Federal Farmer III, continued ...
Federal Farmer
October 10, 1787
Should the general government think it politic, as some administrations (if not all) probably will, to look for a support in a system of influence, the government will take every occasion to multiply laws, and officers to execute them, considering these as so many necessary props for its own support.
Should this system of policy be adopted, taxes more productive than the impost duties will, probably, be wanted to support the government, and to discharge foreign demands, without leaving any thing for the domestic creditors.
The internal sources of taxation then must be called into operation, and internal tax laws and federal assessors and collectors spread over this immense country.
All these circumstances considered, is it wise, prudent, or safe, to vest the powers of laying and collecting internal taxes in the general government, 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 power in a government before it is fitted to receive it?
It is confessed that this power and representation ought to go together.
Why give the power first?
Why give the power to the few, who, when possessed of it, may have address enough to prevent the increase of representation?
Why not keep the power, and, when necessary, amend the constitution, and add to its other parts this power, and a proper increase of representation at the same time?
Then men who may want the power will be under strong inducements to let in the people, by their representatives, into the government, to hold their due proportion of this power.
If a proper representation be impracticable, then we shall see this power resting in the states, where it at present ought to be, and not inconsiderately given up.
When I recollect how lately congress, conventions, legislatures, and people contended in the cause of liberty, and carefully weighed the importance of taxation, I can scarcely believe we are serious in proposing to vest the powers of laying and collecting internal taxes in a government so imperfectly organized for such purposes.
Should the United States be taxed by a house of representatives of two hundred members, which would be about fifteen members for Connecticut, twenty-five for Massachusetts, &c. still the middle and lower classes of people could have no great share, in fact, in taxation.
I 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 of the people in the administration of the government, in which the purse and sword is placed, seems to argue that we have forgot what the true meaning of representation is.
I am sensible also, that it is said that congress will not attempt to lay and collect internal taxes; that it is necessary for them to have the power, though it cannot probably be exercised.
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 power would be improperly lodged in congress, and that it might be abused by imprudent and designing men.
TO BE CONTINUED ...
POLITICAL PHILOSOPHY IN AMERICA
Re: POLITICAL PHILOSOPHY IN AMERICA
Federal Farmer III, continued ...
Federal Farmer
October 10, 1787
I have heard several gentlemen, to get rid of objections to this part of the constitution, attempt to construe the powers relative to direct taxes, as those who object to it would have them; as to these, it is said, that congress will only have power to make requisitions, leaving it to the states to lay and collect them.
I see but very little colour for this construction, and the attempt only proves that this part of the plan cannot be defended.
By this plan there can be no doubt, but that the powers of congress will be complete as to all kinds of taxes whatever.
Further, as to internal taxes, the state governments will have concurrent powers with the general government, and both may tax the same objects in the same year; and the objection that the general government may suspend a state tax, as a necessary measure for the promoting the collection of a federal tax, is not without foundation.
As the states owe large debts, and have large demands upon them individually, there clearly would be a propriety in leaving in their possession exclusively, some of the internal sources of taxation, at least until the federal representation shall be properly encreased: The power in the general government to lay and collect internal taxes, will render its powers respecting armies, navies and the militia, the more exceptionable.
By the constitution it is proposed that congress shall have power “to raise and support armies, but no appropriation of 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 of the union; suppress insurrections, and repel invasions: to provide for organizing, arming, and disciplining the militia: reserving to the states the right to appoint the officers, and to train the militia according to the discipline prescribed by congress;” congress will have unlimited power to raise armies, and to engage officers and men for any number of years; but a legislative act applying money for their support can have operation for no longer term than two years, and if a subsequent congress do not within the two years renew the appropriation, or further appropriate monies for the use of the army, the army, will be left to take care of itself.
When an army shall once be raised for a number of years, it is not probable that it will find much difficulty in getting congress to pass laws for applying monies to its support.
See so many men in America fond of a standing army, and especially among those who probably will have a large share in administering the federal system; it is very evident to me, that we shall have a large standing army as soon as the monies to support them can be possibly found.
An army is a very agreeable place of employment for the young gentlemen of many families.
A power to raise armies must be lodged some where; still this will not justify the lodging this power in a bare majority of so few men without any checks; or in the government in which the great body of the people, in the nature of things, will be only nominally represented.
In the state governments the great body of the people, the yeomanry, &c. of the country, are represented: It is true they will chuse the members of congress, and may now and then chuse a man of their own way of thinking; but it is impossible for forty, or thirty thousand people in this country, one time in ten to find a man who can possess similar feelings, views, and interests with themselves: powers to lay and collect taxes and to raise armies are of the greatest moment; for carrying them into effect, laws need not be frequently made, and the yeomanry, &c. of the country ought substantially to have a check upon the passing of these laws; this check ought to be placed in the legislatures, or at least, in the few men the common people of the country, will, probably, have in congress, in the true sense of the word, “from among themselves.”
It is true, the yeomanry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions.
It is easily perceived, that if they have not their proper negative upon passing laws in congress, or on the passage of laws relative to taxes and armies, they may in twenty or thirty years be by means imperceptible to them, totally deprived of that boasted weight and strength: This may be done in a great measure by congress, if disposed to do it, by modelling the militia.
Should one fifth, or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless.
The state must train the militia in such form and according to such systems and rules as congress shall prescribe: and the only actual influence the respective states will have respecting the militia will be in appointing the officers.
I see no provision made for calling out the posse commitatus for executing the laws of the union, but provision is made for congress to call forth the militia for the execution of them and the militia in general, or any select part of it, may be called out under military officers, instead of the sheriff to enforce an execution of federal laws, in the first instance and thereby introduce an entire military execution of the laws.
I know that powers to raise taxes, to regulate the military strength of the community on some uniform plan, to provide for its defence and internal order, and for duly executing the laws, must be lodged somewhere; but still we ought not to lodge them, as evidently to give one another of them in the community, undue advantages over others; or commit the many to the mercy, prudence, and moderation of the few.
And so far as it may be necessary to lodge any of the peculiar powers in the general government, a more safe exercise of them ought to be secured, by requiring the consent of two-thirds or three-fourths of congress thereto until the federal representation can be increased, so that the democratic members in congress may stand some tolerable chance of a reasonable negative, in behalf of the numerous, important, and democratic part of the community.
TO BE CONTINUED ...
Federal Farmer
October 10, 1787
I have heard several gentlemen, to get rid of objections to this part of the constitution, attempt to construe the powers relative to direct taxes, as those who object to it would have them; as to these, it is said, that congress will only have power to make requisitions, leaving it to the states to lay and collect them.
I see but very little colour for this construction, and the attempt only proves that this part of the plan cannot be defended.
By this plan there can be no doubt, but that the powers of congress will be complete as to all kinds of taxes whatever.
Further, as to internal taxes, the state governments will have concurrent powers with the general government, and both may tax the same objects in the same year; and the objection that the general government may suspend a state tax, as a necessary measure for the promoting the collection of a federal tax, is not without foundation.
As the states owe large debts, and have large demands upon them individually, there clearly would be a propriety in leaving in their possession exclusively, some of the internal sources of taxation, at least until the federal representation shall be properly encreased: The power in the general government to lay and collect internal taxes, will render its powers respecting armies, navies and the militia, the more exceptionable.
By the constitution it is proposed that congress shall have power “to raise and support armies, but no appropriation of 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 of the union; suppress insurrections, and repel invasions: to provide for organizing, arming, and disciplining the militia: reserving to the states the right to appoint the officers, and to train the militia according to the discipline prescribed by congress;” congress will have unlimited power to raise armies, and to engage officers and men for any number of years; but a legislative act applying money for their support can have operation for no longer term than two years, and if a subsequent congress do not within the two years renew the appropriation, or further appropriate monies for the use of the army, the army, will be left to take care of itself.
When an army shall once be raised for a number of years, it is not probable that it will find much difficulty in getting congress to pass laws for applying monies to its support.
See so many men in America fond of a standing army, and especially among those who probably will have a large share in administering the federal system; it is very evident to me, that we shall have a large standing army as soon as the monies to support them can be possibly found.
An army is a very agreeable place of employment for the young gentlemen of many families.
A power to raise armies must be lodged some where; still this will not justify the lodging this power in a bare majority of so few men without any checks; or in the government in which the great body of the people, in the nature of things, will be only nominally represented.
In the state governments the great body of the people, the yeomanry, &c. of the country, are represented: It is true they will chuse the members of congress, and may now and then chuse a man of their own way of thinking; but it is impossible for forty, or thirty thousand people in this country, one time in ten to find a man who can possess similar feelings, views, and interests with themselves: powers to lay and collect taxes and to raise armies are of the greatest moment; for carrying them into effect, laws need not be frequently made, and the yeomanry, &c. of the country ought substantially to have a check upon the passing of these laws; this check ought to be placed in the legislatures, or at least, in the few men the common people of the country, will, probably, have in congress, in the true sense of the word, “from among themselves.”
It is true, the yeomanry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrespect to their opinions.
It is easily perceived, that if they have not their proper negative upon passing laws in congress, or on the passage of laws relative to taxes and armies, they may in twenty or thirty years be by means imperceptible to them, totally deprived of that boasted weight and strength: This may be done in a great measure by congress, if disposed to do it, by modelling the militia.
Should one fifth, or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless.
The state must train the militia in such form and according to such systems and rules as congress shall prescribe: and the only actual influence the respective states will have respecting the militia will be in appointing the officers.
I see no provision made for calling out the posse commitatus for executing the laws of the union, but provision is made for congress to call forth the militia for the execution of them and the militia in general, or any select part of it, may be called out under military officers, instead of the sheriff to enforce an execution of federal laws, in the first instance and thereby introduce an entire military execution of the laws.
I know that powers to raise taxes, to regulate the military strength of the community on some uniform plan, to provide for its defence and internal order, and for duly executing the laws, must be lodged somewhere; but still we ought not to lodge them, as evidently to give one another of them in the community, undue advantages over others; or commit the many to the mercy, prudence, and moderation of the few.
And so far as it may be necessary to lodge any of the peculiar powers in the general government, a more safe exercise of them ought to be secured, by requiring the consent of two-thirds or three-fourths of congress thereto until the federal representation can be increased, so that the democratic members in congress may stand some tolerable chance of a reasonable negative, in behalf of the numerous, important, and democratic part of the community.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Federal Farmer III, continued ...
Federal Farmer
October 10, 1787
I am not sufficiently acquainted with the laws and internal police of all the states to discern fully, how general bankrupt laws, made by the union, would effect them, or promote the public good.
I believe the property of debtors, in the several states, is held responsible for their debts in modes and forms very different.
If uniform bankrupt laws can be made without producing real and substantial inconveniences, I wish them to be made by Congress.
There are some powers proposed to be lodged in the general government in the judicial department, I think very unnecessarily, I mean powers respecting questions arising upon the internal laws of the respective states.
It is proper the federal judiciary should have powers co-extensive with the federal legislature that is, the power of deciding finally on the laws of the union.
By Art. 3. Sect. 2, the powers of the federal judiciary are extended (among other things) to all cases between a state and citizens of another state between citizens of different states between a state or the citizens thereof, and foreign states, citizens or subjects.
Actions in all these cases, except against a state government, are now brought and finally determined in the law courts of the states respectively; and as there are no words to exclude these courts of their jurisdiction in these cases, they will have concurrent jurisdiction with the inferior federal courts in them; and, therefore, if the new constitution be adopted without any amendment in this respect, all those numerous actions, now brought in the state courts between our citizens and foreigners, between citizens of different states, by state governments against foreigners, and by state governments against citizens of other states, may also be brought in the federal courts; and an appeal will lay in them from the state courts, or federal inferior courts, to the supreme judicial court of the union.
In almost all these cases, either party may have the trial by jury in the state courts; excepting paper money and tender laws, which are wisely 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 of their respective states, than the federal courts can possibly be.
I do not, in any point of view, see the need of opening a new jurisdiction to these causes of opening a new scene of expensive law suits of suffering foreigners, and citizens of different states, to drag each other many hundred miles into the federal courts.
It is true, those courts may be so organized by a wise and prudent legislature, as to make the obtaining of justice in them tolerably easy; they may in general be organized on the common law principles of the country: But this benefit is by no means secured by the constitution.
The trial by jury is secured only in those few criminal cases, to which the federal laws will extend as crimes committed on the seas, against the laws of nations, treason, and counterfeiting the federal securities and coin: But even in these cases, the jury trial of the vicinage is not secured particularly in the large states, a citizen may be tried for a crime 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 all in civil causes.
Though the convention have not established this trial, 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.
Whether the jury trial is not excluded [in] the supreme judicial court, is an important question.
By Art. 3. Sect. 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 jurisdiction.
In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to LAW and FACT, with such exception, and under such regulations, as the congress shall make.
By court is understood a court consisting of judges; and the idea of a jury 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 of the fact being assigned to the judges by the constitution, a jury for trying the fact is excluded; however, under the exceptions and powers to make regulations, Congress may, perhaps introduce the jury, to try the fact in most necessary cases.
TO BE CONTINUED ...
Federal Farmer
October 10, 1787
I am not sufficiently acquainted with the laws and internal police of all the states to discern fully, how general bankrupt laws, made by the union, would effect them, or promote the public good.
I believe the property of debtors, in the several states, is held responsible for their debts in modes and forms very different.
If uniform bankrupt laws can be made without producing real and substantial inconveniences, I wish them to be made by Congress.
There are some powers proposed to be lodged in the general government in the judicial department, I think very unnecessarily, I mean powers respecting questions arising upon the internal laws of the respective states.
It is proper the federal judiciary should have powers co-extensive with the federal legislature that is, the power of deciding finally on the laws of the union.
By Art. 3. Sect. 2, the powers of the federal judiciary are extended (among other things) to all cases between a state and citizens of another state between citizens of different states between a state or the citizens thereof, and foreign states, citizens or subjects.
Actions in all these cases, except against a state government, are now brought and finally determined in the law courts of the states respectively; and as there are no words to exclude these courts of their jurisdiction in these cases, they will have concurrent jurisdiction with the inferior federal courts in them; and, therefore, if the new constitution be adopted without any amendment in this respect, all those numerous actions, now brought in the state courts between our citizens and foreigners, between citizens of different states, by state governments against foreigners, and by state governments against citizens of other states, may also be brought in the federal courts; and an appeal will lay in them from the state courts, or federal inferior courts, to the supreme judicial court of the union.
In almost all these cases, either party may have the trial by jury in the state courts; excepting paper money and tender laws, which are wisely 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 of their respective states, than the federal courts can possibly be.
I do not, in any point of view, see the need of opening a new jurisdiction to these causes of opening a new scene of expensive law suits of suffering foreigners, and citizens of different states, to drag each other many hundred miles into the federal courts.
It is true, those courts may be so organized by a wise and prudent legislature, as to make the obtaining of justice in them tolerably easy; they may in general be organized on the common law principles of the country: But this benefit is by no means secured by the constitution.
The trial by jury is secured only in those few criminal cases, to which the federal laws will extend as crimes committed on the seas, against the laws of nations, treason, and counterfeiting the federal securities and coin: But even in these cases, the jury trial of the vicinage is not secured particularly in the large states, a citizen may be tried for a crime 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 all in civil causes.
Though the convention have not established this trial, 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.
Whether the jury trial is not excluded [in] the supreme judicial court, is an important question.
By Art. 3. Sect. 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 jurisdiction.
In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to LAW and FACT, with such exception, and under such regulations, as the congress shall make.
By court is understood a court consisting of judges; and the idea of a jury 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 of the fact being assigned to the judges by the constitution, a jury for trying the fact is excluded; however, under the exceptions and powers to make regulations, Congress may, perhaps introduce the jury, to try the fact in most necessary cases.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Federal Farmer III, concluded ...
Federal Farmer
October 10, 1787
There can be but one supreme court in which the final jurisdiction will centre in all federal causes except in cases where appeals by law shall not be allowed: The judicial powers of 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 decision of the law in the law judges, the decision in equity in the chancellor, and the trial of the fact in the jury.
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 of equity, and give what judgment his reason or opinion may dictate; we have no precedents in this country, as yet, to regulate the divisions in equity as in Great Britain; equity, therefore, in the supreme court for many years will be mere discretion.
I confess in the constitution of this supreme court, as left by the constitution, I do not see a spark of freedom or a shadow of our own or the British common law.
This court is to have appellate jurisdiction in all the other cases before mentioned: Many sensible men suppose that cases before mentioned respect, as 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 of law.
How far it may be proper to admit a foreigner or the citizen of another state to bring actions against state governments, which have failed in performing so many promises made during the war, is doubtful: How far it may be proper so to humble a state, as to oblige it to answer to an individual in a court of law, is worthy of consideration; the states 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 of the parties, when the contract was made; all engagements existing between citizens of different states, citizens and foreigners, states and foreigners; and states and citizens of other states were made the parties contemplating the remedies then existing on the laws of the states and the new remedy proposed to be given in the federal courts, can be founded on no principle whatever.
https://teachingamericanhistory.org/lib ... armer-iii/
Federal Farmer
October 10, 1787
There can be but one supreme court in which the final jurisdiction will centre in all federal causes except in cases where appeals by law shall not be allowed: The judicial powers of 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 decision of the law in the law judges, the decision in equity in the chancellor, and the trial of the fact in the jury.
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 of equity, and give what judgment his reason or opinion may dictate; we have no precedents in this country, as yet, to regulate the divisions in equity as in Great Britain; equity, therefore, in the supreme court for many years will be mere discretion.
I confess in the constitution of this supreme court, as left by the constitution, I do not see a spark of freedom or a shadow of our own or the British common law.
This court is to have appellate jurisdiction in all the other cases before mentioned: Many sensible men suppose that cases before mentioned respect, as 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 of law.
How far it may be proper to admit a foreigner or the citizen of another state to bring actions against state governments, which have failed in performing so many promises made during the war, is doubtful: How far it may be proper so to humble a state, as to oblige it to answer to an individual in a court of law, is worthy of consideration; the states 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 of the parties, when the contract was made; all engagements existing between citizens of different states, citizens and foreigners, states and foreigners; and states and citizens of other states were made the parties contemplating the remedies then existing on the laws of the states and the new remedy proposed to be given in the federal courts, can be founded on no principle whatever.
https://teachingamericanhistory.org/lib ... armer-iii/
Re: POLITICAL PHILOSOPHY IN AMERICA
To Speaker of Virginia House of Delegates on the Federal Constitution (VA)
Edmund Randolph
October 10, 1787
It would have been a peculiar pleasure to me to have ascertained before I left Virginia, the temper and genius of my fellow citizens, considered relatively to a government, so substantially differing from the confederation as that which is now submitted.
But this was, for many obvious reasons, impossible; and I was thereby deprived of what I thought the necessary guides.
I saw, however, that the confederation was tottering from its own weakness, and that the sitting of a convention was a signal of its total insufficiency.
I was therefore ready to assent to a scheme of government, which was proposed, and which went beyond the limits of the confederation, believing, that without being too extensive it would have preserved our tranquility, until that temper and that genius should be collected.
But when the plan which is now before the general assembly, was on its passage through the convention, I moved, that the State conventions should be at liberty to amend, and that a second general convention should be holden, to discuss the amendments, which should be suggested by them.
This motion was in some measure justified by the manner in which the confederation was forwarded originally, by congress to the State legislatures, in many of which amendments were proposed, and those amendments were afterwards examined in congress.
Such a motion was doubly expedient here, as the delegation of so much power was sought for.
But it was negatived.
I then expressed my unwillingness to sign.
My reasons were the following:
1. It is said in the resolutions which accompany the constitution, that it is to be submitted to a convention of delegates chosen in each State by the people thereof, for their assent and ratification.
The meaning of these terms is allowed universally to be, that the convention must either adopt the constitution in the whole, or reject it in the whole, and is positively forbidden to amend, if therefore, I had signed, I should have felt myself bound to be silent as to amendments, and to endeavor to support the constitution without the correction of a letter.
With this consequence before my eyes, and with a determination to attempt an amendment, I was taught by a regard for consistency not to sign.
2. My opinion always was, and still is, that every citizen of America, let the crisis be what it may, ought to have a full opportunity to propose, through his representatives, any amendment which in his apprehension, tends to the public welfare.
By signing, I should have contradicted this sentiment.
3. A constitution ought to have the hearts of the people on its side.
But if at a future day it should be burdensome after having been adopted in the whole, and they should insinuate that it was in some measure forced upon them, by being confined to the single alternative of taking or rejecting it altogether, under my impressions, and with my opinions, I should not be able to justify myself had I signed.
4. I was always satisfied, as I have now experienced, that this great subject would be placed in new lights and attitudes by the criticism of the world, and that no man can assure himself how a constitution will work for a course of years, until at least he shall have heard the observations of the people at large.
I also fear more from inaccuracies in a constitution, than from gross errors in any other composition; because our dearest interests are to be regulated by it; and power, if loosely given, especially where it will be interpreted with great latitude, may bring sorrow in its execution.
Had I signed with these ideas, I should have virtually shut my ears against the information which I ardently desired.
5. I was afraid that if the constitution was to be submitted to the people, to be wholly adopted or wholly rejected by them, they would not only reject it, but bid a lasting farewell to the union.
This formidable event I wished to avert, by keeping myself free to propose amendments, and thus, if possible, to remove the obstacles to an effectual government.
But it will be asked, whether all these arguments, were not . . . well weighed in convention.
They were, sir, with great candor.
Nay, when I called to mind the respectability of those, with whom I was associated, I almost lost confidence in these principles.
On other occasions, I should cheerfully have yielded to a majority; on this the fate of thousands yet unborn, enjoined me not to yield until I was convinced.
Again, may I be asked, why the mode pointed out in the constitution for its amendment, may not be a sufficient security against its imperfections, without now arresting it in its progress?
My answers are:
1. That it is better to amend, while we have the constitution in our power, while the passions of designing men are not yet enlisted, and while a bare majority of the States may amend than to wait for the uncertain assent of three fourths of the States.
2. That a bad feature in government, becomes more and more fixed every day.
3. That frequent changes of a constitution, even if practicable, ought not to be wished, but avoided as much as possible. And
4. That in the present case, it may be questionable, whether, after the particular advantages of its operation shall be discerned, three fourths of the States can be induced to amend.
https://teachingamericanhistory.org/lib ... tution-va/
Edmund Randolph
October 10, 1787
It would have been a peculiar pleasure to me to have ascertained before I left Virginia, the temper and genius of my fellow citizens, considered relatively to a government, so substantially differing from the confederation as that which is now submitted.
But this was, for many obvious reasons, impossible; and I was thereby deprived of what I thought the necessary guides.
I saw, however, that the confederation was tottering from its own weakness, and that the sitting of a convention was a signal of its total insufficiency.
I was therefore ready to assent to a scheme of government, which was proposed, and which went beyond the limits of the confederation, believing, that without being too extensive it would have preserved our tranquility, until that temper and that genius should be collected.
But when the plan which is now before the general assembly, was on its passage through the convention, I moved, that the State conventions should be at liberty to amend, and that a second general convention should be holden, to discuss the amendments, which should be suggested by them.
This motion was in some measure justified by the manner in which the confederation was forwarded originally, by congress to the State legislatures, in many of which amendments were proposed, and those amendments were afterwards examined in congress.
Such a motion was doubly expedient here, as the delegation of so much power was sought for.
But it was negatived.
I then expressed my unwillingness to sign.
My reasons were the following:
1. It is said in the resolutions which accompany the constitution, that it is to be submitted to a convention of delegates chosen in each State by the people thereof, for their assent and ratification.
The meaning of these terms is allowed universally to be, that the convention must either adopt the constitution in the whole, or reject it in the whole, and is positively forbidden to amend, if therefore, I had signed, I should have felt myself bound to be silent as to amendments, and to endeavor to support the constitution without the correction of a letter.
With this consequence before my eyes, and with a determination to attempt an amendment, I was taught by a regard for consistency not to sign.
2. My opinion always was, and still is, that every citizen of America, let the crisis be what it may, ought to have a full opportunity to propose, through his representatives, any amendment which in his apprehension, tends to the public welfare.
By signing, I should have contradicted this sentiment.
3. A constitution ought to have the hearts of the people on its side.
But if at a future day it should be burdensome after having been adopted in the whole, and they should insinuate that it was in some measure forced upon them, by being confined to the single alternative of taking or rejecting it altogether, under my impressions, and with my opinions, I should not be able to justify myself had I signed.
4. I was always satisfied, as I have now experienced, that this great subject would be placed in new lights and attitudes by the criticism of the world, and that no man can assure himself how a constitution will work for a course of years, until at least he shall have heard the observations of the people at large.
I also fear more from inaccuracies in a constitution, than from gross errors in any other composition; because our dearest interests are to be regulated by it; and power, if loosely given, especially where it will be interpreted with great latitude, may bring sorrow in its execution.
Had I signed with these ideas, I should have virtually shut my ears against the information which I ardently desired.
5. I was afraid that if the constitution was to be submitted to the people, to be wholly adopted or wholly rejected by them, they would not only reject it, but bid a lasting farewell to the union.
This formidable event I wished to avert, by keeping myself free to propose amendments, and thus, if possible, to remove the obstacles to an effectual government.
But it will be asked, whether all these arguments, were not . . . well weighed in convention.
They were, sir, with great candor.
Nay, when I called to mind the respectability of those, with whom I was associated, I almost lost confidence in these principles.
On other occasions, I should cheerfully have yielded to a majority; on this the fate of thousands yet unborn, enjoined me not to yield until I was convinced.
Again, may I be asked, why the mode pointed out in the constitution for its amendment, may not be a sufficient security against its imperfections, without now arresting it in its progress?
My answers are:
1. That it is better to amend, while we have the constitution in our power, while the passions of designing men are not yet enlisted, and while a bare majority of the States may amend than to wait for the uncertain assent of three fourths of the States.
2. That a bad feature in government, becomes more and more fixed every day.
3. That frequent changes of a constitution, even if practicable, ought not to be wished, but avoided as much as possible. And
4. That in the present case, it may be questionable, whether, after the particular advantages of its operation shall be discerned, three fourths of the States can be induced to amend.
https://teachingamericanhistory.org/lib ... tution-va/
Re: POLITICAL PHILOSOPHY IN AMERICA
Cato II
Cato
October 11, 1787
To the CITIZENS of the STATE of NEW-YORK.
“Remember, 0 my friends! the laws, the rights,
“The generous plan of power deliver’d down,
“By your renown’d Forefathers;
“So dearly bought, the price of so much blood!
“O let it never perish in your hands!
“But piously transmit it to your children.”
The object of my last address to you was to engage your dispassionate consideration of the new Federal government; to caution you against precipitancy in the adoption of it; to recommend a correction of its errors, if it contained any; to hint to you the danger of an easy perversion of some of its powers; to solicit you to separate yourselves from party, and to be independent of and uninfluenced by any in your principles of politics: and, that address was closed with a promise of future observations on the same subject which should be justified by reason and truth.
Here I intended to have rested the introduction, but a writer under the signature of CAESAR, in Mr. Childs’s paper of the 1st instant, who treats you with passion, insult, and threat has anticipated those observations which would otherwise have remained in silence until a future period.
It would be criminal in me to hesitate a moment to appear as your advocate in so interesting a cause, and to resist the influence of such doctrines as this Caesar holds.
I shall take no other cognizance of his remarks on the questionable shape of my future, or the equivocal appearance of my past reflections, than to declare, that in my past I did not mean to be misunderstood (for Caesar himself declares, that it is obviously the language of distrust) and that in my future there will not be the semblance of doubt.
But, what is the language of Caesar – he redicules your prerogative, power, and majesty – he talks of this proferred constitution as the tender mercy of a benevolent sovereign to deluded subjects, or, as his tyrant name-sake, of his proferred grace to the virtuous Cato: he shuts the door of free deliberation and discussion, and declares, that you must receive this government in manner and form as it is proferred – that you cannot revise nor amend it, and lastly, to close the scene, he insinuates, that it will be more healthy for you that the American Fabius should be induced to accept of the presidency of this new government than that, in case you do not acquiesce, he should be solicited to command an army to impose it on you.
Is not your indignation roused at this absolute, imperious stile?
For what did you open the veins of your citizens and expend their treasure?
For what did you throw off the yoke of Britain and call yourselves independent?
Was it from a disposition fond of change, or to procure new masters?
If those were your motives, you have your reward before you – go – retire into silent obscurity, and kiss the rod that scourges you – bury the prospects you had in store, that you and your posterity would participate in the blessings of freedom, and the employments of your country – let the rich and insolent alone be your rulers – perhaps you are designed by providence as an emphatic evidence of the mutability of human affairs, to have the shew of happiness only, that your misery may seem the sharper, and if so, you must submit.
But, if you had nobler views, and you are not designed by heaven as an example – are you now to be derided and insulted?
Is the power of thinking, on the only subject important to you, to be taken away?
And if per chance you should happen to dissent from Cesar, are you to have Caesar’s principles crammed down your throats with an army?
God forbid!
TO BE CONTINUED ...
Cato
October 11, 1787
To the CITIZENS of the STATE of NEW-YORK.
“Remember, 0 my friends! the laws, the rights,
“The generous plan of power deliver’d down,
“By your renown’d Forefathers;
“So dearly bought, the price of so much blood!
“O let it never perish in your hands!
“But piously transmit it to your children.”
The object of my last address to you was to engage your dispassionate consideration of the new Federal government; to caution you against precipitancy in the adoption of it; to recommend a correction of its errors, if it contained any; to hint to you the danger of an easy perversion of some of its powers; to solicit you to separate yourselves from party, and to be independent of and uninfluenced by any in your principles of politics: and, that address was closed with a promise of future observations on the same subject which should be justified by reason and truth.
Here I intended to have rested the introduction, but a writer under the signature of CAESAR, in Mr. Childs’s paper of the 1st instant, who treats you with passion, insult, and threat has anticipated those observations which would otherwise have remained in silence until a future period.
It would be criminal in me to hesitate a moment to appear as your advocate in so interesting a cause, and to resist the influence of such doctrines as this Caesar holds.
I shall take no other cognizance of his remarks on the questionable shape of my future, or the equivocal appearance of my past reflections, than to declare, that in my past I did not mean to be misunderstood (for Caesar himself declares, that it is obviously the language of distrust) and that in my future there will not be the semblance of doubt.
But, what is the language of Caesar – he redicules your prerogative, power, and majesty – he talks of this proferred constitution as the tender mercy of a benevolent sovereign to deluded subjects, or, as his tyrant name-sake, of his proferred grace to the virtuous Cato: he shuts the door of free deliberation and discussion, and declares, that you must receive this government in manner and form as it is proferred – that you cannot revise nor amend it, and lastly, to close the scene, he insinuates, that it will be more healthy for you that the American Fabius should be induced to accept of the presidency of this new government than that, in case you do not acquiesce, he should be solicited to command an army to impose it on you.
Is not your indignation roused at this absolute, imperious stile?
For what did you open the veins of your citizens and expend their treasure?
For what did you throw off the yoke of Britain and call yourselves independent?
Was it from a disposition fond of change, or to procure new masters?
If those were your motives, you have your reward before you – go – retire into silent obscurity, and kiss the rod that scourges you – bury the prospects you had in store, that you and your posterity would participate in the blessings of freedom, and the employments of your country – let the rich and insolent alone be your rulers – perhaps you are designed by providence as an emphatic evidence of the mutability of human affairs, to have the shew of happiness only, that your misery may seem the sharper, and if so, you must submit.
But, if you had nobler views, and you are not designed by heaven as an example – are you now to be derided and insulted?
Is the power of thinking, on the only subject important to you, to be taken away?
And if per chance you should happen to dissent from Cesar, are you to have Caesar’s principles crammed down your throats with an army?
God forbid!
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Cato II, continued ...
Cato
October 11, 1787
In democratic republics the people collectively are considered as the sovereign – all legislative, judicial, and executive power, is inherent in and derived from them.
As a people, your power and authority have sanctioned and established the present government – your executive, legislative, and judicial acknowledge it by their public acts – you are again solicited to sanction and establish the future one – yet this Caesar mocks your dignity and laughs at the majesty of the people.
Caesar, with his usual dogmatism, enquires, if I had talents to throw light on the subject of legislation, why did I not offer them when the Convention was in session?
He is answered in a moment - I thought with him and you, that the wisdom of America, in that Convention, was drawn as it were to a Focus – I placed an unbounded confidence in some of the characters who were members of it, from the services they had rendered their country, without adverting to the ambitious and interested views of others.
I was willingly led to expect a model of perfection and security that would have astonished the world.
Therefore, to have offered observation, on the subject of legislation, under these impressions, would have discovered no less arrogance than Cesar.
The Convention too, when in session, shut their doors to the observations of the community, and their members were under an obligation of secrecy.
Nothing transpired to have suggested remarks on unknown and anticipated principles would have been like a man groping in the dark, and folly in the extreme.
I confess, however, I have been disappointed, and Cesar is candid enough to make the same declaration, for he thinks it might have been more perfect.
But to call in dispute, at this time, and in the manner Caesar does, the right of free deliberation on this subject, is like a man’s propounding a question to another, and telling him, at the same time, that if he does not answer agreeable to the opinion of the propounder, he will exert force to make him of the same sentiment: to exemplify this, it will be necessary to give you a short history of the rise and progress of the Convention, and the conduct of Congress thereon.
TO BE CONTINUED ...
Cato
October 11, 1787
In democratic republics the people collectively are considered as the sovereign – all legislative, judicial, and executive power, is inherent in and derived from them.
As a people, your power and authority have sanctioned and established the present government – your executive, legislative, and judicial acknowledge it by their public acts – you are again solicited to sanction and establish the future one – yet this Caesar mocks your dignity and laughs at the majesty of the people.
Caesar, with his usual dogmatism, enquires, if I had talents to throw light on the subject of legislation, why did I not offer them when the Convention was in session?
He is answered in a moment - I thought with him and you, that the wisdom of America, in that Convention, was drawn as it were to a Focus – I placed an unbounded confidence in some of the characters who were members of it, from the services they had rendered their country, without adverting to the ambitious and interested views of others.
I was willingly led to expect a model of perfection and security that would have astonished the world.
Therefore, to have offered observation, on the subject of legislation, under these impressions, would have discovered no less arrogance than Cesar.
The Convention too, when in session, shut their doors to the observations of the community, and their members were under an obligation of secrecy.
Nothing transpired to have suggested remarks on unknown and anticipated principles would have been like a man groping in the dark, and folly in the extreme.
I confess, however, I have been disappointed, and Cesar is candid enough to make the same declaration, for he thinks it might have been more perfect.
But to call in dispute, at this time, and in the manner Caesar does, the right of free deliberation on this subject, is like a man’s propounding a question to another, and telling him, at the same time, that if he does not answer agreeable to the opinion of the propounder, he will exert force to make him of the same sentiment: to exemplify this, it will be necessary to give you a short history of the rise and progress of the Convention, and the conduct of Congress thereon.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Cato II, concluded ...
Cato
October 11, 1787
The states in Congress suggested, that the articles of confederation had provided for making alterations in the confederation –that there were defects therein, and as a mean to remedy which, a Convention of delegates, appointed by the different states, was resolved expedient to be held for the sole and express purpose of revising it, and reporting to Congress and the different legislatures such alterations and provisions therein as should (when agreed to in Congress and confirmed by the several states) render the Federal constitution adequate to the exigencies of government.
This resolution is sent to the different states, and the legislature of this state, with others, appoint, in conformity thereto, delegates for the purpose, and in the words mentioned in that resolve, as by the resolution of Congress, and the concurrent resolutions of the senate and assembly of this state, subjoined, will appear.
For the sole and express purpose aforesaid a Convention of delegates is formed at Philadelphia: what have they done?
Have they revised the confederation, and has Congress agreed to their report?
Neither is the fact.
This Convention have exceeded the authority given to them, and have transmitted to Congress a new political fabric, essentially and fundamentally distinct and different from it, in which the different states do not retain separately their sovereignty and independency, united by a confederated league – but one entire sovereignty – a consolidation of them into one government – in which new provisions and powers are not made and vested in Congress, but in an assembly, senate, and president, who are not known in the articles of confederation.
Congress, without agreeing to, or approving of, this system proferred by the Convention, have sent it to the different legislatures, not for their confirmation, but to submit it to the people; not in conformity to their own resolution, but in conformity to the resolution of the Convention made and provided in that case.
Was it then, from the face of the foregoing facts, the intention of Congress, and of this and the other states, that the essence of our present national government should be annihilated, or that it should be retained and only had an increase of substantial necessary power?
Congress, sensible of this latter principle, and that the Convention had taken on themselves a power which neither they nor the other states had a right to delegate to them, and that they could not agree to, and approve of this consolidated system, nor the states confirm it – have been silent on its character; and though many have dwelt on their unanimity, it is no less than the unanimity of opinion that it originated in an assumption of power, which your voice alone can sanctify.
This new government, therefore, founded in usurpation, is referred to your opinion as the origin of power not heretofore delegated, and, to this end, the exercise of the prerogative of free examination is essentially necessary; and yet you are unhesitatingly to acquiesce, and if you do not, the American Fabius, if we may believe Caesar, is to command an army to impose it.
It is not my view to rouse your passions, I only wish to excite you to, and assist you in, a cool and deliberate discussion of the subject, to urge you to behave like sensible freemen.
Think, speak, act, and assert your opinions and rights – let the same good sense govern you with respect to the adoption of a future system for the administration of your public affairs that influenced you in the formation of the present.
Hereafter I do not intend to be diverted by either Caesar, or any other.
My object is to take up this new form of national government – compare it with the experience and the opinions of the most sensible and approved political authors – and to shew, that its principles, and the exercise of them, will be dangerous to your liberty and happiness.
https://teachingamericanhistory.org/lib ... t/cato-ii/
Cato
October 11, 1787
The states in Congress suggested, that the articles of confederation had provided for making alterations in the confederation –that there were defects therein, and as a mean to remedy which, a Convention of delegates, appointed by the different states, was resolved expedient to be held for the sole and express purpose of revising it, and reporting to Congress and the different legislatures such alterations and provisions therein as should (when agreed to in Congress and confirmed by the several states) render the Federal constitution adequate to the exigencies of government.
This resolution is sent to the different states, and the legislature of this state, with others, appoint, in conformity thereto, delegates for the purpose, and in the words mentioned in that resolve, as by the resolution of Congress, and the concurrent resolutions of the senate and assembly of this state, subjoined, will appear.
For the sole and express purpose aforesaid a Convention of delegates is formed at Philadelphia: what have they done?
Have they revised the confederation, and has Congress agreed to their report?
Neither is the fact.
This Convention have exceeded the authority given to them, and have transmitted to Congress a new political fabric, essentially and fundamentally distinct and different from it, in which the different states do not retain separately their sovereignty and independency, united by a confederated league – but one entire sovereignty – a consolidation of them into one government – in which new provisions and powers are not made and vested in Congress, but in an assembly, senate, and president, who are not known in the articles of confederation.
Congress, without agreeing to, or approving of, this system proferred by the Convention, have sent it to the different legislatures, not for their confirmation, but to submit it to the people; not in conformity to their own resolution, but in conformity to the resolution of the Convention made and provided in that case.
Was it then, from the face of the foregoing facts, the intention of Congress, and of this and the other states, that the essence of our present national government should be annihilated, or that it should be retained and only had an increase of substantial necessary power?
Congress, sensible of this latter principle, and that the Convention had taken on themselves a power which neither they nor the other states had a right to delegate to them, and that they could not agree to, and approve of this consolidated system, nor the states confirm it – have been silent on its character; and though many have dwelt on their unanimity, it is no less than the unanimity of opinion that it originated in an assumption of power, which your voice alone can sanctify.
This new government, therefore, founded in usurpation, is referred to your opinion as the origin of power not heretofore delegated, and, to this end, the exercise of the prerogative of free examination is essentially necessary; and yet you are unhesitatingly to acquiesce, and if you do not, the American Fabius, if we may believe Caesar, is to command an army to impose it.
It is not my view to rouse your passions, I only wish to excite you to, and assist you in, a cool and deliberate discussion of the subject, to urge you to behave like sensible freemen.
Think, speak, act, and assert your opinions and rights – let the same good sense govern you with respect to the adoption of a future system for the administration of your public affairs that influenced you in the formation of the present.
Hereafter I do not intend to be diverted by either Caesar, or any other.
My object is to take up this new form of national government – compare it with the experience and the opinions of the most sensible and approved political authors – and to shew, that its principles, and the exercise of them, will be dangerous to your liberty and happiness.
https://teachingamericanhistory.org/lib ... t/cato-ii/
Re: POLITICAL PHILOSOPHY IN AMERICA
Federal Farmer IV
Federal Farmer
October 12, 1787
Introduction
The Antifederalist Federal Farmer, without mentioning James Wilson by name (State House Speech), criticized the claim of his State House speech that a bill of rights is unnecessary and dangerous.
The Federal Farmer argued that the provisions of Article I, Sections 9 and 10 of the Constitution (Appendix D) were a partial bill of rights — see the restriction on ex post facto laws — so why not either drop such protection for rights or go the whole distance and itemize a bill of rights that includes “other essential rights”?
The Federal Farmer was concerned that the Constitution contained within itself the potentiality to become a consolidated government despite Wilson’s argument that the Constitution only bestowed powers that were clearly enumerated.
If the latter were the case, then Wilson would be arguing that the framers of the Constitution created a confederacy with expressly delegated powers.
How strange would that be, since the point of the Constitutional Convention was to provide remedies for the defects of just such a form of government.
The Federal Farmer thought the framers created a government and not simply a revision of a confederation.
Thus, the government needed a comprehensive bill of rights, since the Constitution contained the seeds of a general government operating with unlimited powers.
Source: The Federalist and Other Constitutional Papers by Hamilton, Jay, Madison and Other Statesmen of Their Time, E. H. Scott, ed. (Chicago: Albert, Scott & Company, 1894), 867–874; https://goo.gl/xbm7mw.
. . . 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 [sic] reserved in the people; and that the people, in the present case, have reserved in themselves, and in their state governments, every right and power not expressly given by the federal Constitution to those who shall administer the national government.
It is said, on the other hand, that the people, when they make a constitution, yield all power not expressly reserved to themselves.
The truth is, in either case, it is mere matter of opinion, and men usually take either side of the argument, as will best answer their purposes: But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favorably for increasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefully described the powers parted with and the powers reserved.
By the state constitutions, certain rights have been reserved 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 state legislatures are obliged to take notice of the bills of rights of their respective states.
The bills of rights, and the state constitutions, are fundamental compacts only between those who govern, and the people of the same state.
In the year 1788 the people of the United States make a federal Constitution, which is a fundamental compact between them and their federal rulers; these rulers, in the nature of things, cannot be bound to take notice of any other compact.
It would be absurd for them, in making laws, to look over thirteen, fifteen, or twenty state constitutions, to see what rights are established as 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 compact, should refer to the state constitutions, recognize all parts not inconsistent with the federal constitution, and direct their federal rulers to take notice of 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 or implied, I think my opinion is not only founded in reason, but I think it is supported by the report of the convention itself.
If there are a number of rights established by the state constitutions, and which will remain sacred, and the general government is bound to take notice of them — it must take notice of one as well as another; and if unnecessary to recognize or establish one by the federal Constitution, it would be unnecessary to recognize or establish another by it.
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 of the writ of habeas corpus, &c. secured; they all stand on the same footing; they are the common rights of Americans, and have been recognized by the state constitutions.
But the convention found it necessary to recognize or re-establish the benefits of that writ, and the jury trial in criminal cases.
As to EXPOST FACTO laws, the convention has done the same in one case, and gone further in another.
It is part of the compact between the people of each state and their rulers, that no EXPOST FACTO laws shall be made.
But the Convention, by Art. I Sect. 10 have put a sanction upon this part even of the state compacts.
In fact, the 9th and 10th Sections in Art. 1. in the proposed Constitution, are no more nor less, than a partial bill of rights; they establish certain principles as part of the compact upon which the federal legislators and officers can never infringe.
It is here wisely stipulated, that the federal legislature shall never pass a bill of attainder, or EXPOST FACTO law; that no tax shall be laid on articles exported, &c.
The establishing of one right implies the necessity of establishing another and similar one.
On the whole, the position appears to me to be undeniable, that this bill of rights ought to be carried farther, and some other principles established, as a part of this fundamental compact between the people of the United States and their federal rulers.
It is true, we are not disposed to differ much, at present, about religion; but when we are making a constitution, it is to be hoped, for ages and millions yet unborn, why not establish the free exercise of religion, as a part of the national compact.
There are other essential rights, which we have justly understood to be the rights of freemen; as freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men’s papers, property, and persons.
The trials by jury in civil causes, it is said, varies so much in the several states, that no words could be found for the uniform establishment of it.
If so the federal legislation will not be able to establish it by any general laws.
I confess I am of opinion it may be established, but not in that beneficial manner in which we may enjoy it, for the reasons before mentioned.
When I speak of the jury trial of the vicinage,[1] or the trial of the fact in the neighborhood, I do not lay so much stress upon the circumstance of our being tried by our neighbors: in this enlightened country men may be probably impartially tried by those who do not live very near them: but the trial of facts in the neighborhood is of great importance in other respects.
Nothing can be more essential than the cross-examining witnesses, and generally before the triers of the facts in question.
The common people can establish facts with much more ease with oral than written evidence; when trials of facts are removed to a distance from the homes of the parties and witnesses, oral evidence becomes intolerably expensive, and the parties must depend on written evidence, which to the common people is expensive and almost useless; it must be frequently taken ex-parte,[2] and but very seldom leads to the proper discovery of truth.
The trial by jury is very important in another point of view.
It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department.
To hold open to them the offices of senators, judges, and offices to fill which an expensive education is required, cannot answer 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 of any considerable importance, will be occupied by the few.
The few, the well born, &c. as Mr. Adams calls them, in judicial decisions as well as in legislation, are generally disposed, and very naturally too, to favor those of their own description. . . .
Footnotes
[1] vicinity
[2] from or on behalf of only one of the parties
https://teachingamericanhistory.org/lib ... farmer-iv/
Federal Farmer
October 12, 1787
Introduction
The Antifederalist Federal Farmer, without mentioning James Wilson by name (State House Speech), criticized the claim of his State House speech that a bill of rights is unnecessary and dangerous.
The Federal Farmer argued that the provisions of Article I, Sections 9 and 10 of the Constitution (Appendix D) were a partial bill of rights — see the restriction on ex post facto laws — so why not either drop such protection for rights or go the whole distance and itemize a bill of rights that includes “other essential rights”?
The Federal Farmer was concerned that the Constitution contained within itself the potentiality to become a consolidated government despite Wilson’s argument that the Constitution only bestowed powers that were clearly enumerated.
If the latter were the case, then Wilson would be arguing that the framers of the Constitution created a confederacy with expressly delegated powers.
How strange would that be, since the point of the Constitutional Convention was to provide remedies for the defects of just such a form of government.
The Federal Farmer thought the framers created a government and not simply a revision of a confederation.
Thus, the government needed a comprehensive bill of rights, since the Constitution contained the seeds of a general government operating with unlimited powers.
Source: The Federalist and Other Constitutional Papers by Hamilton, Jay, Madison and Other Statesmen of Their Time, E. H. Scott, ed. (Chicago: Albert, Scott & Company, 1894), 867–874; https://goo.gl/xbm7mw.
. . . 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 [sic] reserved in the people; and that the people, in the present case, have reserved in themselves, and in their state governments, every right and power not expressly given by the federal Constitution to those who shall administer the national government.
It is said, on the other hand, that the people, when they make a constitution, yield all power not expressly reserved to themselves.
The truth is, in either case, it is mere matter of opinion, and men usually take either side of the argument, as will best answer their purposes: But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favorably for increasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefully described the powers parted with and the powers reserved.
By the state constitutions, certain rights have been reserved 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 state legislatures are obliged to take notice of the bills of rights of their respective states.
The bills of rights, and the state constitutions, are fundamental compacts only between those who govern, and the people of the same state.
In the year 1788 the people of the United States make a federal Constitution, which is a fundamental compact between them and their federal rulers; these rulers, in the nature of things, cannot be bound to take notice of any other compact.
It would be absurd for them, in making laws, to look over thirteen, fifteen, or twenty state constitutions, to see what rights are established as 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 compact, should refer to the state constitutions, recognize all parts not inconsistent with the federal constitution, and direct their federal rulers to take notice of 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 or implied, I think my opinion is not only founded in reason, but I think it is supported by the report of the convention itself.
If there are a number of rights established by the state constitutions, and which will remain sacred, and the general government is bound to take notice of them — it must take notice of one as well as another; and if unnecessary to recognize or establish one by the federal Constitution, it would be unnecessary to recognize or establish another by it.
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 of the writ of habeas corpus, &c. secured; they all stand on the same footing; they are the common rights of Americans, and have been recognized by the state constitutions.
But the convention found it necessary to recognize or re-establish the benefits of that writ, and the jury trial in criminal cases.
As to EXPOST FACTO laws, the convention has done the same in one case, and gone further in another.
It is part of the compact between the people of each state and their rulers, that no EXPOST FACTO laws shall be made.
But the Convention, by Art. I Sect. 10 have put a sanction upon this part even of the state compacts.
In fact, the 9th and 10th Sections in Art. 1. in the proposed Constitution, are no more nor less, than a partial bill of rights; they establish certain principles as part of the compact upon which the federal legislators and officers can never infringe.
It is here wisely stipulated, that the federal legislature shall never pass a bill of attainder, or EXPOST FACTO law; that no tax shall be laid on articles exported, &c.
The establishing of one right implies the necessity of establishing another and similar one.
On the whole, the position appears to me to be undeniable, that this bill of rights ought to be carried farther, and some other principles established, as a part of this fundamental compact between the people of the United States and their federal rulers.
It is true, we are not disposed to differ much, at present, about religion; but when we are making a constitution, it is to be hoped, for ages and millions yet unborn, why not establish the free exercise of religion, as a part of the national compact.
There are other essential rights, which we have justly understood to be the rights of freemen; as freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men’s papers, property, and persons.
The trials by jury in civil causes, it is said, varies so much in the several states, that no words could be found for the uniform establishment of it.
If so the federal legislation will not be able to establish it by any general laws.
I confess I am of opinion it may be established, but not in that beneficial manner in which we may enjoy it, for the reasons before mentioned.
When I speak of the jury trial of the vicinage,[1] or the trial of the fact in the neighborhood, I do not lay so much stress upon the circumstance of our being tried by our neighbors: in this enlightened country men may be probably impartially tried by those who do not live very near them: but the trial of facts in the neighborhood is of great importance in other respects.
Nothing can be more essential than the cross-examining witnesses, and generally before the triers of the facts in question.
The common people can establish facts with much more ease with oral than written evidence; when trials of facts are removed to a distance from the homes of the parties and witnesses, oral evidence becomes intolerably expensive, and the parties must depend on written evidence, which to the common people is expensive and almost useless; it must be frequently taken ex-parte,[2] and but very seldom leads to the proper discovery of truth.
The trial by jury is very important in another point of view.
It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department.
To hold open to them the offices of senators, judges, and offices to fill which an expensive education is required, cannot answer 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 of any considerable importance, will be occupied by the few.
The few, the well born, &c. as Mr. Adams calls them, in judicial decisions as well as in legislation, are generally disposed, and very naturally too, to favor those of their own description. . . .
Footnotes
[1] vicinity
[2] from or on behalf of only one of the parties
https://teachingamericanhistory.org/lib ... farmer-iv/
Re: POLITICAL PHILOSOPHY IN AMERICA
Connecticut State Convention
October 17, 1787
THE CONSTITUTION TO THE CALLING OF THE STATE CONVENTION
The Connecticut response to the Constitution was immediate and overwhelmingly favorable.
By 5 October, the Constitution had been printed in seven state newspapers and as a broadside by Thomas Collier.
By 15 October, six newspapers also reprinted or reported news of the congressional resolution of 28 September transmitting the Constitution to the states.
The newspapers gave no hint of opposition within the state, although the private letters of Federalists reveal that there was opposition and that it worried them.
On 28 September, two days after the first publication of the Constitution in Connecticut, David Humphreys wrote George Washington that the ”well affected” had been preparing the ”minds of the citizens” for ”whatever might be the result of your proceedings,” and that he had ”no inconsiderable agency in the superintendence of two presses.”
The preparation of the ”minds of the citizens” was essentially a continuation of the campaign for a stronger central government which had begun long before the meeting of the Constitutional Convention, and which had reached a peak during the winter of 1786—87.
Before the calling of the state Convention on 17 October, Connecticut newspapers published few original articles on the Constitution.
The New Haven Gazette published three lengthy essays supporting ratification, while the American Mercury printed one short Federalist essay.
More significant were the items reprinted from out—of—state newspapers — particularly from Pennsylvania — all of which supported the Constitution.
Three of Connecticut’s newspapers reprinted the proceedings of the Pennsylvania Assembly of 28 September and five reprinted the Assembly resolutions calling the state Convention.
Other out—of—state articles reprinted included a satire signed ”Daniel Shays” from the Philadelphia Independent Gazetteer, 25 September; ”A True American” from the Massachusetts Centinel, 29 September; ”Curtius” I from the New York Daily Advertiser, 29 September; and an unsigned essay from the Poughkeepsie Country Journal, 3 October.
An ”Extract of a Letter from a Member of Congress, New York, 23 September,” from the Philadelphia Independent Gazetteer, 26 September was reprinted in Hartford, New Haven, New London, and Litchfield.
In addition to these items, the newspapers were filled with ”squibs,” mostly reprinted from Philadelphia.
Some squibs asserted that the Constitution would create a balanced government, protect the liberties of the people, and restore national honor and prestige.
Others praised prominent supporters of the Constitution such as George Washington and Benjamin Franklin, while still others claimed that opponents of the Constitution sought to destroy the Union.
And a number of them asserted that ratification was a certainty in Delaware, New Jersey, and New York.
https://teachingamericanhistory.org/lib ... onvention/
October 17, 1787
THE CONSTITUTION TO THE CALLING OF THE STATE CONVENTION
The Connecticut response to the Constitution was immediate and overwhelmingly favorable.
By 5 October, the Constitution had been printed in seven state newspapers and as a broadside by Thomas Collier.
By 15 October, six newspapers also reprinted or reported news of the congressional resolution of 28 September transmitting the Constitution to the states.
The newspapers gave no hint of opposition within the state, although the private letters of Federalists reveal that there was opposition and that it worried them.
On 28 September, two days after the first publication of the Constitution in Connecticut, David Humphreys wrote George Washington that the ”well affected” had been preparing the ”minds of the citizens” for ”whatever might be the result of your proceedings,” and that he had ”no inconsiderable agency in the superintendence of two presses.”
The preparation of the ”minds of the citizens” was essentially a continuation of the campaign for a stronger central government which had begun long before the meeting of the Constitutional Convention, and which had reached a peak during the winter of 1786—87.
Before the calling of the state Convention on 17 October, Connecticut newspapers published few original articles on the Constitution.
The New Haven Gazette published three lengthy essays supporting ratification, while the American Mercury printed one short Federalist essay.
More significant were the items reprinted from out—of—state newspapers — particularly from Pennsylvania — all of which supported the Constitution.
Three of Connecticut’s newspapers reprinted the proceedings of the Pennsylvania Assembly of 28 September and five reprinted the Assembly resolutions calling the state Convention.
Other out—of—state articles reprinted included a satire signed ”Daniel Shays” from the Philadelphia Independent Gazetteer, 25 September; ”A True American” from the Massachusetts Centinel, 29 September; ”Curtius” I from the New York Daily Advertiser, 29 September; and an unsigned essay from the Poughkeepsie Country Journal, 3 October.
An ”Extract of a Letter from a Member of Congress, New York, 23 September,” from the Philadelphia Independent Gazetteer, 26 September was reprinted in Hartford, New Haven, New London, and Litchfield.
In addition to these items, the newspapers were filled with ”squibs,” mostly reprinted from Philadelphia.
Some squibs asserted that the Constitution would create a balanced government, protect the liberties of the people, and restore national honor and prestige.
Others praised prominent supporters of the Constitution such as George Washington and Benjamin Franklin, while still others claimed that opponents of the Constitution sought to destroy the Union.
And a number of them asserted that ratification was a certainty in Delaware, New Jersey, and New York.
https://teachingamericanhistory.org/lib ... onvention/