i s ,

History 4

Documentary

I V . 345.

See D ePauw .

The Eleventh Pillar

chs

s u b s t a n c e c o n d itio n a l

330

1 8 . 1 9 . w h o r e g a r d s t h e r a t i f i c a t i o n a s in

Speeches by M elancton Smith Delivered in the Course o f Debate by the Convention o f the State o f New York on the Adoption of the Federal Constitution

June 1788

The debates o f the N ew Y o rk ratifying convention rival those in Virginia for the excellen ce o f their discussion o f the Constitution. Perhaps the ques­ tions w ere publicly debated more fully here than anyw here else, and in none o f the conventions is the essential question o f representation so thoroughly discussed on both sides. On the Federalist side the main argument was carried, easily and brilliantly, b y Alexander Hamilton. H e w as met by the solid, often deep, and scarcely less able objections o f M elancton Smith. A prominent businessman o f N ew Y o rk City and Poughkeepsie, Smith had served in the fust Provincial C ongress o f N ew Y o rk , in the Continental C ongress, and as sheriff o f D utchess C o u n ty .1 The five speeches o f Smith printed here fall into three parts: the constitu­ tion o f the House o f Representatives, the constitution o f the Senate, and the congressional power to tax. T h e speeches were given on 20. 21, 23, 23 and 27 June, and are taken here from the original 1788 publication.1 Smith begins with a series o f general introductory rem arks, including an affirmation o f attachment to both Union and liberty (6.12.1-2). an acknow l­ edgment o f the defects o f the Articles o f Confederation C6.t2.y-4), a re­ emphasis o f his opponent's admission that the new Constitution w as a radi­ cal change in the Articles t6.i2.5-G). and a warning against innovations, especially in a governm ent resting on the opinion o f the people (6.12.7). He then proceeds to his objections to the constitution o f the House o f Repre­ sentatives, especially that the representation is too small. T his leads Smith into a discussion o f the origin and true principles o f representation, which is one o f the major Anti-Federalist statem ents on this subject (see esp. 6.12.8-25). It is interesting and important to compare Sm ith's theoretical aim (a representative body that ‘ ’ resem bles" the body o f the people) and his practical aim (a representative body that will include a due proportion o f the middling classes, along with the natural aristocracy, w hich will inevitably make up a large part o f the representation). Like L ee, Smith is concerned that the spirit o f liberty, on w hich the Federalists profess to rely, should be

33i

New York supported and maintained b y congenial laws. A n d , like L ee, Smith con­ ced es that an adequate representation is not possible in any governm ent (or the w hole United States and that therefore, while the representation must be improved, the pow ers o f the federal government must be carefully limited and checked. In his discussion o f the Sen ate, Smith admits the need fo r such a body to stabilize the governm ent; but he insists that a system o f rotation and recall is both feasible and con sisten t with republican principles and that the Federalists exaggerate the danger o f state influence (6.12.27-32). It is inter­ esting, m view o f the previous argument on representation, that here Smith relies on the argument that the state legislatures are not mere reflectors o f the whims o f the people but “ select b od ies" (6.12.3a). The last speech (6.12.36-40) contains Sm ith's m ajor argument regarding the unlimited jx>wer o f federal taxation. H ere Smith is supporting a timkation on the federal taxing pow er, without w hich he believes that the states wilt ultimately be destroyed as significant p a n s o f the system . Against the Hamiltonian argument that the means must be proportionate to the cod and that the end o f the federal government is un&mitaMe, Smith attempts to set the substantia) accom plishm ents o f the stale and federal governm ents under the Confederation and the imprudence o f radical change. I. There is no biography o f Smith. See Julian P. Boyd, "Melanctoo Snath," Dic­ tionary o f American Biography XVII, 319-20. Smith is traditionally identified aa the author o f the Plebeian essays, tee 6. r 1. a. The Debates and Proceedings o f the Convention o f the State of Hew For*. Assembled at Poughkeepsie, oc the 17th June 1788(New York: France ChikJu. 1788). Footnote references to these debates are made, as usual, to (he more accessible Elliot.

[The debate having been o p en ed by Chancellor Robert R . Livingston and John Lansing, on the 19th and 20th o f June I?8&, the Convention turned, at Me lane ton S m ith 's suggestion, to a para graph-by-para graph consideration o f the proposed Constitution. Article 7. section 1, was read and passed by without discussion. Section 3, providing f o r the constitution o f the H ouse o f Representatives, was discussed at length. The discussion consisted largely tn a debate between Smith and Alexander Hamilton, a debate which is one o f the high points o f the controversy over the Constitution. ]

20 J u n e J7$8

6.12.1

Mr. Smith again rose— He most heartily concurred io sentiment with the honorable gentleman w ho opened the debate yesterday, that the discussion o f the important question now before them ought 10 be entered on with a

332

Meloncion Smith spirit o f patriotism: with minds open to conviction; with a determination to form opinions only on the merits o f the question, from those evidences which should appear in the course o f the investigation. How far the general observations made b y the honorable gentleman ac­ corded with these principles, he left to the H ouse to determine. It was not, he said, his intention to follow that gentleman through all his remarks— he should only observe, that what had been advanced did not appear to him to apply to ih c subject under consideration. He was as strongly impressed with the necessity o f a Union, as any one could be: H e would seek it with as much ardor. In the discussion o f this subject, he w as disposed to make every reasonable concession, and indeed

6.12.2

to sacrifice every thing for a Union, except the liberties o f his country, than which he could contemplate no greater m isfortune.1 But he hoped we were not reduced to the necessity o f sacrificing or even endangering our liberties to preserve the Union. If that was the case, the alternative was dreadful. But he would not now say that the adoption o f the Constitution would endanger our liberties; because that was the point to be debated, and the premises should be laid down previously to the drawing o f any conclusion. He wished that all observations might be confined to this point: and that declamation and appeals to the passions might be om itted. W hy, said h e, are w e told o f our w eaknesses?2 O f the defenceless condition o f the southern p an s o f our state? O f the exposed situation o f our

6.12.3

capital? O f Long-Island surrounded b y w ater, and exposed to the incursions o f our neighbours in Connecticut? O f Verm ont having separated from us and assumed the pow ers o f a distinct governm ent; And o f the North-West part o f our state being in the hands o f a foreign enem y?— W hy are we to be alarmed with apprehensions that the Eastern states are inimical, and dis­ inclined to form alliances with us? He was sorry to find that such suspicions were entertained. He believed that no such disposition existed in the East­ ern states. Surely it could not be supposed that those stales would make war upon us fo r exercising the rights o f freem en, deliberating and judging for ourselves, on a subject the most interesting that ev er cam e before any assembly. If a w ar with our neighbour was to be the result o f not acceding, there w as no use in debating here; we had better receive their dictates, if we were unable to resist them. The defects o f the Old Confederation needed as little proof as the necessity o f an Union: But there was no proof in all this, that the proposed Constitution w as a good on e. D efective as the Old Con­ federation is. he said, no one could deny but it w as possible w e might have a worse government. But the question w as not whether the present Con­ federation be a bad one; but whether the proposed Constitution be a good one.4

It had been observed, that no examples of Federal Republics had sueceeded.' It was true that the ancient confederated Republics were all destroyed— so were those which were not confederated; and alt antient

333

6.12.4

New York Governments o f every form had shared the same fate. Holland had un­ doubtedly experienced many evils from the defects in her government; but with all these defects, she yet existed; she had under her Confederacy made a principal figure among the nations o f Europe, and he believed few coun­ tries had experienced a greater share o f internal peace and prosperity. The Germanic Confederacy was not the most pertinent exam ple to produce on this occasion:—-Am ong a number o f absolute Princes w b o consider their subjects as their property, whose will is law, and to whose ambition there are no bounds, it was no difficult task to discover other causes from which the convulsions in that country rose, than the defects o f their Confedera­ tion. W hether a C onfederacy o f S tales under any form be a practicable Governm ent, w as a question to be discussed in the course o f investigating this Constitution. 6 .1 2 .5

He was pleased that thus early in the debate, the honorable gentleman had him self shew n, that the intent o f the Constitution w as not a Confederacy, but a reduction o f all the states into a consolidated governm ent.1 He hoped the gentleman would be complaisant enough to exchange names with those who disliked the Constitution, as it appeared from his ow n concession that they were Federalists, and those who advocated it Anti-Federalists.* He begged lea ve, how ever, to remind the gentlem an, that Montesquieu, with aU the exam ples o f modern and antient Republics in view , gives it as his opin­ ion. that a confederated Republic has all the internal advantages o f a Re­ public, with the external force o f a M onarchical G overnm ent.’ He was happy to find an officer o f such high rank recommending to the other officers o f Governm ent, and to those who are members o f the Legislature, to be unbiassed by any m otives o f interest or state im portance.“ Fortunately for himself, he was out o f the verge o f temptations o f this kind, not having the honor to hold any office under the state. But then he was exposed, in common with other gentlemen o f the Convention, to another temptation, against which he thought it necessary that w e should be equally guard­ ed:— If. said he. this constitution is adopted, there will be a number o f honorable and lucrative offices to be filled, and w e ought to be cautious lest an expectancy o f some o f them should influence us to adopt without due consideration.

6.12.6

We may wander, said he, in the fields o f fancy without end. and gather flowers as we go; It may be entertaining— but it is o f little service to the discovery o f truth:— W e may on one side com pare the schem e advocated by our opponents 10 golden images, with fe e t part o f iron and parr o f clay; and on the other, to a beast dreadful and terrible, and strong exceedingly, having great iron teeth, which devours, breaks in pieces, and stamps the

6.12.7

residue with his fee t: And after all. said he. w c shall find that both these allusions arc taken from the same vision: and their true meaning must be discovered by sober reasoning. He would agree with the honorable gentleman, that perfection in any

334

Melancton Smith system o f government w a s not to be looked for. If that w as the object, the debales on the one before them might soon be closed.— But he would o b ­ serve that this observation applied with equal force against changing any system s— especially against material and radical changes.— Fickleness and inconstancy, he said, w as characteristic o f a free peopte; and in framing a Constitution for them, it w as, perhaps the most difficult thing to correct this spirit, and guard against the evil effects o f it— he was persuaded it could not be altogether prevented without destroying their freedom — it would be like attempting to correct a small indisposition m the habit o f ihe body, by fixing the patient in a confirmed consumption.— This fickle and inconstant spirit w as the more dangerous in bringing about changes in the government.* The instance that had been adduced by the gentleman from sacred history, was an exam ple in point to prove this: T h e nation o f Israel having received a form o f civil government from H eaven, enjoyed it for a considerable period: but at length labouring under pressures, which w ere brought upon them by their ow n m isconduct and im prudence, instead o f imputing their mis­ fortunes to their true causes, and making a proper improvement o f their calam ities, by a correction o f their errors, they imputed them to a defect in their constitution; they rejected their Divine Ruler, and asked Samuel to make them a King to judge them, like other nations. Samuel w as grieved at their folly; but still, by the command o f G od . he hearkened to their voice; tho' not until he had solemnly declared unto them Ihc manner in which the K in g should reign over them. "T h is, (says Samuel) shall be the manner o f the Ktng that shall reign o v er you- He will take your sons and appoint them fo r himself, for his chariots, and for his horsem en, and som e shall run before his chariots: and be w ill appoint him captains over thousands, and captains o ver fifties, and will set them to ear his ground, and to reap his harvest, and to make his instruments o f w ar, and instruments o f his chariots. And he will take your daughters to be confectionaries, and to be cook s, and to be bak­ ers. And he will take you r fields, and your vine yards, and you r olive yards, even the best o f them, and give them to his servants. And he will take the tenth o f your seed, and o f your vineyards, and give to his officers and to his servants. And he will take your men servants and you r maid servants, and you r goodliest young men, and your asses, and put them to his work. He will take the tenth o f your sheep: And y e shall be his servants. And y e shall c r y out in that d a y. because o f your K in g which y e have chosen you ; and the Lord w ill not hear you in that d a y ." '* — How far this w as applicable to the subject he would not now say; it could be better judged o f when they had gone through it.— O n the whole he wished to take up this matter with candor and deliberationHe would now proceed to state his objections to the clause just read, (section a o f article I, clause j .) H is objections were comprised uoder three heads: i s i the rule o f apportionment is unjust: 2d. there is no precise number fixed on below which the house shall not be reduced; 3d. it is inadequate. In

335

6.12.8

New York the first place the rule o f apportionment o f the representatives is to be according to the whole number o f the white inhabitants, with three fifth* o f ah others; that is in plain English, each state is to send Representatives to proportion to the number o f freem en, and three fifths o f the slaves it con­ tains. He could not see any rule by w hich slaves are to be included in the ratio o f representation'. The principle o f a representation, being that every free agent should be concerned in governing himself, it w as absurd to give that pow er to a man w ho could not exercise it— slaves have no will o f their ow n: The very operation o f ft was to give certain privileges to those people who w ere so w icked as to keep slaves. He knew it would be admitted that this rule o f apportionment w as founded on unjust principles, but that ft was the result o f accom m odation; which he supposed w e should be under the necessity o f admitting, if w c meant to be in union with the Southern Stales, though utterly repugnant to his feelings. In the second place, the number w as not fixed by the Constitution, but left at the discretion o f the Legisla­ ture: perhaps he was mistaken; it was his wish to be informed. He under­ stood from the Constitution, that sixty-five Members were to compose the House o f Representatives for three years; that after that time a census was to be taken, and the numbers to be ascertained b y the Legislature on the following principles; ts l, they shall be apportioned to the respective States according to numbers; 2d, each State shall have one at least; 3d, they shall never exceed one to ev ery thirty thousand If this was the case, the first C ongress that m et might reduce the number below w hat it now is; a power inconsistent with every principle o f a free governm ent, to leave it to the discretion o f the rulers to determine the n u m berof the representatives o f the people- There w as no kind o f security except in the integrity o f the men who w ere entrusted; and if you have no other security, it is idle to contend about Constitutions. In the third place, supposing Congress should declare that there should be one representative for ev ery thirty thousand o f the people, in his opinion it would be incompetent to the great purposes o f representa­ tion. It w a s, he said, the fundamental principle o f a free government, that the people should make the laws by which they were to be governed: He w ho is controlled by another is a slave; and that government which is directed by the will o f any one or a fe w , or any number less than is the will o f the com m unity, is a governm ent for slaves. 6.12.9

The next point w as, how w as the will o f the community to be expressed? It was not possible for them to com e together; the multitude would be too great: In order, therefore to provide against this inconvenience, the scheme o f representation had been adopted, b y w hich the people deputed others to represent them. Individuals entering into society becam e one body, and that body ought to be animated by one mind; and he conceived that every form o f government should h ave (hat com plexion, ft was true that notwithstand­ ing all the experience w e had from others, it had not appeared that the experiment o f representation had been fairly tried: there w as something like

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Melancton Smith it in the ancient republics, in w hich, being o f small extent, the people could easily meet together, though instead o f deliberating, they only considered o f those things which w ere submitted to them by their magistrates. Sn Great Britain representation had been earned much farther than in any govern' ment w e knew o f. except our ow n; but in that country it now had only a name. Am erica w as the only country, in which the first fair opportunity had been offered. When w e were Colonies, our representation w as better than any that w as then known; Since the revolution we had advanced still nearer to perfection. He considered it as an object, o f all others the most important, to have it fixed on its true principle; yet he w as convinced that it was impracticable to have such a representation in a consolidated government. H owever, said he. we may approach a great w ay towards perfection by encreasing the representation and limiting (he pow ers o f C o n gress." He considered that the great interests and liberties o f the people could only be secured by the State Governm ents. He admitted, that if the new government w as only confined to great national objects, it would be less exceptionable, but it extended to every thing dear to human nature. That this was the case could be proved without any long chain o f reasoning:— for that pow er which had both the purse and the sw ord, had the govem m eni o f the w hole country, and might extend its pow ers to any and to every object. He had already observed, that by the true doctrine o f representation, this principle was established— that the representative must be chosen by the free will o f the majority o f his constituents: It therefore follow ed that the representative should be chosen from small districts. T his being admitted, he would ask, could 65 men, fo r 3,000.000. or r for 30.000, be chosen in this manner? Would they be possessed o f the requisite information to make happy the great number o f souls thal were spread over this extensive country ?— 'T here was another objection to the clause: If great affaire o f government were trusted to a Tew men. they would be m ore liable to corruption. Corruption, he knew, was unfashionable amongst us. but he supposed that Americans were like other men; and th o ' lhey had hitherto displayed great virtues, still they were men; and therefore such steps should be taken as to prevent the possibility o f corruption. We were now in (hat stage o f society, in which we could deliberate with freedom ;— how long il might continue. God only knew ! Tw enty years hen ce, perhaps, these maxims might becom e un­ fashionable; w e already hear, said he. in all parts o f the country, gentlemen ridiculing that spirit o f patriotism and love o f liberty, which earned us through all our difficulties in times o f danger.— When patriotism w as already nearly hooted oul o f society, ought w e not to take some precautions against the progress o f corruption?'1 He had one more observation to m ake, to shew that the representation w as insufficient— G ovem m en i. he said, must rest for its execution, on the good opinion o f the people, for if it was made in heaven, and had not the confidence o f the people, it could not be executed:1* that this w as proved.

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New York by the exam ple given by the gentlem an, o f the Jewish theocracy. It must have a good setting o u t. or the instant it tnkes place there is an end o f liberty. He believed that the inefficacy o f the atd Confederation, had arisen from that want o f confidence; and this caused in a great degree by the continual declamation o f gentlemen o f importance against it from ooe end of the continent to the other, w ho had frequently compared it to a rope o f sand. It had pervaded every class o f citizens, and their misfortunes, the conse­ quences o f idleness and extravagance, were attributed to the defects o f that system . A t the close o f the war. our country had been left in distress: and it w as impossible that any government on earth could immediately retrieve it; it must be time and industry alone that could effect it. He said he would pursue these observations no further at present,— And concluded with making the following motion: "R eso lved . That it is proper that the number o f representatives be fixed at the rate o f one for every twenty thousand inhabitants, to be ascertained on the principles mentioned in the second section o f the first article o f the Constitution, until they amount to three hundred; after which they shall be apportioned am ong the States, in proportion to the number o f inhabitants o f the States respectively: And that before the first enumeration shall be made, the several Slates shall be entitled to chuse double the number o f represen­ tatives for that purpose, mentioned in the C onstitution."

2i June 1788 6.12.11

Mr. M . Smith. I had the honor yesterday of submitting an amendment to the clause under consideration, with some observations in support o f it. I hope I shall be indulged in making some additional remarks in reply to what has been offered by the honorable gentleman from N ew -York (Alexander Hamilton |. He has taken up much time in endeavouring to prove that the great defect in the old confederation w as. that it operated upon states instead o f individ­ uals. It is needless to dispute concerning points on which w c do not dis­ agree: It is admitted that the pow ers o f the general government ought to operate upon individuals to a certain degree. H ow far the powers should extend, and in what cases to individuals is the question. A s the different parts o f the system will com e into view in the course o f our investigation, an opportunity will be afforded to consider this question; I wish at present to confine m yself to the subject immediately under the consideration o f the committee. I shall make no reply to the arguments offered by the bon. gentleman to justify the rule o f apportionment fixed by this clause: For though I am confident they might be easily refuted, yet 1 am persuaded we

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Melancton Smith must yield this point, in accom m odation to the southern states. T he amendment therefore proposes no alteration to the clause in this respect. The honorable gentleman says, that the clause by obvious construction fixes the represenUtk>n.,4 I wish not to torture words or sentences. I per­

6.12.12

ceive no such obvious construction. 1 sec clearly, that o n the one hand the representatives cannot exceed one for thirty thousand inhabitants; and on the other, that w hatever larger number o f inhabitants may be taken fo r the rule o f apportionment, each state shall be entitled to send one representa­ tive. E very thing else appears to me in the discretion o f the legislature. If there be any other limitation, it is certainly implied. Matters o f such moment should not be left to doubtful construction. It is urged that the number o f representatives will be fixed at one for 30,000. because it w ill be the interest o f the larger states to d o i t . 's I cannot discern the fo rce o f this ar­ gument.— T o me it appears clear, that the relative weight o f influence o f the different states will be the same, with the number o f representatives at 65 as at 600, and that o f the individual members greater. For each member’ s share o f pow er will decrease as the number o f the house o f representatives increases.— If therefore this maxim be true, that men are unwilling to re­ linquish powers which they once possess, we are not to expect that the house o f representatives will be inclined to enlarge the numbers. The same motive will operate to influence the president and senate to oppose the increase o f the number o f representatives; for in proportion as the weight o f the house o f representatives is augmented, ihey will feel their own di­ minished: ft is therefore o f the highest importance that 2 suitable number of representatives should be established by the constitution. It has been observed by an honorable member, that the eastern states

6.12.13

insisted upon a small representation on the principles o f ceconom y.— This argument must have no weight in the mind o f a considerate person. The difference o f exp ence, betw een supporting a house o f representatives sufficiently numerous, and the present proposed one would be about 20 or yo,000 dollars per annum. The man w ho would seriously object to this expence, to secure his liberties, does not deserve to enjoy them. B esides, by increasing the number o f representatives, we open a door fo r the admission o f the substantial yeom anry o f your country ; who, being possessed o f the habits o f (economy, will be cautious o f imprudent expenditures, by which means a much greater saving will be made o f public money than is sufficient (0 support them. A reduction o f the number o f the state legislatures might also be made, by which means there might be a saving o f expence much more than sufficient for the purpose o f supporting the general leg is­ lature.— F or. as under this system all the pow ers o f legislation relating to our general concerns, are vested in the general governm ent, the powers o f the state legislatures will be so curtailed, as to render it less necessary to have them so numerous as they now are. But an honorable gentleman has observed that it is a problem that cannot

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New York be solved, what the proper num ber is which ought to com pose the house o f representatives, and calls upon me to fix the number. I admit this is a question that will not admit o f a solution with mathematical certainty— few political questions w ill— yet w e m ay determine with certainty that certain numbers are too small or too large. W e may be sure (hat ten is too small and a thousand too large a number— ev ery one will allow that the first number is too small to possess the sentim ents, be influenced by the interests o f the people, or secure against corruption: A thousand would be too numerous to be capable o f deliberating.

6.12.15

T o determine whether the number o f representatives proposed by this Constitution is sufficient, it is proper to exam ine the qualifications which this house ought to possess, in order to exercise their powers discreetly for the happiness o f the people. The idea that naturally suggests itself to our minds, when w e speak o f representatives is. that they resemble those they represent: they should be a true picture o f the people: possess the know)* ed ge o f their circu m stan ces and their w ants; sym pathize in all their distresses, and be disposed to seek their true interests.1* The knowledge necessary for the representatives o f a free people, not only comprehends extensive political and com m ercial information, such as is acquired by men o f refined education, who liave leisure to attain to high degrees o f improve­ ment, but it should also com prehend that kind o f acquaintance with the common concerns and occupations o f the people, which men o f the mid­ dling class o f life are in general much better com petent to, than those o f a superior class. T o understand the true com m ercial interests o f a country, not on ly requires just ideas o f the general com m erce o f the world, but also, and principally, a knowledge o f the productions o f your ow n country and their value, what your soil is capable o f producing^J the nature o f your m anufactures, and the cap acity o f the country to increase both. T o exercise the pow er o f laying taxes, duties and ex cises with discretion, requires something more than an acquaintance with the abstruse parts o f the system o f finance, ft calls for a knowledge o f the circum stances and ability o f the people in general, a discernm ent how the burdens imposed w ill bear upon the different classes.

6.12.16

From these observations results this conclusion that the Dumber o f repre­ sentatives should be so large, a s that while it em braces men o f the first class, it should admit those o f the middling class o f life. I am convinced that this Governm ent is so constituted, that the representatives will generally be composed o f the first cla ss in the com m unity, w hich I shall distinguish by the name o f the natural aristocracy o f the c o u n try .'7 1 do not mean to give offence by using this lea n . 1 am sensible this idea is treated by many gen­ tlem en a s chim erical. 1 shall be asked w hat is meant by the natural aristocracy— and told that no such distinction o f classes o f men exists am ong us. It is true it is o u r singular felicity that w e have no legal or hereditary distinctions o f this kind; but stiU there are real differences: Every

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Melancton Smith society naturally divides itself into classes. The author o f nature has b e­ stowed on some greater capacities than on others— binh, education, talents and wealth, create distinctions among men as visible and o f as much in­ fluence as titles, stars and garters. In every society, men o f this class will command a superior degree o f respect— and if the government is so con­ stituted as to admit but few to exercise the pow ers o f it, it will, according to the natural course o f things, b e in their hands. Men in the middling class, who are qualified as representatives, will not be so anxious to be chosen as those o f the first, When the number is so small the office will be highly elevated and distinguished— 'the stile in which the members live will prob­ ably be high— circum stances o f this kind, will render the place o f a repre­ sentative not a desirable one to sensible, substantial men, who have been used to walk in the plain and frugal paths o f life. Besides, the influence o f the great will generally enable them to succeed in elections— it will be difficult to combine a district o f country containing 30 or 40.000 inhabitants, frame you r election laws as you please, in any one character: unless it be in one o f conspicuous, m ilitary, popular, civil or legal talents. The great easily form associations: the poor and middling class form them with difficulty. If the elections be by plurality, as probably will be the case in this state, it is almost certain, none but the great will be chosen— for they easily unite their interest— The common people will divide, and their divisions will be promoted by the others. There will be scarcely a chance of their uniting, in any other but some great man. unless in some popular demagogue, who will probably be destitute o f principle. A substantial yeoman o f sense and discernm ent, will hardly ev er be chosen. From these remarks it appears that the governm ent will fall into the hands o f the few and the great. This will be a governm ent o f oppression. I do not mean to declaim against the great, and charge them indiscriminately with want o f principle and honesty.— The same passions and prejudices govern all men. The cir­ cumstances in which men ate placed in a great measure give a cast to the human character, T hose in m iddling circu m stan ces, have less tem p­ tation— they are inclined by habit and the com pany with whom they as­ sociate, to sci bounds to their passions and appetites— if this is not sufficient, the want of means to gratify them will be a restraint— they are obliged to employ their time in their respective callings— hence the sub­ stantial yeomanry o f the country are more tem perate, o f better morals and less ambition than the great.'* The latter d o not feel for the poor and mid­ dling class: the reasons a rt obvious— they are not obliged to use the pains and labour to procure property as the oth er.— T h ey Feel not (he in­ conveniences arising from (he payment o f small sums. The great consider themselves above the common people— entitled to more respect— do not associate with them— they fancy themselves to have a right o f pre-eminence in every thing. In short, they possess the same feelings, and are under the influence o f the same m otives, as an hereditary nobility. 1 know the idea that

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New York such a distinction exists in this country is ridiculed by some— Bur 1 am not the less apprehensive o f danger from their influence on this account— Such distinctions exist all the world over— have been taken notice o f by ail writ­ ers on free government— and arc founded in the nature o f things. It has been the principal care o f free governm ents to guard against the encroachments o f the great. Common observation and experience prove the existence of such distinctions. Will any one say, that there does not exist in this country the pride o f fam ily, o f wealth, o f talents: and that they do nol command influence and respect among Ihe common people? C ongress, in their address to the inhabitants o f the province o f Q uebec, in 1775. state this distinction in the following forcible words quoted from the Marquis Beccaria. “ In every human society, there is an essay continually tending to confer on one part the height o f pow er and happiness, and to reduce the other to the extrem e o f weakness and misery. The intent o f good law s is to oppose this effort, and to diffuse their influence universally and equ ally.*'1' We ought to guard against the government being placed in the hands o f this class— T hey cannot have that sympathy with their constituents which is necessary to connect them clo sely to their interest: Being in the habit o f profuse living, they will be

6 -i2 .f8

profuse in the public expences. T h ey find no difficulty in paying their taxes, and therefore do not feel public burthens: Besides if they govern, they will enjoy the emoluments o f the governm ent. The middling class, from their frugal habits, and feeling them selves the public burdens, will be careful how they increase them Bui I may be asked, would you exclude the first class in the community, from any share in legislation? I answer by no means— they would be more dangerous out of pow er than in it— they would be factious— discontented and constantly disturbing the government— it would also be unjust— they have their liberties to protect as well as others— and the largest share o f properly. But my idea is. that the Constitution should be so framed as to admit this class, together with a sufficient number o f the middling class to contrpul them. You will then com bine the abilities and honesty o f the community— a proper degree o f information, and a disposition to pursue the public good. A representative body, com posed principally o f respectable yeomanry is the best possible security to liberty.— When the interest o f this part o f the community is pursued, the public good is pursued: because the body o f every nation consists o f this class. And because the interest o f both the rich and the poor a rt involved in that o f the middling class. N o burden can be laid on the poor, but what will sensibly affect ihe middling class. Any law rendering property irsecu re, would be injurious to them.— When therefore this class in society pursue their ow n interest, they promote that o f

6.12 19

the public, for it is involved in it. in so small a number o f representatives, there is great danger from c o r­ ruption and combination. A great politician has said that every man has his price.10 1 hope this is not true in all its extent— But I ask the gentlemen to

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Melancton Smith inform, what government there is, in which ii has not been practised? Not­ withstanding all that has been said o f the defects in the Constitution o f the antient Confederacies o f the Grecian Republics, their destruction is to be imputed more to this cause than to any imperfection in their form s o f g o v ­ ernment. This w as the deadly poison that effected their dissolution. This is an extensive country, increasing in population and growing in consequence. V ery many lucrative offices will be in the grant o f the government, which will be the object o f avarice and ambition. How easy w ill it be to gain o ver a sufficient number, in the bestowment o f these offices, to promote the view s and purposes o f those w ho grant them! Foreign corruption is also to be guarded against, A system o f corruption is known to be the system o f government in Europe. It is practised without blushing. And w e may Iny it to our account it will be attempted amongst us. The most effectual as well as natural security against this, is a strong dem ocratic branch in the legislature frequently chosen, including in it a number o f the substantial, sensible yeomanry o f the country. Does the house o f representatives answ er this description? I confess, to me they hardly w ear the com plexion o f a dem ­ ocratic branch— they appear the mere shadow o f representation. The whole number in both houses amounts to 9 1— O f these 46 make a quorum: and 24 o f those being secured, may carry any point Can the liberties o f three millions o f people be securely trusted in the hands o f 24 men? Is it prudent to commit to so small a number the decision o f the great questions which will com e before them ? Reason revolts at the idea. The honorable gentleman from N ew York has said that 65 members in the house o f representatives are sufficient for the present situation o f the coun­ try. and taking it for granted that they will increase as one for 30.000, in 25 years they will amount to 200. It is admitted by this observation that the number fixed in the Constitution, is not sufficient without it is augmented. It is not declared that an increase shall be made, but is left at the discretion o f the legislature, by the gentlem an's own concession; therefore the Constitu­ tion is imperfect Wc certainly ought to fix in the Constitution those things which are essential to liberty. If any thing falls under this description, it is the number o f (he legislature. T o say. as this gentleman does, that our security is to depend upon the spirit o f the people, who will be watchful o f their liberties, and not suffer them to be infringed, is absurd It would equally prove that wc might adopt any form o f government, 1 believe were we to create a despot, he would not immediately dare to act the tyrant; but it would not be long before he would destroy the spirit o f the people, or the people would destroy him. If our people have a high sense o f liberty, the government should he congenial lo this spirit— calculated to cherish the love o f liberty, while yet it had sufficient force to restrain licentiousness. G o v ­ ernment operates upon the spirit o f the people, as well as the spirit of the people operates upon it— and if they arc not conformable to each other, the one o r the other will prevail.11 In a less time than 25 years, the government

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New York wiU receive its rone. What the spirit o f the country may be at the end o f that period, it is impossible to foretell; O u r duty is to frame agovem m ent friendly to liberty and the rights o f mankind, which will tend to cherish and cultivate a love o f liberty among our citizens. If this government becom es oppressive it will be by degrees: It will aim at its end by disseminating sentiments o f government opposite to republicanism , and proceed from step to step in depriving the people o f a share in the government. A recollection o f the change that has taken place in the minds o f many in this country in the course o f a few years, ought to put us upon our guard Many w ho are ardent advocates for the new system , reprobate republican principles as chimerical and such as ought to be expelled from society. Who would have thought ten years ago. that the very men w ho risqued their lives and fortunes in support o f republican principles, would now treat them as the fictions o f fancy?— A few years ago w e fought for liberty— We framed a general government on free principles— W e placed the state legislatures, in whom the people have a full and fair representation, between Congress and the people. We were then, it is true, too cautious; and too much restricted the powers o f the general governm ent. Bui now it is proposed to go into the contrary, and a more dangerous extrem e; to remove all barriers; to give the New Govern­ ment free access to our pockets, and ample com m and o f our persons; and that without providing for a genuine and fair representation o f the people. N o one can say what the progress o f the change o f sentiment may be in 25 years. The same men w ho now cry up the necessity o f an energetic govern­ ment. to induce a com pliance with this system , m ay in much less lime reprobate this in as severe terms as they now do the confederation, and may as strongly urge the necessity o f going as far beyond this, as this is beyond the Confederation.— Men o f this class are increasing— they have influence, talents and industry— It is lim e to form a barrier against them. And while we are willing to establish a governm ent adequate to the purposes o f the union, let us be careful lo establish it on the broad basis o f equal liberty.

23 June 1788 6.12.21

Honorable Mr. Smith, I did not intend to make any more observations on this article. Indeed. I have heard nothing to d ay. which has not been suggested before, except the polite reprimand I have received for my dec­ lamation. I should not have risen again, but to examine w ho has proved him self the greatest declaim ed T h e gentleman wishes me to describe what I meant, by representing the feelings o f the people.n If 1 recollect right. I said the representative ought lo understand, and govern his conduct by the true interest o f the people.— 1 believe I slated this idea precisely. When he

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Melancton Smith attempts to explain m y ideas, he explains them aw ay to nothing: and instead o f answering, he distorts, and then sports with them. But he m ay rest assured, that in the present spirit o f the Convention, to initate is not the w ay to conciliate. The gentleman, by the false gloss he has given to my argu­ ment, makes me an enemy to the rich: This is not true. A ll I said, w as. that mankind were influenced, in a great degree, by interests and prejudices:— That men. in different ranks o f life, were exp osed to different tem p­ tations— and that ambition w as more peculiarly the passion o f the rich and great. The gentleman supposes the poor have less sym pathy with the suf­ ferings o f their fellow creatures; for that those who feel most distress them­ selves. have the least regard to the misfortunes o f others:— W hether this be reasoning o r declam ation, let all w ho hear us determine. I observed that the rich were more exposed to those temptations, which rank and pow er hold out to view ; that they were more luxurious and intemperate, because they had more fully the means o f enjoym ent; that they were more ambitious, because more in the hope o f success. The gentleman says my principle is not true; for that a poor man will be as ambitious to be a constable, as a rich man to be a governor:— But he will not injure his country so much by the party he creates (o support his ambition. The next object o f the gentlem an's ridicule is my idea o f an aristocracy; and he indeed has done me the honor, to rank me in the order.1’ If then I am

6 . 12.22

an aristocrat, and yet publicly caution m y countrymen against the en­ croachm ents o f the aristocrats, they will surely consider me as one o f their most disinterested friends. My idea o f aristocracy is not new:— It is em ­ braced by many writers on government:— I would refer the gentleman for a definition o f it to the honorable John Adam s, one o f our natural aristo­ crats .** This writer will give him a description the most ample and satisfac­ tory. But I by no means intended to carry my idea o f it to such a ndiculous length as the gentleman would have me; nor will any o f my expressions warrant the construction he imposes on them. M y argument w as, that in order to have a true and genuine representation, you must receive the middling class o f people into y o u r government— such as com pose the body o f this assembly. I observed, that a representation from the United States could not be so constituted, as to represent com pletely the feelings and interests o f the people: but that we ought to com e as near this object as possible. The gentlemen say. that the exactly proper number o f representa­ tives is so indeterminate and vague, that it is impossible for them to ascer­ tain it with any precision. But surely, they are able to see the distinction between twenty and thirty. J acknowledged that a com plete representation would make the legislature loo numerous: and therefore, it is our duly to limit the powers, and form checks on the governm ent, in proportion to the smallness o f the number. The honorable gentleman next animadverts on my apprehensions o f cor­ ruption. and instances the present Congress, to prove an absurdity in m y

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New York argument. Bui is this fair reasoning? There are many material checks to the operations o f that b ody, which the future C ongress will not have. In the first place, they are chosen annually:— What more powerful check! T h ey are subject to recah Nine states must agree to any important resolution, which will not be carried into execution, till it m eets the approbation o f the people

6.12.34

in the state legislatures. Admitting what he says, that they have pledged their faith to support the acts o f Congress: y e t, if these be contrary to the essential interests o f the people, they ought not to be acceded to: for they are not bound to obey any law . which tends to destroy them It appears to m e. that had asconomy been a motive for making the repre­ sentation small; it might have operated more properly in leaving out some of the offices which this constitution requires. I am sensible that a great many o f the common people, w ho do not reflect, imagine that a numerous repre­ sentation involves a great expence:— But they are not aware o f the real security it gives to an reconomical management in all the departments o f

6.12.25

government. The gentleman further declared, that as far his acquaintance extended, (he people thought sixty-five a number fully large enough for ou r State Assem bly; and hence inferred, that sixty-five is to two hundred and forty thousand, as sixty five is to three millions.— This is curious reasoning. 1 feel that 1 have troubled the com m ittee loo long. 1 should not indeed have risen again upon this subject, had not my ideas been grossly mis­ represented.

IT** Convention turned, on 24 June, to a consideration o f Article /, section 3, the constitution o f the Senate Mr. George Livingston moved the follow ­ ing am endm ent:' Resolved. That no person shall be eligible as a senator fo r more than six years in any term o f twelve years, and that it shall b e in the power o f the legislatures o f the several states to recall their senators. or either o f them, and to elect others in their stead, to serve fo r the remainder o f the time fo r which such senator or senators, so recalled, were ap­ pointed. " J

6.12.26

The honorable Mr. Smith observed, that when lie had the honor to address the committee on the preceding question o f the representation, he stated to them his idea, that it would be im possible, under (he constitution as it stands, to have such a genuine representation o f the people, as would itself form a check in the government: That therefore it became our duty to provide checks o f another nature. The honorable gentleman from NewY o rk had made many pertinent observations on the propriety o f giving stability to the senate. The general principles laid down, he thought were

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Melancion Smith ju st. H e only disputed the inferences drawn from them, and their application to the proposed amendment. The only question w as. whether the checks attempted in the amendment w ere incompatible with that stability which he acknow ledged was essential to good governm ent. M r. Smith said he did not rise to enter at present into the debate at large. Indisposition obliged him to beg leave o f the com m ittee to defer w hat he had to offer to them till the succeeding day. Convention adjourned

W e d n e s d a y , 15 June

Section third w as again read— when Mr. Smith resumed his argument as follow s. The amendment em braces tw o objects: First, that the senators shall be eligible for only six years in any term o f tw elve years; Second, that (bey shall be subject to the recall o f the legislatures o f their several states. It is proper that w e lake up these points separately. 1 concur with the honorable gentleman, that there is a necessity for giving this branch a greater stability than the house o f representatives. 1 think his reasons are conclusive on this point. But, Sir, it does not follow from this position that the senators ought to hold their places during life. D eclaring them ineligible during a certain term after six years, is far from rendering them less stable than is necessary. W e think the amendment will place the senate in a proper medium between a fluctuating and a perpetual body. A s the clause now stands, there is no doubt that the senators will hold their office perpetually; and in this situation, they must o f necessity lose their dependence and attachment to the people. It is certainly inconsistent with the established principles o f republicanism, that the senate should be a fixed and unchangeable body o f men. There should be then some co n ­ stitutional provision against this evil. A rotation I consider as ih c best possi­ ble mode o f affecting a remedy. The amendment will not only have a ten­ dency to defeat any plots, which m ay be formed against the liberty and authority o f the state governm ents, but will be the best means to extinguish the factions which often prevail, and which are sometimes so fatal in legis­ lative bodies. This appears to me an important consideration. W e have generally found, that perpetual bodies have either com bined in some scheme o f usurpation, or have been tom and distracted with cabals— Both have been the source o f misfortunes to the state. Most people acquainted with history will acknowledge these facts. O u r Congress would have been a fine field for party spirit to act in— That body would undoubtedly have suffered all the evils o f faction, had it not been secured by the rotation

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New York

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established b y the articles o f the confederation. I think a rotation in the government is a very important and truly republican institution. A il good republicans. I presume to say, will treat it with respect.15 It is a circum stance strongly in favor o f rotation, that it will have a ten­ dency to diffuse a more general spirit o f em ulation, and to bring forward into office the genius and abilities o f the continent— The ambition o f gaining the qualifications necessary to govern, will be in some proportion to the chance o f success. If the office is to be perpetually confined to a few , other men o f equal talents and virtue, but not possessed o f so extensive an influence, may be discouraged from aspiring to it. The more perfectly w e are versed in the political science, (he more firmly will the happy principles o f republicanism be supported. The true policy o f constitutions will be to increase the in­ formation o f the country, and disseminate the knowledge o f government as universally as possible. If this be done, w e shall have, in any dangerous em ergency, a numerous body o f enlightened citizens, ready for the call o f their country. A s the constitution now is. you only give an opportunity to tw o men to be acquainted with the public affairs. It is a maxim with m e, that ev ery man em ployed in a high office by the people, should from time to time return to them , that he may be in a situation to satisfy them with respect to his conduct and the measures o f administration. If I recollect right, it was observed by an lionor&ble member from N ew -Y o rk , that this amendment would be an infringement o f the natural rights o f the people.34 I humbly co n ceiv e, if the gentleman reflects m aturely on the nature o f his argument, he w ill acknow ledge its weakness. What is governm ent itself, but a restraint upon the natural rights o f the people? What constitution was ev er devised, that did not operate as a restraint on their original liberties? What is the w hole system o f qualifications, which lake place in all free governm ents, but a restraint? W hy is a certain age made n ecessary? W hy a certain term o f citizenship? This constitution itself. S ir, has restraints innumerable.— The amendment, it is true, m ay exclude tw o o f the best men: but it can rarely happen, that the state will sustain any material loss b y this. I hope and believe that w e shall a lw ays have more than two men. w ho are capable o f discharging the duty o f a senator. But i f it should so happen that the state possessed only tw o capable men. it will be necessary that they should return home, from time to tim e, to inspect and regulate our dom estic affairs. I do not conceive the state can suffer any inconvenience. T h e argument indeed might have some weight were the representation very large: But as the pow er is to be exercised upon only tw o men. the apprehensions o f the gentlemen are entirely without foundation.

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With respect to the second part o f the amendment, I would observe that a s the senators are the representatives o f the state legislatures, it is reason­ able and proper that they should be under their controul. When a stale sends an agent comm issioned to transact any business, or perform any service, it certainly ought to have a pow er to recall him .These are plain principles, and

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Melaocton Smith so far as they apply to the case under exam ination, they ought to be adopted by us. Form this governm ent as you please, you must at all events lodge in it very important powers: These pow ers must be in the hands o f a few men, so situated as to produce a small degree o f responsibility. T hese circum stances ought to put us upon our guard; and the inconvenience o f this necessary delegation o f pow er should be corrected, b y providing som e suitable checks. Against this part o f the amendment a great deal o f argument has been used, and with considerable plausibility. It is said if the amendment takes place, the senators will hold their office only during the pleasure o f the state legislatures, and consequently will not possess the necessary firmness and stability. 1 conceive. Sir, there is a fallacy in this argument, founded upon

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the suspicion that Ihe legislature o f a state will possess the qualities o f a mob. and be incapable o f any regular conduct. I know that the impulses o f the multitude are inconsistent with system atic government. The people are frequently incompetent to deliberate discussion, and subject to errors and im pnxlencies. Is this the com plexion o f the slate legislatures? I presume it is not, I presume that they are n ever actuated by blind impulses— that they rarely do things hastily and without consideration. (The state legislatures were select bodies o f men. chosen for their superior wisdom , and so orga­ nized as to be capable o f calm and regular conduct.]17 My apprehension is, that the power o f recall would not be exercised as often as it ought. It is highly improbable that a man, in whom ihe state has confided, and w ho has an established influence, will be recalled, unless his conduct has been notoriously wicked — The aigum cnls o f the gentlem an therefore, d o not apply in this case. It is further observed, that it would be improper to give the legislatures this pow er, because the local interests and prejudices o f the states ought not to be admitted into the general governm ent; and that if the senator is rendered too independent o f his constituents.1* he will sacrifice the interests o f the Union to the policy o f his state. S ir. the senate has been generally held up by all parlies as a safe guard to the rights o f the several states. In this view , the closest connection between them has been consid­ ered a s necessary. But now it seem s w e speak a different language— We now look upon Ihe least attachment to their states as dangerous— W e are now for separating them, and rendering them entirely independent, that w e m ay root out the last vestige o f state sovereignty. An honorable gentleman from N ew -York observed yesterday, that the states would alw ays maintain their importance and authority, on account o f their superior influence o ver the people.1* T o prove this influence, he mentioned the aggregate number o f the state representatives throughout the continent. But 1 ask him, how long the people w ill retain their confidence for two thousand representatives, who shall meet once in a y ear to make laws for regulating the heighth o f your fences and the repairing o f your roads? Will they not by and by be saying,— Here, w e are paying a great number o f

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men for doing nothing: We had better give up all the civil business of our state with its powers to congress, who are sitting all the year round: We had better get rid of the useless burthen. That matters will come to this at last, I have no more doubt than 1 have of my existence. The state governments, without object or authority, will so o d dwindle into insignificance, and be despised by the people themselves. I am. sir, at a loss to know how the state legislatures will spend their time. Will they make laws to regulate agricul­ ture? 1 imagine this will be best regulated by the sagacity and industry of those who practise iL Another reason offered by the gentleman is. that the stales will have a greater number of officers than the general government. I doubt this. Lei us make a comparison. In the first place, the federal govern­ ment must have a com pleat set o f judicial officers of different ranks throughout the continent: Then, a oumerous train o f executive officers, in all the branches of the revenue, both internal and external, and aJI the civil and military departments. Add to this, their salaries will probably be larger and better secured than those of any state officers. If these numerous offices are not at once established, they are in the power of congress, and will ail in time be created. Very few offices will be objects of ambition in the states. They will have no establishments at all to correspond with some of those I have mentioned— In other branches, they will have the same as congress. But I ask. what will be their comparative influence and importance? 1 will leave it, sir. to any man of candour, to determine whether there will not probably be more lucrative and honorable places in the gift of congress than in the disposal of the states all together. But the whole reasoning of the gentlemen rests upon the principle that the states will be able to check the general government, by exciting the people to opposition: It only goes to prove, that the state officers will have such an influence over the people, as to impell them to hostility and rebellion. This kind of check, I contend, would be a pernicious one; and certainly ought to be prevented. Checks in government ought to act silently, and without public commotion.*• 1 think that the harmony of the two powers should by all means be maintained: If it be not, the operation of government will be baneful— One or the other of the parties must finally be destroyed in the conflict. The constitutional line between the authority o f each should be so obvious, as to leave no room for jealous apprehensions or violent contests.31 It is further said, that the operation of local interests should be coun­ teracted; for which purpose, the senate should be rendered permanent. I conceive that the true interest of every state is the interest of the whole; and that if we should have a well regulated government, this idea will prevail. We shall indeed have few local interests to pursue, under the new constitu­ tion; because it limits the claims of the states by so close a line, that on their pan there can be little dispute, and iittie worth disputing about. But, sir. I conceive that partial interests will grow continually weaker, because there arc not those fundamental differences between the real interests of the

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Mclancton Smith several states, which will long prevent their coming together and becoming uniform. Another argument advanced by the gentlemen is. that our amendment would be the means of producing factions among the electors: That aspiring men would misrepresent the conduct of a faithful senator; and by intrigue, procure a recall, upon false grounds, in order (o make room for themselves. But. sir, men who are ambitious for places will rarely be disposed to render those places unstable. A tnily ambitious man will never do this, unless he is mad. it is not to be supposed that a state will recall a man once in twenty years, to make way for another. Dangers of this kind are very remote: 1 think they ought not to be brought seriously into view. More lhan one of the gentlemen have ridiculed my apprehensions of corruption. How. say they, are the people to be corrupted? By their own money? Sir. in many countries, the people pay money to corrupt them­ selves: why should it not happen in this? Certainly, the congress will be as liable to corruption as other bodies o f men. Have they not the same frailties, and the same temptations? With respect to the corruption arising from the disposal of offices, the gentlemen have treated the argument as insignificant. But let any one make a calculation, and see whether there will not be good offices enough, to dispose o f to every man who goes there, who will then freely resign his seat: for. can any one suppose, that a member of congress would not go out and relinquish his four dollars a day, for two or three thousand pounds a yew? It is here objected that no man can hold an office created during the time he is in Congress— But it will be easy for a man of influence, who has in his eye a favorite office previously created and already filled, to say to his friend, who holds it— Here— I will procure you another place of more emolument, provided you will relinquish yours in favor of me. The constitution appears to be a restraint, when in fact it is none at alL I presume, sir, there is not a government in the world in which there is greater scope for influence and corruption in the disposal of offices. Sir, I will not declaim, and say all men are dishonest; but 1 think that, in forming a con­ stitution. if we presume this, we shall be on the safest side.” This extreme is certainly less dangerous than the other. It is wise to multiply checks to a greater degree than the present state o f things requires. It is said that cor­ ruption has never taken place under the old government— l believe, gentle­ men hazard this assertion without proofs. That it has taken place in some degree is very probable. Many millions of money have been put into the hands o f government, which have never yet been accounted for; The ac­ counts are not yet settled, and Heaven only knows when they will be. I have frequently observed a restraint upon the state governments, which Congress never can be under, construct that body as you please. It is a truth, capable of demonstration, that the nearer the representative is to his constituent, the more attached and dependent he will be— In the states, the elections are frequent, and the representatives numerous: They transact

35*

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New York business in ihc midst of their constituents, and every man may be called upon 10 account for his conduct. In this stale the council of appointment are elected for one year— The proposed constitution establishes a council of appointment who will be perpetual— Is there any comparison between the two governments in point of security? It is said that the governor of this state is always eligible: But this is not in point. The governor of this state is limited in his powers— Indeed his authority is small and insignificant, com­ pared to that of the senate of the United States.

[On 26 June the convention reached section 8 o f Article l. dealing with she powers o f Congress, and M r. John Williams m oved that Congress should lay no direct taxes except when the impost and excise are insufficient to meet the public exigencies and then only after requisitions on the states have been refused or neglected. The follow ing day. Smith spoke as follow s.]

Friday, 27 June Section 8. was again read,— and 6.12.36

The hon. Mr. Smith rose.— We are now come to a part of the system, which requires our utmost attention, and most careful investigation. It is necessary that the powers vested in government should be precisely defined, that the people may be able to know whether it moves io the circle of the constitution. It is the more necessary in governments like the one under examination: because Congress here is to be considered as only part of a complex system. The state governments are necessary for certain local purposes; The general government for national purposes: The latter ougjht to rest on the former, not only in its form, but in its operations. It is therefore of the highest importance, that the line o f jurisdiction should be accurately drawn. It is necessary, sir, in order to maintain harmony between the gov­ ernments, and to prevent the constant interference which must either be the cause of perpetual differences, or oblige one to yield, perhaps unjustly, to the other. I conceive the system cannot operate well, unless it is so con­ trived, as to preserve harmony. If this be not done, in every contest, the weak must submit to the strong. The clause before us is of the greatest importance: It respects the very vital principle of government: The power is the most efficient and comprehensive that can be delegated; and seems in some measure to answer for all others. I believe it will appear evident, that money must be raised for the support o f both governments: If therefore you give to one or the other, a power which may in its operation become exclu-

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Melancton Smith sive; ii is obvious, that one can exist only at the will of the other: and must ultimately be sacrificed. The powers of the genera] government extend to the raising of money, in all possible ways, except by duties on exports; to the laying taxes on imports, lands, buildings, and even on persons. The individual states in time will be allowed to raise no money at all: The United States will have a right to raise money from every quarter. The general government has moreover this advantage. All disputes relative to jurisdic­ tion must be decided in a federal court. It is a general maxim, that all governments find a use for as much money as they can raise.11 Indeed they have commonly demands for more: Hence it is. that all. as far as we are acqumntcd. are in debt. 1 take this to be a settled truth, that they will all spend as much as their revenue; that is, will live al least up to their income. Congress will ever exercise their powers, to levy as much money as the people can pay. They will not be restrained from direct taxes, by the consideration that necessity does not require them. If they forbear, it will be because the people cannot answer their demands. There will be no possibility of preventing the clashing of jurisdictions, un­ less some system of accomodation is formed. Suppose taxes are laid by both governments on Ihe same article: It seems to me impossible, that they can operate with harmony. I have no more conception that in taxation two powers can act together, than that two bodies can occupy the same place. They will therefore not only interfere: but they will be hostile to each other. Here are to be two lists of all kinds of officers— supervisors, assessors, constables. A c. imployed in this business It is unnecessary that I should enter into a minute detail, to prove that these complex powers cannot oper­ ate peaceably together, and without one being overpowered by the other. On one day. the continental collector calls for the tax; He seizes a horse: The next day. the state collector comes, procures a replevin and retakes the horse, to satisfy the state tax. I just mention this, to shew that people will not submit to such a government, and that finally it must defeat itself. It must appear evident, that there will be a constant jarring of claims and interests. Now will the states in this contest stand any chance of success? If they will, there is less necessity for our amendment. But, consider the superior advantages of the general government: Consider their extensive, exclusive revenues: the vast sums of money they can command, and the means they thereby possess of supporting a powerful standing force. The states, on the contrary, will not have the command of a shilling, or a soldier. The two governments will be like two men contending for a certain prop­ erty: The one has no interest but that which is the subject of the con­ troversy: while the other has money enough to cany on the law-suit for twenty years. By this clause unlimited powers in taxation are given: Another clause declares, that Congress shall have power to make all laws necessary to cany the constitution into effect. Nothing therefore is left to construction, but the powers are most express. How far the state legisla-

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tures will be abie lo command a revenue, every man, on viewing the subject, can determine. If he contemplates the ordinary operation of causes, he will be convinced that the powers of the confederacy will swallow up those of the members, I do not suppose that this effect will be brought about suddenly— As long as the people fed universally and stroogiy attached to the state governments. Congress will not be able to accomplish it: If they act prudently, their powers will operate and be increased by degrees. The ten­ dency of taxation, tho* it be moderate, is to lessen the attachment of the citizens— If it becomes oppressive, it will certainly destroy their confidence. While the general taxes are sufficiently heavy, every attempt of the states to enhance them, will be considered as a tyrannical act, and the people will lose their respect and affection for a government, which cannot support itself, without the most grievous impositions upon them, If the constitution is accepted as it stands. 1 am convinced, that in seven years as much will be said against the state governments, as is now said in favour o f the proposed system. Sir, I contemplate Ibe abolition o f the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people: they will be undermined and gradually consumed. On subjects of this kind we cannot be too critical. The investigation is difficult, because we have no examples to serve as guides. The world has never seen such a government over such a country. If we consult authorities in this matter, they will declare the impracticability of governing a free people, on such an extensive plan.*4 In a country, where a portion of the people live more than twelve hundred miles from the center, 1 think that one body cannot possibly legislate for the whole. Can the legislature frame a system of taxation that will operate with uniform advantages? Can they cany any system into execution? Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions, which they cannot support, and of which their complaints can never reach the government. Another idea is in my mind, which I think conclusive egainst a simple government for the United States. It is not possible to collect a set of representatives, who are acquainted with all parts of the continent. Can you find men in Georgia who arc acquainted with the situation of NewHampshire? who know what taxes will best suit the inhabitants; and how much they arc able to bear? Can the best men make laws for a people of whom l hey are entirely ignorant? Sir. we hnve no reason to hold our state governments in contempt, or to suppose them incapable of acting wisely. 1 believe they have operated more beneficially than most people expected, who considered that those governments were erected in a time of war and confusion, when they were very liable to errors in their structure. It will be a matter o f astonishment to all unprejudiced men hereafter, who shall reflect upon our situation, to observe to what a great degree good government has

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Melancton Smith prevailed. It is true some bad laws have been passed in most of the states; but they arose more from the difficulty of the times, than from any want of honesty or wisdom. Perhaps there never was a government, which in the course of ten years did not do something to be repented of. As for RhodeIsland, 1 do not mean to justify her— She deserves to be condemned— If there were in the world but one example o f political depravity, it would be her’s: And no nation ever merited or suffered a more genuine infamy, than a wicked administration has attached to her character. Massachusetts also has been guilty of errors: and has lately been distracted by an internal convulsion. Great*Britain, notwithstanding her boasted constitution, has been a perpetual scene of revolutions and civil war— Her parliaments have been abolished: her kings have been banished and murdered. I assert that the majority of the governments in the union have operated better than any body had reason to expect: and that nothing but experience and habit is wanting, to give the stale laws all the stability and wisdom necessary to make them respectable. If these things be true. 1 think we ought not to exchange our condition, with a hazard o f losing our state constitutions. We all agree that a general government is necessary: But it ought not to go so far, as to destroy the authority of the members. We shall be unwise, to make a new experiment in so important a matter, without some known and sure grounds to go upon. The state constitutions should be the guardian* o f our domestic rights and interests; and should be both the support and the check of the federal government. The want o f the means o f raising a general revenue has been the principal cause of our difficulties. 1 believe no man will doubt that if our present Congress had money enough, there would be few complaints of their weakness. Requisitions have perhaps been too much condemned. What has been their actual operation!?] Let us attend to ex­ perience, and see if they arc such poor, unproductive things, as is com­ monly supposed. If I calculate right, the requisitions for the ten years past, have amounted to thiny-six millions of dollars; of which twenty-four mil­ lions, or two thirds, have been actually paid. Does not this fact warrant a conclusion that some reliance is to be placed on this mode? Besides, will any gentleman say that the states have generally been able to collect more than two thirds of their taxes from the people? The delinquency of some states has arisen from the fluctuations of paper money, Ac. Indeed it is my decided opinion, that no government in the difficult circumstances, which we have passed lhro\ will be able to realize more than two thirds of tbe taxes it imposes. 1 might suggest two other considerations which have weight with me—There has probably been more money called for, than was actually wanted, on the expectation of delinquencies; and it is equally prob­ able, that in a short course of time the increasing ability of the country will render requisitions a much more efficient mode of raising a revenue. The war left the people under very great burthens, and oppressed with both public and private debts. They are now fast emerging from their difficulties.

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New York Many individuals without doubt still feel great inconveniences: but they will find a gradual remedy. Sir. has any country which has suffered distresses like ours, exhibited within a few years, more striking marks of improvement and prosperity? How its population has grown; How its agriculture, com­ merce and manufactures have been extended and improved! How many forests have been cut down: How many wastes have been cleared and cultivated; How many additions have been made to the extent and beauty of our towns and cities! ] think our advancement has been rapid. Jn a few years, it is to be hoped, that we shall be relieved from our embarrassments; and unless new. calamities come upon us, shall be flourishing and happy. Some difficulties will ever occur in the collection of taxes by any mode whatever. Some states will pay more; some less. If New-York lay9 a tax, will not one county or district furnish more, another less than its propor­ tion? The same will happen to the United States, as happens in Ncw-York. and in every other country.— Let them impose a duty equal and uniform— those districts, where there is plenty of money, will pay punctually: Those, in which money is scarce, will be in some measure delinquent. The idea that Congress ought to have unlimited powers, is entirely novel; 1 never heard it. till the meeting of this convention. The general government once called on the states, to invest them with the command of funds adequate to the exigencies of the union: but they did not ask to command all the resources of the states—They did not wish to have a controul over all the propeny of the people. If we now give them this controul. we may as well give up the state governments with it. 1 have no notion of setting the two powers at variance; nor would I give a farthing for a government, which could not command a farthing. On the whole, it appears to me probable, that unless some certain, specific source of revenue is reserved to the states, their governments, with their independency will be totally annihilated.1 1- Cf. Henry 5.16.6. 2. Set Robert Livingston. Elliot 11, 2:2-13; sec The Federalist nos. 6-8 and refer­ ences in Ccntmel IV. 2.7.91 **• 43: Federal Fanner 1, 2.8.J n. 4; Plebeian 6,11.5 n.6. 3. Hamilton replied. Elliot II. 230-31. Cf. the order o f the argument in The Federalist: the utility o f union: the defects o f the present Confederation; the necessity of ft government at least as energetic as the one proposed (no. 1.6-7). Livingston had followed The Federalist in beginning with the desnabiKly o f union and moving to the fundamental insufficiency of the Articles o f Confederation. Elliot H. 208-16 4. Livingston, Elliot If. 214. 5. Livingston had argued "'that the old Confederation was defective in its principle, and impeachable m its execution, as it operated upon states m their political capacity, and not upon individuals: and that it carried with it the seeds o f domestic violence, and tended ultimately to its dissolution. . . (T]he powers which were, by commoo consent, intended to be vested in the federal head, had either been found deficient, or rendered useless by the impossibility of canytogthera into execution, as the principle o f a league o f stales totally separate and independent;— secondly, that if the principle was changed, a change would also be necessary m the form o f the government; but if we could no longer retain the old principle o f the confederacy, and were compelled to change ils form, we were driven to the necessity o f creating a new constitution. and

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Melancton Smith could find no place to rest upon in the old Confederation. . . . " Elliot II. 224—15; 01, 309, and Senate, 189; Meloacton Smith on, 354; between states, not "people.'* 2*97-98. 304 Confederation (U.S.): borrowing powci of, 151; Federal Farmer on. 35; for­ eign options of. 304-5 i Robert R. Livingston cm reform of, 356 n. 5; states retaining sovereignty under, 282; unlimited revenue power* not needed by, 147-48 Congress (federal legislature) — borrowing power of, 150-51 — Brutus cm. 122-27 — corrupt members ol, 128-29 —financial problems under present systern. 202-3 — general good v. particular interests in, 2B3, 292 n. 7 —and granting of exclusive charters, 239-40 — power of: to raise and support armies. 50-52,91-92.94, 98 n. 31. 151; to regulate trade. 239. 253 n- *5 — powers of purse and sword vested in: Brutus on, 136; Federal Farmer on. 91-92; Patrick Henry on. 322-23. 325, Pennsylvania Convention Minority on. 2to; Melancton Smith on, 337 — power* under present system. 70 —secret proceedings of, 320-21. 323 —and standing army under present sys­ tem. 156-58 — state governments v., 17-18. 144-45. 236 — Supreme Court superior to, 184-66. 196 r>. 110 — taxing powers of; Agrippa on, 244; Brutus 00. 135-50; Federal Farmer on, 93-94; Patrick Henry on, 309-10, 321-22; Impartial Examiner on, 28384, Pennsylvania Convention Minority' on. 207. 210-11 — unlimited power under plan: Brutus on. 133-36. 151. 170; Federal Farmer on, 90-91: The Federalist on, 193 n 42; Impartial Examiner on, 275; Pennsylvania Convention Minority on. 209-13

Connecticut, popular election of dele­ gates lo Congress. 70 conscientious objectors, lack of provi­ sion for in proposed system, 220 consolidation — Brums on. 103 — 1v, confederation: Agrippa an, 235-36, 247; Anti-Federalists on, 252 n. 10: Brutus on, 109-16. 133; Federal Farmer on. B7-95; Federalists on, 252 n. 10; Patrick Henry on, 294. 297-98. 324-26; Impartial Examiner on, 28990; James Madison on. 327 n. 40; [Maryland| Farmer on, 259; Pennsyl­ vania Convention Minority on, 201. 2 0 9 -13

— House of Representatives, 45 — as object of Constitution. Brutus on, 170, 186, 235-36; Federal Fanner on. 32-38; Patrick Henry on, 296-98, 305, 324; Impartial Examiner on, 280-81, 289; Melancton Smith on. 334 — partial. 3B. 96 n. 9 — pervading whole Constitution. 213 — and Senate, 189 — and Senate representation. 124 constitution, British: checks and bal­ ances in. 319-20, founded on selflove. 319; judiciary in, 53; purse and sword, separation of powers of, 919*. 325; responsibility in. 312; size of House of Commons, 126-27; veto power in. 276 Constitution, federal: adoption or rejec­ tion in toto, 206, amendment of. 3014, 307-8; eleventh amendment to, 196 n. 102; export duties, 149-50: falling between two stools of simple or com­ plex government, 257; founding gen­ eration's view of. 1; language of. on powers and rights, 299 Constitutional Convention: acceptance of restrictions on federal government. 154, Federal Fanner on, 62-63, 68; Patrick Henry on. 296-97; Impartial Examiner on, 286; origin and purpose of. 203; secrecy of, 204 conventions, slate: and amendment of federal Constitution, 61-65; Matyland. 255-56; New York. 329-30, 330 n. 1, 331; Pennsylvania. 204-9: Vir­ ginia, 273. 293-95 Corwin. Edward S., 108 n. 3 Countryman from Dutchess County, 97 nn. 20 and 22 courts, stale, under Confederation. 18081 Coxe, Tench, 4- Set also American Citizen

3&7

Index Coxe, William, 268 credit, public, Agrippa on, 241-4} Cromwell, Oliver, 263; use of array by. tS8 Cro&sLcy, William W .. 24-25. 31 nn. 6 and n Curtis. George Ticknor. 273. 293 debt, national, slate contribution) toward, 344 Deity, 261, 291 DeLolme (De Lome), Jean Louis, 85, 100 n I2t; on British constitution. 265-66; on freedom of the press, 86. 100 n. i}2 democracy (common people); and House of Representatives, 44; in* Wrests of v interests of aristocracy. 7b-77, 34^ 42. 345 Democratic Federalist (pseud.), on appeals to Supreme Court, 196 n 103 DePauw. Linda Grant, 103 despotism, compatibility of with republi­ can forms, 282 Diamond, Ann Stuart, 106 n. 97 Dickinson, John, on jealousy of liberty, 60 dictatorship, American and Roman, 316 economy, domestic, 316, 326 n. 23 elections — congressional control over: Brutus on. 131-33; Patrick Henry on. 3 11; Penn­ sylvania Convention Minority on, 211 —I 2

—{Maryland} Farmer on. 264 — states' loss of control over. 132 elections, British, 249 Elisha (prophet), 133 EUioi. Jonathan, 295 Ellsworth, Oliver See Landholder England; example o f monarchy. 298; excises in, 284; judicial appeals in, 216; judiciary in. 183-84 (Maryland] Farmer on, 258-60; mixed govern­ ment of, 258; and open government. 323, standing army in, 115 Europe, balance of power, 260 European governments, militaristic na ture of, 146-47 European nations, possibility of war with, 148-49 excise laws, 384 export duties. 149-50 ex post facto clause, Cemincl on. it cx post facto laws, ui Virginia, 307 Farmer (pseud.). Sec [Maryland] Farmer

Federal Farmer (pseud.), 4 ,7 ; on adequate representation, 74-79; on amendments to plan by stale conven­ tions, 61—65: on balanced govern­ ment, 77- 79, on bill of rights, 57-58, 79-86; on character o f federalists, 6 j63, 67; on constitutional amendment, 59-60; on equal representation of slates in Senate. 192 n. 26; essays summarized, 26-30; 00 federal judici­ ary, 52-54; on a federal republic, St 95; on force v. persuasion. 73-74; on freedom o f the p jc« . 85-86; on House of Representatives, 44-45; identity of, 14-25, 31 nn. 6 ,1 1 , 15 and 17; on jurisdiction of federal courts, 196 n 99; on jury trial. B2-J33; on partial consolidation, 38,96 n. 7; on power of people in small v. large states, 95; on powers of purse and sword vested in one authority, 91-92: representation as major theme. 97 n. 11; representation, free and equal, 39, 61. on Senate, 45-46; on taxation power. 48-50, 54; on treaty-making power, 55; on unalienable rights, 71 federal government: executive influence in. 49, 98 n. 26; extension of powers of, 129, 193 n. 34; unlimited powet of, n o Federalist, The: administration of state and federal governments compared, >94 n. 63; Brutus essays v., 103; on causes of war. 194 n. 61, on com­ merce as producer o f friendship and peace, 353 n. 1$; fundamental unity of, disputed, 5 n. 8; on Greece, Rome, and Carthage, 252 n. 4; and Robert R. Livingston, order of argu­ ment, 356 n. 3; money as viial princi­ ple o f body politic, J93 n. 45; on necessary and proper clause, 171. 196 n. 98; protection and defense and powers of federal government, 145; on representation, 357 n. 16; on standing army, 156-57, 159-6} Federalists: Agrippa on. }32; aristocrats as, 62; Ccotinei on, 9. to -it; charac­ ter of, 62-63, 671 on excessive jealousy of chosen rulers, 359 n. 32, on large republic v. confederacy of smaller states, 235-36, 252 n. 10; mo­ tives of. 251-52: rhetorical advantage in separatist charges against AnliFederali&ts, 273, 374 n. 2; on stale bills of rights remaining in force, 192 n- 33; tyranny of the many, 193 n. 31; vision) of glory among, 325 a. 11 federal officials (officers), multiplication of, 321. 250. 334

368

Index federal republic: Federal Farmer on, 87-95; lust for power and. 290, 291 n. 15; present system as that of a, 24344; success of, in history. 333-34; waning of revolutionary ardor in a, 290-91. See also confederation (con­ federate government) Federal Republicans. 339, 330 n. 2 Findley, William, al Pennsylvania ratify­ ing convention, 200 n. 2 fines, excessive, 207 fishing rights. 207 Ford, Paul Leicester, 12 n. 4; on iden­ tity of Brutus. C03 Founding Fathers. Anti-Federalists' place among, 1 France:: {Maryland} Farmer on, 262: treaty connections with. 29O. 304 Franklin, Benjamin; Cemine! on, 14-1S* 21 n 2. delegate to Constitutional Convention. 203, 222 n t; on the ex­ ecutive. 191 n. J3: and Pennsylvania politics, 199 freeholders, referral of legislation to. 271 Freeman (pseud ); on preamble. 323 n. 15; reply 10 Pennsylvania Convention Minority, 201 n. 1 general welfare clause, and taxation. 142-43

Germany (Holy Roman Empire): exam­ ple of confederation. 334; monarchy in. 265; powers of confederation. 89 Gerry, Elbridge cited by Agnppa, 229; Federalist attacks on, 68. 99 n 52 Gorham, Nathaniel, 192 n. 29 government: chief object of, 146-47; force v persuasion. 73-74; need to limit power of, 118-19. 191 n. 16; simple v. mixed or complex, 257-60; simple v. splendid, 305 Grayson, William, 294 Great Britain: direct taxation in. 144; and diversity of American colonies, 236: exclusive charters in, 239-40, glorious forefathers of American liberty, 305; possible war with, r6o; representation in, 337; restrictions on trade with U S., 251. See alio En­ gland Greek states, ancient: Agrippa on, 230; Amphictionic [sief council, powers of. 89; corruption and combination, 343; loss of liberty in, 299; requisitions on member elates. 89; small extent of, •i3 habeas corpus; and bill of rights. 85; protection for, 154

Hamilton, Alexander. 4, 192 n. 29: on American aristocracy, 357 n. 17; on division of powers between general and state governments, 359 n 31; at federal convention, 329; on future im­ portance of states. 349; at New York convention, 331-32; on resources of general government, 359 n. 33, and Melancton Smith on large republics. 3S9 n. 34; and Melancton Smith on size of House of Representatives, 339. 357 n. 14; and Melancton Smith on stare legislatures as checks on Congress, 350. 35B n. 30 Hanson, Alexander Contee. 256 n, 3, 258. See also Aristides Harding, Samuel Bannister; on Brutus. 103; on Pennsylvania ratifying con­ vention, 199. 200 n. t Ha2ael (biblical king), 132 He!vidius Priscus, 32 n. 18 Henry. Patrick on amendment of fed­ eral Constitution. 301-4; on benefits of present system. 295-97, 299, 3067. 318: character of, 393. 295 nn. 1. 2, and 4: on checks and balances, 319-20, 325; on consolidation v con­ federation, 294. 296-98. 304-5, 324; and design for a Southern Confeder­ acy. 273. 273 n 1; devotion to Union. 293. 309, 314. later career as a Feder­ alist, 293, 295 n 2; and possible concerted southern action against rati­ fication, 255; on responsibility and federal Constitution. 312, 322; sum­ mary of arguments before Virginia convention, 294-95 high crimes and misdemeanors. 185 Holland: example of confederacy, >98, 334; exclusive charters in. 239: lack ot strong central power in, 251; requisi­ tions by confederation, 89,91: ruined by Siadtholder, 316; treaty connec­ tions with. 304. See also Netherlands, United Provinces of the Hopkmson, Francis, ix, zot-2 n- 1 House of Commons: bribery in. 303. 314: size of. 126-27, 314 House of Lords, check on King and Commons. 319 House of Representatives — Ceminel on. 19 —democracy and, 44 —election of members, 207 —Federal Farmer on, 44~45 —powers of, v. Senate. 47 — size of: Brutus 00, 124-31; Federal Farmer on, 74-79; Patrick Henry on, 299-300: Impartial Examiner on. 276; Pennsylvania Convention Minority

3*9

\ Index House of Representatives (cont) on, 207, 214-15; slaves and tepresentatioa formula. 122-24. 336; Melancton Smith on, 335-43 hunting rights, 307 Impartial Examiner (pseud.), 4; on arbitrary v free governments, 275, 278-80; essays summarized, 275-76; on supremeey clause, 280-82; on Supreme Court, 285 impeachment, of judges. 185 import duties, central government's con­ trol o(. 149 Indians, American, war with, 148. too Ingersoll, Jared, and Pennsylvania poli­ tics, 199 Israel, ancient, example of, 335 janissaries. 154, 219 Jefferson, Thomas, 330 n. 3; on Patrick Henry. 295 n. 1; and John Francis Mercer, 257 Jeffrey. William, 191 n 2, 192 rt 17. 195 " 87 Jensen, Merrill, 96 n. 7; and reassess­ ment of Anti-Federalists, 1-2 judges; election of. r88; removability or, 184-85; tenure of, 183-85 judicial power, nature and extent of. 163-73 judicial review, Brutus and Publius on. •68. 173, 196 nn. 97 and rot judiciary, English, extension of jurisdic­ tion by, 167, 172 judiciary, federal: and abolition of state governments, 186; Agrippa on, 23638; bill of rights and, 85; Bratus on, 103.162-88; extension of jurisdic­ tion by, 166-67; and extension of legislative authority, 168-70; federal Farmer on. 52-54, 98 n 33; Patrick Henry on, 309-10; Pennsylvania Con­ vention Minority on. 208, popular control of, 187-38; suhver&ion of stales, 165, 171-77, 174-76 jury trial: and appeals to Supreme Court, 178, 182; Brutus on. 120, Ccntinel on. 8 ,13, 20; Federal Fanner on. 39-41, 82-83; Impartial Examiner on, 285-86; [Maryland] Farmer on, 259; Pennsylvania Convention Minor­ ity on, 207. 216; of vicinage, 40. 207, *37-38 Kcnyoo. Cecelia, 4 King, Rufus, 192 n. 29 KonkJc, Burton Alva, 8, 12 □. 4 Koran (Alcoran), 154

370

Lamb. John. 31 n. 6. 329. 330 n. 2 Landholder (Oliver Ellsworth), 99 n 52, 229-30. 252 n. 3 Lansing, John, Jr.. 329, 332, 358-59 n. 30 "law and equity," meaning of, 164-65 Lee, Richard Henry, 96 n. 5; abuse of, 68. 99 n. 52; and Federal Farmer, 2425,31 nn. 6, n . 15 and 17; v. John Francis Mercer and [Maryland! Farmer, 258; and Melancton Smith, 331-32; at Virginia convention, 273 legislatures, state; control over senators. 348-49; and taxation by federal gov­ ernment, 94. 207 Livingston, George. 346 Livingston, Robert R., 332, 359 n 3; on forced rotation of senators, 358 ti 26; and Melancton Smith on natural aris­ tocracy, 358 n. 23; and Melancton Smith on representing the feelings of the people. 344. 35^ n. ** McDonald, Forrest, 31 n. 3. 200 n 2 McKean. Thomas: on bill of rights, 192 n. 22; at Pennsylvania convention, 25* Machiavclli, Niccold. [Maryland] Farmer on, 270 Madison. James, 4, 194 n 60; and Pat­ rick Henry on loss o f liberty, 325 n. 5; and Patrick Henry on mixed nature o f Constitution, 324,327 n. 40; 00 motives of Patrick Henry, 273: and John Francis Mercer, 257; on military and taxing powers. 322. 327 n. 39; and Pinckney on freedom, commerce, and tranquillity, 252 n 6 Magna Charts, 119; ancient privileges confirmed by, 69; natural and un­ alienable rights recognized in, 81 majority, required as check to power of CongTess, 94 Marshall, John: elected to state conven­ tion. 274 n. 3; and Patrick Henry. 326 nn. 13 and 26 Martin, Luther, 11; at Maryland con­ vention. 255 Maryland, political system of, 255 Maryland convention, 255-56, 256 n, 3 [Maryland] Fanner. 4, 192-50 n. 29; on bill o f rights, 258; comparison of En­ gland and Switzerland, 365-70; on ex­ ecutive for life, 265; on governments o f simplicity and equal right, 262, 269; identity of, 257-5*, *6t nn. 1-4; on representation. 258-60, 263-66, 270-73; on simple v. mixed or com­ plex government, 257-60. 262 Mason, George; abuse of 68,99 n. 52;

» %

Index on bill ol rights. 292 n. 6. on detente against invasion. 194 n 58; and Pat­ rick Henry on military threats to U.S., 325 n. 6; on large and small re­ publics. 317. 326 n. 26; at Virginia convention, 273 Massachusetts: interest m maritime affairs, 240-41. lack of able AntiFederalist spokesman. 225. 226 n. 3; prosperity of, under present system, 232-34; veto power in. 73 Massachusetts convention, 225-26 Mercer, John Francis. 192 n, 29, and [Maryland] Farmer, 257-$#. 261 nn. >'4 merchants, as advocates of liberty, 77. too n. 65 Mifflin, Thomas, 11 military force —as chief object of European govern­ ments, 146 — danger to free republic. 291 — defense against. 303-4 — necessary to prevent anarchy under Constitution, 42-43 —v. persuasion as a principle of govern­ ment: Anti-Federalists on. X94 n. 73; Brutus on, 115-16. 130-31.156; Federal Farmer on, 73-74; Pennsylva­ nia Convention Minority on, 219-20 — power of Congress to exert. 50-51, 219-21 militia: federal control of, 300, 303-4; Pennsylvania Convention Minority on. 219-21; v. standing army. 2^5 Mohammedanism, 135 money, paper: controversy in Maryland over, 255; Patrick Henry on, 315; misuse of. by state governments, i&>81 monopolies, right of Congress to grant, 239-40 Monroe. Junes, on delineation of stale and federal powers. 193-94 n. 56 Montesquieu, baron de (Charles de Secondat): on confederated republic, 334; on constitutional aristocracy, 76, on delegation of power, 320; on elec­ tions, 212; on free agents, 123. 192 n. 24; on legislation and taxation. 16; [Maryland] Farmer on. 262; on popu­ lar legislatures in free states, 75. on separation of powers, 217-18 Morris. Gouverneur. 192 n. 29, 358 t>. 25 Morris, Robert, 11; financial affairs of, 7

necessary and proper clause: Brutus on. tto. 1 1 2 , 1 3 3 - 3 6 . i s o . 16 6 , 1 7 1 . 1 7 5 ; Ccntiitel on, 9; Federalist and AntiFederalist views on, 191 n. 7 Netherlands, United Provinces ol the: checks cm central government in, 94; treaty connections with. 296. Set also Holland Nerins. Allan. 293 New Hampshire, ratification by, 274 n. 5 New Hampshire convention, 226 n. 4 New York, veto power in, 72 New York convention, 329-30, 330 nn. 1 and 4; paragraph-by-paragraph con­ sideration of proposed Constitution. 332; quality of debate. 33* nobility, titles of, prohibition of. 82 Nova Scotia, 251 Old Whig (pseud.), on Switzerland, 272 n. Faca, William, at Maryland convention, 255. 256 n 3 Pascal, BLaise, 261 Paul (apostle), 131 Pendleton, Edmund, 325 nn. 8 and to, 326 n. 19 Pennsylvania: "Constitutionalists” v. “ Republicans.” 199. ratification ol Constitution in, 190-200. representa­ tion of, 2(9 Pennsylvania Assembly, and state con­ vention. 204-5 Pennsylvania Convention. 204-6 Pennsylvania Convention Minority: Samuel Bryan » author of Address, 201, 302 n. 2; on Congress and mili­ tary force, 219-21; 00 consolidation as object of Constitution. 209-13; propositions of, 10 state convention, 206-8, on representation, 214-15; similarities with Ccntinel, 202 n. 2. 223 nn 9 and 14; summary of Address, 201 [Pennsylvania! Farmer, 201 n. I people, power of, in small v large states, 95 Peter the Great, 146-47 PhUadelphicnsis (pseud ), 327 n. 32 Philips, Josiah, 307, 326 n. 13 Pinckney. Qwries, on freedom, commerer, and tranquillity, 252 n. 6 Pickering, Timothy, 24-25; on judiciary, 9811 33

Plebeian (pseud.), 292 nn. it and 14. 325 « 356-57 n 5 Poland, ruin of, 265 Pope. Alexander. 33,96 n. 3

nature, state of. insecurity of human rights in, 118 371

1

Index posi office, circulation of newspapers, io. 11, 201 n. i preamble to federal constitution: exten­ sive legislative powers implied by, I33“341 judicial interpretation of, 166, 160-70; reference to "the people,” 297- 98 - 304 president — comparison of, with a king: Patrick Henry on, 308. 311,320; P h i l adelpJiiensis on, 327 n. 32 — selection of, 97 n. 13 — Turkish Grand Seignior and, 3t3 press, freedom of; and bill of rights, 8586; C-entinel on, 8, 13, 19—20; Federal Farmer on, 59, 85-86: Pennsylvania Convention Minority on, 207 Prussia, 296 Publius —o n annihilation o f state governments, 193 nn. 44 and 46-47 — and Brutus: on diversity within a re­ public, 191 n. 10; on judicial review. r68. 173, 193 nn 97 and 101; on need to limit power of government, 191 n. 16, on separation of powers, 187, 196 n. 112, on standing army, 193 n at — On concurrent taxing powers of fed­ eral and state governments, 98 n. 39 — on delineation o f state and federal powers, 193 n 56 — on "equity” jurisdiction of federal courts. 196 n. 89 — on executive influence. 98 n. 16 — and Federal Farmer, 97 nn 14, 18, and 23, 98 nn. 26 and 29 — on federal judiciary, 195 n. 87 —on a federal republic. 100 n 123 —on growth of imports, 149 — and Impartial Examiner on general good v. particular interests in Con­ gress, 282. 292 n. 7 —on offensive war. 194 n. 59 — on people's right to alter or abolish established constitution. 221 n 4 — on remote slates, 97 n. 14 — 00 standing army, 156-57, 195 n, 76 —on superiority of judiciary over legis­ lature, 196 n. 110 — on trial by jury, 222 n. 5 Pultency (Pultney), William, carl of Bath, on standing army, 152-53 punishments, cruel and unusual. 207 purse and sword, wisdom of separating powers of, 91-92 Quakers, 9 quartering of troops, and bill of rights, 85

Randolph, Edmund. 3; on an American Diciaior. 316; on bill of rights, too n. 118, 199 n. 22; and Patrick Henry on iosiah Philips case, 307, 326 n. 13; and Patrick Henry on jtrong govern­ ment. 306. 325 n it; and Patrick Henry on Virginia legislature, 315, 326 n. 22: on separate confederacies, 3*7 recall, of senators by state legislatures, 346-49 religious freedom: Federal Farmer on, 58; Pennsylvania Convention Minoriry on, 206-7 representation — adequate: Brutus on, 103; Federal Farmer on. 74- 79; Alexander Hamil­ ton on, 357 n 13; Pennsylvania Con­ vention Minority on, 214-15. 218-19. Publius on, 223 n. 17; Meiancton Smirh on. 335-38 — by classes: Brutus on, 125-26; Federal Farmer on. 75; [Maryland] Farmer on, 264; Publius on. 99 n. 60, Meiancton Smith on, 340-42 — equality of. 39 — fair and equal. 74, 128, 340-44 — of feelings of the people. 344, 358 n. 22 — in Great Britain. 337 — Impartial Examiner on, 276 —In a large extended country, 114-16 — |Maryland] Farmer on, 258-60. 36366, 270-73 — rationale for. 124, 192 n 27 — Meiancton Smith on, 331 —thorough discussion in New York convention, 331 republics, large: aggrandizement o f ex­ ecutive officers. 116,191 n. 13; Agnppa on. 235-36; Brutus on, 11316. diversity of constituent parts as a problem, 114-16; Federal Farmer on, 92, 95; Alexander Hamilton on, 359 n. 34; heterogeneity of, 235-36, 252 n n , Pennsylvania Convention Minority on. 209 republics, small: Brums on, 103,113— 14; Federal Farmer oc, 95; George Mason and Edmund Randolph on,

327 n. 26 Republics (pseud.), 97 n. 23 requisitions, congressional: amendment to require. New York convention, 353. made on states or individuals, 88-90; Edmund Randolph and Patrick Henry on, 32 j; submission lo state legislatures, 94 responsible government: Ccotinel on, 8.

372

Index 16; proposed Constitution and, 21819 responsibility, principle of, 196 n. 112, Revolutionary War: effects on govern­ ment, 90; financing of, 9 Rhode Island: paper money system, t8t; popular election o f delegates to Congress. 70 rights: unalienable. 71, Si; unalienable v. constitutional, 70, 99 n 55 Roman Empire, militia defense and. 285 Roman Republic: Agnppa on weakness of, 230; small extern of, 113; and standing armies. 158; subjection of, to tytanny, 299 Romans, ancient. Brutus and Cassius. 269 Romans, king of the, 165 rotation (of officials) in Senate. 189-90 Rudolph of Hapsburg, 265 Samuel (prophet). 335 San Marino, republic of. 209.172 n. 53 schools, few republicans produced by, 77. 100 n. 65 search and seizure, unreasonable pro­ tection against, 207 sedition, suppression of under present system, 231-32 Senate, federal: Brutus on. 188-91; Ccntinel on, 19; equal representation o f states in. 124. 189. 192 n. 26; Fed eral Farmer on, 45-46; mixture of legislative, executive, and judicial powers in. 190-91; power* ol, v. House, 47; proposed limitations on members, 346-49. 351; rotation in office. 189-90; term of office, 189 separation of powers: Brutus and Pub­ lius on, 187. 196 n. 112. Pennsylvania Convention Minority on. 208, 217-18, and Senate, 190-91 Shays rebellion. 225. 231.152 n. 8 sheriffs, abuses of, 309-10 Sherman, Roger, 194 n. 60; on state bills of rights, 192 □. 23 Shipton. Clifford K., 229 n. 2 slavery: Brutus on. 123-24; Mclancton Smith on, 336 slaves, allowance of representatives for 122-34. 33b

Smilie, John. 195 n. 87; at Pennsylvania ratifying convention, 200 n. a Smith, Mclancton on adequate repre­ sentation, 335-43; on annihilation of stare governments, 354-56; as author

of Brutus essays, 108 n. 8; on corrup­ tion in federal government. 342-43. 351; dominant Anti-Federalist in New York debate, 330; on future decline of states, 349-50, at New York con­ vention, 331-32; and Plebeian essays, 332 n. 1; on proposed amendment limiting senators. 347- 49. 351; on rep­ resentation of middling class, 340-42, 345; summary of speeches before New York convention, 331-32 South Carolina. Constitution ratified by. 273 southern confederacy. 273 southern states, aristocratic character of politics in, 273. 274 n. 3 sovereignties, dual. 281 Spain: possible war with. 160: treaty connections with, 29b. 323 Spanish America. 13s speech, freedom of, 207 standing array: Agrippa on. 238; AmiFederalists on. 194 n. 66; Bratus on, 151—53, 154-62; Brutus and Publius on. 192 n 21; defense against. 303; in England, 115; Federalists’ denial of provision for. 194 n. 67; in a free re­ public, 115-16; Impartial Examiner on. 284, Pennsylvania Convention Minority on. 207, 219-20; Mr Pultney quoted on, 152-53 stale constitutions: diminished by fed­ eral Constitution, 281-82: 349-50; re­ pealed by federal Constitution, 121 state governments — annihilation of: Agnppa on, 239; Bra­ tus on, 110-13. n 6, 136-40. 144-45. 167-68, 186-87; Patrick Henry on, 298. 3°9 . 3 *5 . 3*4; Impartial Exam­ iner on, 281-82, 288; Pennsylvania Convention Minority on, 209-13. 221; Mclancton Smith on, 354-56 —under Articles of Confederation, 7173 states: bills of rights in various, 119. i2 i, 192 n. 23; confederation between states not "people," 297-98. 304; equal representation in Senate, 124, 189, 192 n. 26; and federal republic, 87-95; powers reserved to, 208; and requisitions under Articles of Confed­ eration. 88-92; suits by individuals against, 171-76 Steiner, Bernard. 255, 256 n. 2 Strafford, Earl of (Thomas Wentworth), 166 Sulla (Sylla), L Cornelius. 263 Sumpter, Thomas. 273 supremacy clause, 17; Agnppa on, 237,

373

Index Supremacy clause Icum ) 252 n. 13, Brutus on, lio . Impartial Examiner on, 280-82 Supreme Court, federal — appellate jurisdiction of. Brutus on. 176-82; Federal Farmer on. 53-54; Impartial Examiner on. 285; Pennsyl­ vania Convention Minority on. 21516 — and cases involving foreign ambassa­ dors. 176 — criminal eases, appeals in. 177 — extensive powers of. 17. 182-83 — high cost of an appeal to. ifio — imperial jurisdiction of. 285 — interpreter of Constitution, it. 16465, 185-86 — original jurisdiction of, 176. 285 — superior to legislature. 184-86 Switzerland confederation of dissimilar states, 313; example ol good govern­ ment, 260. 267-70; [Maryland! Farmer on virtues of. 267-70 Sydney (pseud ), 103 taxation: amendment to limit power of Congress. New York convention, 352-56; concurrent powers ol state and federal governments, 50, 98 n 29; and continental v state debt. 244. direct, by federal government. 303, 309. direct, federal v state authority over. 283-84. direct. Pennsylvania Convention Minority on. 218; effects on different states. 242. federal v state governments. 88-95. 207, 35354; power of. Brutus on. 1 lo-i 1. power of. Federal Farmer on, 46-50. 88-95. Edmund Randolph and Patrick Henry on. 321; types of federal. 135; unlimited power of federal. 145-50. 332 trade, regulation of. 239-40. 244-46. 253 n IS Treadwell, Thomas. 103 treaties under Confederation. 304; effect of new plan of government on. 296. equitable construction ol. bycourts. 173-74; as supreme law, u i treaty-making power: Federal Farmer on. 55; restriction of. 208 tyranny of the few, 127. of the many. *93 n 31 Union Anti-Federalists and. 326 n 18; Federalists on. 326 n 18; Patrick Henry on devotion to. 309, 314; Mclancton Smith on. 333

374

United States — extended territory of' Agnppa on. 235-36. 243. 246. Brutus on. 113-16; Federal Farmer on. 39 42-43. 92. 95; Alexander Hamilton on, 359 n 34; Patrick Henry on. 299. George Mason and Patrick Henry on. 317. Edmund Randolph and Patrick Henry on. 319; Mclancton Smith on. 354-55; James Wilson on, 209. 223 n 8 -north-south differences. 235. 252 n 11 —one nation. 96 n 7 Vatican. 262 veto power. Impartial Examiner on. 276 vice president, importance of. 46. in preventing hereditary succession. 265 Virginia, and adopting states. 312-14 Virginia convention. 273 Virginia legislature. 315 war causes of. 194 n. 61; defensive. 146. offensive. 194 n. 59 Warren. Mercy Otis, 329 Washington. George Centinei on. to. 14-15. 21 n 2; chaructct of. 158-59; and Richard Henry Lee. 99 n 52 Webster, Noah, on freedom of press, 222 n 6. on hunting und fishing rights. 222 n. 7, reply to (Pennsylva­ nia] Farmer. 201 n 1 See also Citizen of America W'cbster. Pelatiah. 191 n. 1 West Indies. 251 Williams, John. 352 Wilson, James, to. 98 n 39; on bill of rights. 79-80. too n. 117. 119, 192 n 17; and Patrick Henry on nationalism. 293; an large republics. 209; at Penn­ sylvania convention, 200 n 2. 252; re­ futed by Centinei. 8-9. 12 n 7; selec­ tion of president. 97 n. 23; on state legislatures, 211, 223 n 13; on su­ premacy clause. 223 n. 11 Winthrop. James, 227. 229 nn. 1 and : Winthtop. John, 227 Wood. Gordon. 2. 24-25 Workman. Benjamin. 11 Yates. Abraham, 103 Yates, Robert. 329. as author of Brutus essays. 103. 108 n, 8 yeomanry , more virtuous thun the great, 341.357 n. 18

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AMCItK

fllSTMRV HUItU M Pint IlSlinn llerb ctl J. Storing's Complete Anti-Federalist. hailed as "a civic event o f enduring importance" (Leonard W, Levy. V« n Iork Ttwes Hook Re­ view], indisputably established the importance o f the Anti-Federalists' w Tilings lor our understanding of the C onstitution A n Storing wrote in his introduction. “ If the foundation o f the Am erican polity was luid by the Federalists, the Am t-Federalist reservations echo through Am eri­ can history : and n is in the dialogue, not merely in the Federalist v ic ­ tory. that the country \ principles are to be discovered-” This one-volum e edition presents the essence o f the other side o f lluit crucial dialogue It can be read as a genuine counterpart to the Federalist Papers, as an original source companion to Storing's brilliant essay What the Inti-Federalixls MWv F o r (volum e I o f The

( 'ampleti. Anti-Federalist. available a> .1 separate paperback); or us 11 guide to exploring the lull range of Anti-Federalist writing 71u AntiFederalist mokes o fundamental source nt our political heritage acces­ sible to everyone ‘This abridgment provides us with the best o f the Anti-Federalist thought, presented in sufficient detail so that w c cun m ore fully ap­ preciate the dialogue which took place between the Federalists and the Ami-Federnlists uml w hich, ill fa c t continues in contemporary \mcrican society ' Ralph A Rossuiti. Clarem ont VlcKetinu C ollege

P ra is e lo r The Complete Anti-Federalist ■ '( )nc o f those rare publications that prom ise to shape a field o f inquiry lor decodes to com e.” — John A. Rohr. America -A monument to |Storing’s) insight and scliolarship It deserves to be published in a form and at u price tlial m akes it accessible to u wider audience. rhi» is one o f those rare efforts that sets un exceedingly ambitious goal o f lasting significance, and succeeds.” — Donald S l.ut/. Publius “Tlie best documentation o f Anti-Federalist political thought available." W illi Paul Adam s. American fits t o m .// Review H E R BEK I J. s t OR l N t i 1 1928- T 7). win* spent most o f his professional life at the University o f ( hicago. was, at the time o f Im death, Robert K (iooch Professor o f (.iovemment and the director o f the Program on the Presidency. NNhue Hurkett M iller Center o f Public Affaire. u r n , w ho prepared this abridgment, is the Charles A . I niversity of Virginia M l K R \ y Dana Professor ol Political Science at Middlchurv C ollege

T h e U n iv e r s it y o f C h i c a g o P r e s s

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