Agrippa IX, continued ...
December 28, 1787
After all that has been said and written on this subject, and on the difficulty of amending our old constitution so as to render it adequate to national purposes, it does not appear that any thing more was necessary to be done, than framing two new articles.
By one a limited revenue would be given to Congress with a right to collect it, and by the other a limited right to regulate our intercourse with foreign nations.
By such an addition we should have preserved to each state its power to defend the rights of the citizens, and the whole empire would be capable of expanding, and receiving additions without altering its former constitution.
Congress, at the same time, by the extent of their jurisdiction, and the number of their officers, would have acquired more respectability at home, and a sufficient influence abroad.
If any state was in such a case to invade the rights of the Union, the other states would join in defence of those rights, and it would be in the power of Congress to direct the national force to that object.
But it is certain that the powers of Congress over the citizens should be small in proportion as the empire is extended; that, in order to preserve the balance, each state may supply by energy what is wanting in numbers.
Congress would be able by such a system as we have proposed to regulate trade with foreigners by such duties as should effectually give the preference to the produce and manufactures of our own country.
We should then have a friendly intercourse established between the states, upon the principles of mutual interest.
A moderate duty upon foreign vessels would give an advantage to our own people, while it would avoid all the [dis]advantages arising from a prohibition, and the consequent deficiency of vessels to transport the produce of the southern states.
TO BE CONTINUED ...
POLITICAL PHILOSOPHY IN AMERICA
Re: POLITICAL PHILOSOPHY IN AMERICA
Agrippa IX, concluded ...
December 28, 1787
Our country is at present upon an average a thousand miles long from north to south, and eight hundred broad from the Missisippi to the Ocean.
We have at least six millions of white inhabitants, and the annual increase is about two hundred and fifty thousand souls, exclusive of emigrants from Europe.
The greater part of our increase is employed in settling the new lands, while the older settlements are entering largely into manufactures of various kinds.
It is probable, that the extraordinary exertions of this state in the way of industry for the present year only, exceed in value five hundred thousand pounds.
The new settlements, if all made in the same tract of country, would form a large state annually; and the time seems to be literally accomplished when a nation shall be born in a day.
Such an immense country is not only capable of yielding all the produce of Europe, but actually does produce by far the greater part of the raw materials.
The restrictions on our trade in Europe, necessarily oblige us to make use of those materials, and the high price of labour operates as an encouragement to mechanical improvements.
In this way we daily make rapid advancements towards independence in resources as well as in empire.
If we adopt the new system of government we shall by one rash vote lose the fruit of the toil and expense of thirteen years, at the time when the benefits of that toil and expense are rapidly increasing.
Though the imposts of Congress on foreign trade may tend to encourage manufactures, the excise and dry tax will destroy all the beneficial effects of the impost, at the same time that they diminish our capital.
Be careful then to give only a limited revenue, and the limited power of managing foreign concerns.
Once surrender the rights of internal legislation and taxation, and instead of being respected abroad, foreigners will laugh at us, and posterity will lament our folly.
TO BE CONTINUED ...
December 28, 1787
Our country is at present upon an average a thousand miles long from north to south, and eight hundred broad from the Missisippi to the Ocean.
We have at least six millions of white inhabitants, and the annual increase is about two hundred and fifty thousand souls, exclusive of emigrants from Europe.
The greater part of our increase is employed in settling the new lands, while the older settlements are entering largely into manufactures of various kinds.
It is probable, that the extraordinary exertions of this state in the way of industry for the present year only, exceed in value five hundred thousand pounds.
The new settlements, if all made in the same tract of country, would form a large state annually; and the time seems to be literally accomplished when a nation shall be born in a day.
Such an immense country is not only capable of yielding all the produce of Europe, but actually does produce by far the greater part of the raw materials.
The restrictions on our trade in Europe, necessarily oblige us to make use of those materials, and the high price of labour operates as an encouragement to mechanical improvements.
In this way we daily make rapid advancements towards independence in resources as well as in empire.
If we adopt the new system of government we shall by one rash vote lose the fruit of the toil and expense of thirteen years, at the time when the benefits of that toil and expense are rapidly increasing.
Though the imposts of Congress on foreign trade may tend to encourage manufactures, the excise and dry tax will destroy all the beneficial effects of the impost, at the same time that they diminish our capital.
Be careful then to give only a limited revenue, and the limited power of managing foreign concerns.
Once surrender the rights of internal legislation and taxation, and instead of being respected abroad, foreigners will laugh at us, and posterity will lament our folly.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Samuel Adams and the Constitution
December 28, 1787
Extract of a letter from a gentleman in Salem, to his friend in this town, December 26
The new constitution meets with general approbation in this town; almost every person of property and honesty wishes for the adoption of it.
There are some few, however, whose characters as honest men and good citizens, is thoroughly established, who are rather in opposition to it.
This I much wonder at; but candour obliges me to judge favourably of their motives, because they have ever been decided friends to the welfare and happiness of their country.
I however hope that time will effect a change of their sentiments; and I think I have some foundation for my hopes;
For truth and reason’s bright’ned rays combin’d,
Will force conviction on the candid mind.
I think, my friend, that it can be demonstrated to the conception of every rational mind, that the new constitution is nobly calculated to support and defend those inestimable rights for which the citizens of America so long toiled and bled.
I need not, however delineate its beauties to you, as you are already fully sensible of them.
There is one thing which gives me not a little pain, and it is this.
The hon. SAMUEL ADAMS, I hear, is in opposition to the plan of federal government.
Although he may act from motives truly patriotick in this affair, you know the caprice of human nature is such, that mankind never put the most favourable construction upon the conduct of each other; and if a man does ninety-nine good actions and neglects the hundredth, he often comes under the goading lash of censure.
I may perhaps be mistaken, but it is really my opinion, that Mr. Adams’s opposition to the federal constitution will, in the eyes of America, sully the brightness of those laurels which have so long encircled the brow of that venerable statesman.
You ask me, whether I suppose that there will be much opposition made to the new constitution, in our state convention.
I answer, I hope not.
For before the federalism of a HANCOCK, a BOWDOIN, a DANA, a KING, and many other illustrious characters, who are members of the convention, anti-federalism must droop, and recoil in silent shame.
I think we have every thing to hope, and very little to fear.
TO BE CONTINUED ...
December 28, 1787
Extract of a letter from a gentleman in Salem, to his friend in this town, December 26
The new constitution meets with general approbation in this town; almost every person of property and honesty wishes for the adoption of it.
There are some few, however, whose characters as honest men and good citizens, is thoroughly established, who are rather in opposition to it.
This I much wonder at; but candour obliges me to judge favourably of their motives, because they have ever been decided friends to the welfare and happiness of their country.
I however hope that time will effect a change of their sentiments; and I think I have some foundation for my hopes;
For truth and reason’s bright’ned rays combin’d,
Will force conviction on the candid mind.
I think, my friend, that it can be demonstrated to the conception of every rational mind, that the new constitution is nobly calculated to support and defend those inestimable rights for which the citizens of America so long toiled and bled.
I need not, however delineate its beauties to you, as you are already fully sensible of them.
There is one thing which gives me not a little pain, and it is this.
The hon. SAMUEL ADAMS, I hear, is in opposition to the plan of federal government.
Although he may act from motives truly patriotick in this affair, you know the caprice of human nature is such, that mankind never put the most favourable construction upon the conduct of each other; and if a man does ninety-nine good actions and neglects the hundredth, he often comes under the goading lash of censure.
I may perhaps be mistaken, but it is really my opinion, that Mr. Adams’s opposition to the federal constitution will, in the eyes of America, sully the brightness of those laurels which have so long encircled the brow of that venerable statesman.
You ask me, whether I suppose that there will be much opposition made to the new constitution, in our state convention.
I answer, I hope not.
For before the federalism of a HANCOCK, a BOWDOIN, a DANA, a KING, and many other illustrious characters, who are members of the convention, anti-federalism must droop, and recoil in silent shame.
I think we have every thing to hope, and very little to fear.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Centinel VIII
by Centinel & Samuel Bryan
December 29, 1787
To the People of Pennsylvania
Fellow Citizens, Under the benign influence of liberty, this country, so recently a rugged wilderness and the abode of savages and wild beasts, has attained to a degree of improvement and greatness, in less than two ages, of which history furnishes no parallel.
It is here that human nature may be viewed in all its glory; man assumes the station designed him by the creation; a happy equality and independency pervades the community; it is here the human mind, untrammeled by the restraints of arbitrary power, expands every faculty: as the field to fame and riches is open to all, it stimulates universal exertion, and exhibits a lively picture of emulation, industry and happiness.
The unfortunate and oppressed of all nations, fly to this grand asylum, where liberty is ever protected, and industry crowned with success.
But as it is by comparison only that men estimate the value of any good, they are not sensible of the worth of those blessings they enjoy, until they are deprived of them; hence from ignorance of the horrors of slavery, nations, that have been in possession of that rarest of blessings, liberty, have so easily parted with it: when groaning under the yoke of tyranny what perils would they not encounter, what consideration would they not give to regain the inestimable jewel they had lost; but the jealousy of despotism guards every avenue to freedom, and confirms its empire at the expence of the devoted people, whose property is made instrumental to their misery, for the rapacious hand of power seizes upon every thing; dispair presently succeeds, and every noble faculty of the mind being depressed, and all motive to industry and exertion being removed, the people are adapted to the nature of government, and drag out a listless existence.
If ever America should be enslaved it will be from this cause, that they are not sensible of their peculiar felicity, that they are not aware of the value of the heavenly boon, committed to their care and protection, and if the present conspiracy fails, as I have no doubt will be the case, it will be the triumph of reason and philosophy, as these United States have never felt the iron hand of power, or experienced the wretchedness of slavery.
The conspirators against our liberties have presumed too much on the maxim that nations do not take the alarm, until they feel oppression: the enlightened citizens of America have on two memorable occasions convinced the tyrants of Europe that they are endued with the faculty of foresight, that they will jealously guard against the first introduction of tyranny, however speciously glossed over, or whatever appearance it may assume.
It was not the mere amount of the duty on stamps, or tea that America opposed, they were considered as signals of approaching despotism, as precedents whereon the superstructure of arbitrary sway was to be reared.
TO BE CONTINUED ...
by Centinel & Samuel Bryan
December 29, 1787
To the People of Pennsylvania
Fellow Citizens, Under the benign influence of liberty, this country, so recently a rugged wilderness and the abode of savages and wild beasts, has attained to a degree of improvement and greatness, in less than two ages, of which history furnishes no parallel.
It is here that human nature may be viewed in all its glory; man assumes the station designed him by the creation; a happy equality and independency pervades the community; it is here the human mind, untrammeled by the restraints of arbitrary power, expands every faculty: as the field to fame and riches is open to all, it stimulates universal exertion, and exhibits a lively picture of emulation, industry and happiness.
The unfortunate and oppressed of all nations, fly to this grand asylum, where liberty is ever protected, and industry crowned with success.
But as it is by comparison only that men estimate the value of any good, they are not sensible of the worth of those blessings they enjoy, until they are deprived of them; hence from ignorance of the horrors of slavery, nations, that have been in possession of that rarest of blessings, liberty, have so easily parted with it: when groaning under the yoke of tyranny what perils would they not encounter, what consideration would they not give to regain the inestimable jewel they had lost; but the jealousy of despotism guards every avenue to freedom, and confirms its empire at the expence of the devoted people, whose property is made instrumental to their misery, for the rapacious hand of power seizes upon every thing; dispair presently succeeds, and every noble faculty of the mind being depressed, and all motive to industry and exertion being removed, the people are adapted to the nature of government, and drag out a listless existence.
If ever America should be enslaved it will be from this cause, that they are not sensible of their peculiar felicity, that they are not aware of the value of the heavenly boon, committed to their care and protection, and if the present conspiracy fails, as I have no doubt will be the case, it will be the triumph of reason and philosophy, as these United States have never felt the iron hand of power, or experienced the wretchedness of slavery.
The conspirators against our liberties have presumed too much on the maxim that nations do not take the alarm, until they feel oppression: the enlightened citizens of America have on two memorable occasions convinced the tyrants of Europe that they are endued with the faculty of foresight, that they will jealously guard against the first introduction of tyranny, however speciously glossed over, or whatever appearance it may assume.
It was not the mere amount of the duty on stamps, or tea that America opposed, they were considered as signals of approaching despotism, as precedents whereon the superstructure of arbitrary sway was to be reared.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Centinel VIII, continued ...
by Centinel & Samuel Bryan
December 29, 1787
Notwithstanding such illustrious evidence of the good sense and spirit of the people of these United States, and contrary to all former experience of mankind, which demonstrates that it is only by gradual and imperceptible degrees that nations have hitherto been enslaved, except in case of conquest by the sword; the authors of the present conspiracy are attempting to seize upon absolute power at one grasp, impatient of dominion they have adopted a decisive line of conduct, which, if successful, would obliterate every trace of liberty.
I congratulate my fellow citizens that the infatuated confidence of their enemies has so blinded their ambition, that their defeat must be certain and easy, if imitating the refined policy of successful despots, they had attacked the citadel of liberty by sap, and gradually undermined its outworks, they would have stood a fairer chance of effecting their design; but in this enlightened age thus rashly to attempt to carry the fortress by storm, is folly indeed.
They have even exposed some of their batteries prematurely, and thereby unfolded every latent view, for they unlimited power of taxation would alone have been amply sufficient for every purpose; by a proper application of this, the will and pleasure of the rulers would of course have become the supreme law of the land; therefore there was no use in portraying the ultimate object, by superadding the form to reality of supremacy in the following clause, viz. that which empowers the new congress to make all laws that may be necessary and proper for carrying into execution any of their powers, by virtue of which every possible law will be constitutional, as they are to be the sole judges of the propriety of such laws, that which ordains that their acts shall be the supreme law of the land, any thing in which the laws or the constitution of any state to the contrary notwithstanding; that which gives Congress the absolute controul over the time and mode of its appointment and election, whereby, independent of any other means, they may establish hereditary despotism; that which authorizes them to keep on foot at all times a standing army; and that which subjects that militia to absolute command – and to accelerate the subjugation of the people, trial by jury in civil cases and the liberty of the press are abolished.
So flagrant, so audacious a conspiracy against the liberties of a free people is without precedent.
Mankind in the darkest ages have never been so insulted; even then, tyrants found it necessary to pay some respect to the habits and feelings of the people, and nothing but the name of a Washington could have occasioned a moment’s hesitation about the nature of the new plan, or saved its authors from the execration and vengeance of the people, which eventually will prove an aggravation of their treason; for America will resent the imposition practised upon the unsuspicious zeal of her illustrious deliverer, and vindicate her character from the aspersions of these enemies of her happiness and fame.
TO BE CONTINUED ...
by Centinel & Samuel Bryan
December 29, 1787
Notwithstanding such illustrious evidence of the good sense and spirit of the people of these United States, and contrary to all former experience of mankind, which demonstrates that it is only by gradual and imperceptible degrees that nations have hitherto been enslaved, except in case of conquest by the sword; the authors of the present conspiracy are attempting to seize upon absolute power at one grasp, impatient of dominion they have adopted a decisive line of conduct, which, if successful, would obliterate every trace of liberty.
I congratulate my fellow citizens that the infatuated confidence of their enemies has so blinded their ambition, that their defeat must be certain and easy, if imitating the refined policy of successful despots, they had attacked the citadel of liberty by sap, and gradually undermined its outworks, they would have stood a fairer chance of effecting their design; but in this enlightened age thus rashly to attempt to carry the fortress by storm, is folly indeed.
They have even exposed some of their batteries prematurely, and thereby unfolded every latent view, for they unlimited power of taxation would alone have been amply sufficient for every purpose; by a proper application of this, the will and pleasure of the rulers would of course have become the supreme law of the land; therefore there was no use in portraying the ultimate object, by superadding the form to reality of supremacy in the following clause, viz. that which empowers the new congress to make all laws that may be necessary and proper for carrying into execution any of their powers, by virtue of which every possible law will be constitutional, as they are to be the sole judges of the propriety of such laws, that which ordains that their acts shall be the supreme law of the land, any thing in which the laws or the constitution of any state to the contrary notwithstanding; that which gives Congress the absolute controul over the time and mode of its appointment and election, whereby, independent of any other means, they may establish hereditary despotism; that which authorizes them to keep on foot at all times a standing army; and that which subjects that militia to absolute command – and to accelerate the subjugation of the people, trial by jury in civil cases and the liberty of the press are abolished.
So flagrant, so audacious a conspiracy against the liberties of a free people is without precedent.
Mankind in the darkest ages have never been so insulted; even then, tyrants found it necessary to pay some respect to the habits and feelings of the people, and nothing but the name of a Washington could have occasioned a moment’s hesitation about the nature of the new plan, or saved its authors from the execration and vengeance of the people, which eventually will prove an aggravation of their treason; for America will resent the imposition practised upon the unsuspicious zeal of her illustrious deliverer, and vindicate her character from the aspersions of these enemies of her happiness and fame.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Centinel VIII, continued ...
by Centinel & Samuel Bryan
December 29, 1787
The advocates of this plan have artfully attempted to veil over the true nature and principles of it with the names of those respectable characters that by consummate cunning and address they have prevailed upon to sign it, and what ought to convince the people of the deception and excite their apprehensions, is that with every advantage which education, the science of government and of law, the knowledge of history and superior talents and endowments, furnish the authors and advocates of this plan with, they have from its publication exerted all their power and influence to prevent all discussion of the subject, and when this could not be prevented they have constantly avoided the ground of argument and recurred to declamation, sophistry and personal abuse, but principally relied upon the magic of names.
Would this have been their conduct, if their cause had been a good one?
No, they would have invited investigation and convinced the understandings of the people.
But such policy indicates great ignorance of the good sense and spirit of the people, for if the sanction of every convention throughout the union was obtained by the means these men are practising; yet their triumph would be momentary, the favorite object would still elude their grasp; for a government founded on fraud and deception could not be maintained without an army sufficiently powerful to compel submission, which the well born of America could not speedily accomplish.
However the complexion of several of the more considerable states does not promise even this point of success.
The Carolinas, Virginia, Maryland, New-York and New-Hampshire have by their wisdom in taking a longer time to deliberate, in all probability saved themselves from the disgrace of becoming the dupes of this gilded bait, as experience will evince that it need only be properly examined to be execrated and repulsed.
TO BE CONTINUED ...
by Centinel & Samuel Bryan
December 29, 1787
The advocates of this plan have artfully attempted to veil over the true nature and principles of it with the names of those respectable characters that by consummate cunning and address they have prevailed upon to sign it, and what ought to convince the people of the deception and excite their apprehensions, is that with every advantage which education, the science of government and of law, the knowledge of history and superior talents and endowments, furnish the authors and advocates of this plan with, they have from its publication exerted all their power and influence to prevent all discussion of the subject, and when this could not be prevented they have constantly avoided the ground of argument and recurred to declamation, sophistry and personal abuse, but principally relied upon the magic of names.
Would this have been their conduct, if their cause had been a good one?
No, they would have invited investigation and convinced the understandings of the people.
But such policy indicates great ignorance of the good sense and spirit of the people, for if the sanction of every convention throughout the union was obtained by the means these men are practising; yet their triumph would be momentary, the favorite object would still elude their grasp; for a government founded on fraud and deception could not be maintained without an army sufficiently powerful to compel submission, which the well born of America could not speedily accomplish.
However the complexion of several of the more considerable states does not promise even this point of success.
The Carolinas, Virginia, Maryland, New-York and New-Hampshire have by their wisdom in taking a longer time to deliberate, in all probability saved themselves from the disgrace of becoming the dupes of this gilded bait, as experience will evince that it need only be properly examined to be execrated and repulsed.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
Centinel VIII, concluded ...
by Centinel & Samuel Bryan
December 29, 1787
The merchant, immersed in schemes of wealth, seldom extends his views beyond the immediate object of gain; he blindly pursues his seeming interest, and sees not the latent mischief; therefore it is, that he is the last to take the alarm when public liberty is threatened.
This may account for the infatuation of some of our merchants, who, elated with the imaginary prospect of an improved commerce under the new government, overlook all danger: they do not consider that commerce is the hand-maid of liberty, a plan of free growth that withers under the hand of despotism, that every concern of individuals will be sacrificed to the gratification of the men in power, who will institute injurious monopolies and shackle commerce with every device of avarice; and that property of every species will be held at the will and pleasure of rulers.
If the nature of the case did not give birth to these well-founded apprehensions, the principles and characters of the authors and advocates of the measure ought.
View the monopolising spirit of the principal of them.
See him converting a bank, instituted for common benefit, to his own and creatures emolument, and by the aid thereof, controuling the credit of the state, and dictating the measures of government.
View the vassalage of our merchants, the thralldom of the city of Philadelphia, and the extinction of that spirit of independency in most of its citizens so essential to freedom.
View this Collosus attempting to grasp the commerce of America and meeting with a sudden repulse, in the midst of his immense career, receiving a shock that threatens his very existence.
View the desperate fortunes of many of his co-adjutors and dependants, particularly the bankrupt situation of the principal instrument under the great man in promoting the new government, whose superlative arrogance, ambition and rapacity, would need the spoils of thousands to gratify; view his towering aspect, he would have no bowels of compassion for the oppressed, he would overlook all their sufferings.
Recollect the strenuous and unremitted exertions of these men, for years past, to destroy our admirable constitution, whose object is to secure equal liberty and advantages to all, and the great obstacle in the way of their ambitious schemes, and then answer, whether these apprehensions are chimerical, whether such characters will be less ambitions, less avaritious, more moderate, when the privileges, property, and every concern of the people of the United States shall lie at their mercy, when they shall be in possession of absolute sway?
Philadelphia; December 29, 1787
by Centinel & Samuel Bryan
December 29, 1787
The merchant, immersed in schemes of wealth, seldom extends his views beyond the immediate object of gain; he blindly pursues his seeming interest, and sees not the latent mischief; therefore it is, that he is the last to take the alarm when public liberty is threatened.
This may account for the infatuation of some of our merchants, who, elated with the imaginary prospect of an improved commerce under the new government, overlook all danger: they do not consider that commerce is the hand-maid of liberty, a plan of free growth that withers under the hand of despotism, that every concern of individuals will be sacrificed to the gratification of the men in power, who will institute injurious monopolies and shackle commerce with every device of avarice; and that property of every species will be held at the will and pleasure of rulers.
If the nature of the case did not give birth to these well-founded apprehensions, the principles and characters of the authors and advocates of the measure ought.
View the monopolising spirit of the principal of them.
See him converting a bank, instituted for common benefit, to his own and creatures emolument, and by the aid thereof, controuling the credit of the state, and dictating the measures of government.
View the vassalage of our merchants, the thralldom of the city of Philadelphia, and the extinction of that spirit of independency in most of its citizens so essential to freedom.
View this Collosus attempting to grasp the commerce of America and meeting with a sudden repulse, in the midst of his immense career, receiving a shock that threatens his very existence.
View the desperate fortunes of many of his co-adjutors and dependants, particularly the bankrupt situation of the principal instrument under the great man in promoting the new government, whose superlative arrogance, ambition and rapacity, would need the spoils of thousands to gratify; view his towering aspect, he would have no bowels of compassion for the oppressed, he would overlook all their sufferings.
Recollect the strenuous and unremitted exertions of these men, for years past, to destroy our admirable constitution, whose object is to secure equal liberty and advantages to all, and the great obstacle in the way of their ambitious schemes, and then answer, whether these apprehensions are chimerical, whether such characters will be less ambitions, less avaritious, more moderate, when the privileges, property, and every concern of the people of the United States shall lie at their mercy, when they shall be in possession of absolute sway?
Philadelphia; December 29, 1787
Re: POLITICAL PHILOSOPHY IN AMERICA
The Problem of Judicial Review
by Brutus
1787
Anti-Federalist Paper, #78, #79 (BRUTUS)
THE POWER OF THE JUDICIARY (PART 1)
The supreme court under this constitution would be exalted above all other power in the government, and subject to no control.
The business of this paper will be to illustrate this, and to show the danger that will result from it.
I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible.
Certain it is, that in England, and in the several states, where we have been taught to believe the courts of law are put upon the most prudent establishment, they are on a very different footing.
The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union.
I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution.
They consider themselves bound to decide according to the existing laws of the land, and never undertake to control them by adjudging that they are inconsistent with the constitution – much less are they vested with the power of giving an equitable construction to the constitution.
The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed under them.
But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress.
They are to give the constitution an explanation, and there is no power above them to set aside their judgment.
The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.
TO BE CONTINUED ...
by Brutus
1787
Anti-Federalist Paper, #78, #79 (BRUTUS)
THE POWER OF THE JUDICIARY (PART 1)
The supreme court under this constitution would be exalted above all other power in the government, and subject to no control.
The business of this paper will be to illustrate this, and to show the danger that will result from it.
I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible.
Certain it is, that in England, and in the several states, where we have been taught to believe the courts of law are put upon the most prudent establishment, they are on a very different footing.
The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union.
I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution.
They consider themselves bound to decide according to the existing laws of the land, and never undertake to control them by adjudging that they are inconsistent with the constitution – much less are they vested with the power of giving an equitable construction to the constitution.
The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed under them.
But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress.
They are to give the constitution an explanation, and there is no power above them to set aside their judgment.
The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
The Problem of Judicial Review
by Brutus
1787
Anti-Federalist Paper, #78, #79 (BRUTUS)
THE POWER OF THE JUDICIARY (PART 1), continued ...
I do not object to the judges holding their commissions during good behavior.
I suppose it a proper provision provided they were made properly responsible.
But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behavior, and have fixed salaries . . . [the authors of the constitution] have made the judges independent, in the fullest sense of the word.
There is no power above them, to control any of their decisions.
There is no authority that can remove them, and they cannot be controlled by the laws of the legislature.
In short, they are independent of the people, of the legislature, and of every power under heaven.
Men placed in this situation will generally soon feel themselves independent of heaven itself.
Before I proceed to illustrate the truth of these reflections, I beg liberty to make one remark.
Though in my opinion the judges ought to hold their offices during good behavior, yet I think it is clear, that the reasons in favor of this establishment of the judges in England, do by no means apply to this country.
The great reason assigned, why the judges in Britain ought to be commissioned during good behavior, is this, that they may be placed in a situation, not to be influenced by the crown, to give such decisions as would tend to increase its powers and prerogatives.
While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence.
If the crown wished to carry a favorite point, to accomplish which the aid of the courts of law was necessary, the pleasure of the king would be signified to the judges.
And it required the spirit of a martyr for the judges to determine contrary to the king’s will.
They were absolutely dependent upon him both for their offices and livings.
The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods or even for life.
Hence the English nation gained a great point, in favor of liberty, when they obtained the appointment of the judge, during good behavior.
They got from the crown a concession which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people.
But these reasons do not apply to this country.
We have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children.
The same arguments, therefore, which will conclude in favor of the tenure of the judge’s offices for good behavior, lose a considerable part of their weight when applied to the state and condition of America.
But much less can it be shown, that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above control.
TO BE CONTINUED ...
by Brutus
1787
Anti-Federalist Paper, #78, #79 (BRUTUS)
THE POWER OF THE JUDICIARY (PART 1), continued ...
I do not object to the judges holding their commissions during good behavior.
I suppose it a proper provision provided they were made properly responsible.
But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behavior, and have fixed salaries . . . [the authors of the constitution] have made the judges independent, in the fullest sense of the word.
There is no power above them, to control any of their decisions.
There is no authority that can remove them, and they cannot be controlled by the laws of the legislature.
In short, they are independent of the people, of the legislature, and of every power under heaven.
Men placed in this situation will generally soon feel themselves independent of heaven itself.
Before I proceed to illustrate the truth of these reflections, I beg liberty to make one remark.
Though in my opinion the judges ought to hold their offices during good behavior, yet I think it is clear, that the reasons in favor of this establishment of the judges in England, do by no means apply to this country.
The great reason assigned, why the judges in Britain ought to be commissioned during good behavior, is this, that they may be placed in a situation, not to be influenced by the crown, to give such decisions as would tend to increase its powers and prerogatives.
While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence.
If the crown wished to carry a favorite point, to accomplish which the aid of the courts of law was necessary, the pleasure of the king would be signified to the judges.
And it required the spirit of a martyr for the judges to determine contrary to the king’s will.
They were absolutely dependent upon him both for their offices and livings.
The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods or even for life.
Hence the English nation gained a great point, in favor of liberty, when they obtained the appointment of the judge, during good behavior.
They got from the crown a concession which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people.
But these reasons do not apply to this country.
We have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children.
The same arguments, therefore, which will conclude in favor of the tenure of the judge’s offices for good behavior, lose a considerable part of their weight when applied to the state and condition of America.
But much less can it be shown, that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above control.
TO BE CONTINUED ...
Re: POLITICAL PHILOSOPHY IN AMERICA
The Problem of Judicial Review
by Brutus
1787
Anti-Federalist Paper, #78, #79 (BRUTUS)
THE POWER OF THE JUDICIARY (PART 1), continued ...
I have said that the judges under this system will be independent in the strict sense of the word.
To prove this I will show that there is no power above them that can control their decisions, or correct their errors.
There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.
1st. There is no power above them that can correct their errors or control their decisions.
The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.
In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.
2nd. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment [due] to want of capacity.
It is expressly declared by the constitution, “That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office.”
The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that “the president, vice-president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.“
By this paragraph, civil officers, in which the judges are included, are removable only for crimes.
Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors.
Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors.
A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity.
To support the charge, it will be necessary to give in evidence some facts that will show, that the judges committed the error from wicked and corrupt motives.
3rd. The power of this court is in many cases superior to that of the legislature.
I have showed, in a former paper, that this court will be authorised to decide upon the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it.
In the exercise of this power they will not be subordinate to, but above the legislature.
For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power.
The legislature can only exercise such powers as are given them by the constitution; they cannot assume any of the rights annexed to the judicial; for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs.
Both are derived from the same source; both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial.
The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away.
If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature.
In England the judges are not only subject to have their decisions set aside by the house of lords, for error, but in cases where they give an explanation to the laws or constitution of the country contrary to the sense of the parliament – though the parliament will not set aside the judgment of the court - yet, they have authority, by a new law, to explain the former one, and by this means to prevent a reception of such decisions.
But no such power is in the legislature.
The judges are supreme and no law, explanatory of the constitution, will be binding on them.
TO BE CONTINUED ...
by Brutus
1787
Anti-Federalist Paper, #78, #79 (BRUTUS)
THE POWER OF THE JUDICIARY (PART 1), continued ...
I have said that the judges under this system will be independent in the strict sense of the word.
To prove this I will show that there is no power above them that can control their decisions, or correct their errors.
There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.
1st. There is no power above them that can correct their errors or control their decisions.
The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.
In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.
2nd. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment [due] to want of capacity.
It is expressly declared by the constitution, “That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office.”
The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that “the president, vice-president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.“
By this paragraph, civil officers, in which the judges are included, are removable only for crimes.
Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors.
Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors.
A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity.
To support the charge, it will be necessary to give in evidence some facts that will show, that the judges committed the error from wicked and corrupt motives.
3rd. The power of this court is in many cases superior to that of the legislature.
I have showed, in a former paper, that this court will be authorised to decide upon the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it.
In the exercise of this power they will not be subordinate to, but above the legislature.
For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power.
The legislature can only exercise such powers as are given them by the constitution; they cannot assume any of the rights annexed to the judicial; for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs.
Both are derived from the same source; both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial.
The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away.
If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature.
In England the judges are not only subject to have their decisions set aside by the house of lords, for error, but in cases where they give an explanation to the laws or constitution of the country contrary to the sense of the parliament – though the parliament will not set aside the judgment of the court - yet, they have authority, by a new law, to explain the former one, and by this means to prevent a reception of such decisions.
But no such power is in the legislature.
The judges are supreme and no law, explanatory of the constitution, will be binding on them.
TO BE CONTINUED ...