Founding America_ Documents From the Revolution to the Bill of Rights Part 16

THE NEW CONSt.i.tUTION HAS in favour of its success these circ.u.mstances-a very great weight of influence of the persons who framed it, particularly in the universal popularity of General Washington,-the good will of the commercial interest throughout the states which will give all its efforts to the establishment of a[image][image]government capable of regulating protecting and extending the commerce of the Union-the good will[image]most men of property in the several states who wish a government of the union able to protect them against domestic violence and the depredations which the democratic spirit is apt to make on property; and who are besides anxious for the respectability of the nation-the hopes of the Creditors of the United States that a general government possessing the means of doing it will pay the debt of the Union. a strong belief in the people at large of the insufficiency of the present confederation to preserve the existence of the Union and of the necessity of the union to their safety and prosperity; of course a strong desire of a change and a predisposition to receive well the propositions of the Convention.

Against its success is to be put, the dissent of two or three important men in the Convention; who will think their characters pleged to defeat the plan-the influence of many inconsiderable men in possession of considerable offices under the state governments who will fear a diminution of their consequence power and emolument by the establishment of the general government and who can hope for nothing there-the influence of some considerable men in office possessed of talents and popularity who partly from the same motives and partly from a desire of playing a a part in a convulsion for their own aggrandis.e.m.e.nt will oppose the quiet adoption of the new government-(some considerable men out of office, from motives of ambition may be disposed to act the same part)-add to these causes the disinclination of the people to taxes and of course to a strong government-the opposition of all men much in debt who will not wish to see a government established one object of which is to restrain this means of cheating Creditors-the democratical jealousy of the people which may be alarmed at the appearance of inst.i.tutions that may seem calculated to place the power of the community in few hands and to raise a few individuals to stations of great preeminence-and the influence of some foreign powers who from different motives will not wish to see an energetic government established throughout the states. part in a convulsion for their own aggrandis.e.m.e.nt will oppose the quiet adoption of the new government-(some considerable men out of office, from motives of ambition may be disposed to act the same part)-add to these causes the disinclination of the people to taxes and of course to a strong government-the opposition of all men much in debt who will not wish to see a government established one object of which is to restrain this means of cheating Creditors-the democratical jealousy of the people which may be alarmed at the appearance of inst.i.tutions that may seem calculated to place the power of the community in few hands and to raise a few individuals to stations of great preeminence-and the influence of some foreign powers who from different motives will not wish to see an energetic government established throughout the states.

In this view of the subject it is difficult to form any judgment whether the plan will be adopted or rejected. It must be essentially matter of conjecture. The present appearances and all other circ.u.mstances considered the probability seems to be on the side of its adoption.

But the causes operating against its adoption are powerful and there will be nothing astonishing in the Contrary- If it do not finally obtain, it is probable the discussion of the question will beget such struggles animosities and heats in the community that this circ.u.mstance conspiring with the real necessity real necessity of an essential change in our present situation will produce civil war. Should this happen, whatever parties prevail it is probable governments very different from the present in their principles will be established-A dismemberment of the Union and monarchies in different portions of it may be expected. It may however happen that no civil war will take place; but several republican confederacies be established between different combinations of particular states. of an essential change in our present situation will produce civil war. Should this happen, whatever parties prevail it is probable governments very different from the present in their principles will be established-A dismemberment of the Union and monarchies in different portions of it may be expected. It may however happen that no civil war will take place; but several republican confederacies be established between different combinations of particular states.

A reunion with Great Britain, from universal disgust at a state of commotion, is not impossible, though not much to be feared. The most plausible shape of such a business would be the establishment of a son of the present monarch in the supreme government of this country with a family compact.

If the government is adopted, it is probable general Washington will be the President of the United States-This will ensure a wise choice of men to administer the government and a good administration. A good administration will conciliate the confidence and affection of the people and perhaps enable the government to acquire more consistency than the proposed const.i.tution seems to promise for so great a Country-It may then triumph altogether over the state governments and reduce them to an entire subordination, dividing the large states into smaller districts. The organs of the general government may also acquire additional strength.

If this should not be the case, in the course of a few years, it is probable that the contests about the boundaries of power between the particular governments and the general government and the momentum of the larger states in such contests will produce a dissolution of the Union. This after all seems to be the most likely result.

But it is almost arrogance in so complicated a subject, depending so entirely on the incalculable fluctuations of the human pa.s.sions, to attempt even a conjecture about the event.

It will be Eight or Nine months before any certain judgment can be formed respecting the adoption of the Plan.

-Richard Henry Lee- LETTER TO GEORGE MASON.

OCTOBER 1, 1787.

I HAVE WAITED UNTIL now to answer your favor of Septr. 18th from Philadelphia, that I might inform you how the Convention plan of Government was entertained by Congress. Your prediction of what would happen in Congress was exactly verified-It was with us, as with you, this or nothing; & this urged with a most extreme intemperance-The greatness of the powers given & the mult.i.tude of Places to be created, produces a coalition of Monarchy men, Military Men, Aristocrats, and Drones whose noise, impudence & zeal exceeds all belief-Whilst the Commercial plunder of the South stimulates the rapacious Trader. In this state of things, the Patriot voice is raised in vain for such changes and securities as Reason and Experience prove to be necessary against the encroachments of power upon the indispensable rights of human nature. Upon due consideration of the Const.i.tution under which we now Act, some of us were clearly of opinion that the 13th article of the Confederation precluded us from giving an opinion concerning a plan subversive of the present system and eventually forming a New Confederacy of Nine instead of 13 States. The contrary doctrine was a.s.serted with great violence in expectation of the strong majority with which they might send it forward under terms of much approbation. Having procured an opinion that Congress was qualified to consider, to amend, to approve or disapprove-the next game was to determine that tho a right to amend existed, it would be highly inexpediant to exercise that right, but merely to transmit it with respectful marks of approbation-In this state of things I availed myself of the Right to amend, & moved the Amendments copy of which I send herewith & called the ayes & nays to fix them on the journal-This greatly alarmed the Majority & vexed them extremely-for the plan is, to push the business on with great dispatch, & with as little opposition as possible; that it may be adopted before it has stood the test of Reflection & due examination-They found it most eligible at last to transmit it merely, without approving or disapproving; provided nothing but the transmission should appear on the Journal-This compromise was settled and they took the opportunity of inserting the word Unanimously, which applied only to simple transmission, hoping to have it mistaken for an Unanimous approbation of the thing-It states that Congress having Received the Const.i.tution unanimously transmit it &c.-It is certain that no Approbation was given-This const.i.tution has a great many excellent Regulations in it and if it could be reasonably amended would be a fine System-As it is, I think 'tis past doubt, that if it should be established, either a tyranny will result from it, or it will be prevented by a Civil war-I am clearly of opinion with you that it should be sent back with amendments Reasonable and a.s.sent to it with held until such amendments are admitted-You are well acquainted with Mr. Stone & others of influence in Maryland-I think it will be a great point to get Maryld. & Virginia to join in the plan of Amendments & return it with them-If you are in correspondence with our Chancelor Pendleton it will be of much use to furnish him with the objections, and if he approves our plan, his opinion will have great weight with our Convention, and I am told that his relation to Judge Pendleton of South Carolina has decided weight in that State & that he is sensible & independent-How important will be then to procure his union with our plan, which might probably be the case, if our Chancelor was to write largely & pressingly to him on the subject; that if possible it may be amended there also. It is certainly the most rash and violent proceeding in the world to cram thus suddenly into Men a business of such infinite Moment to the happiness of Millions. One of your letter [s] will go by the Packet, and one by a Merchant Ship. My compliments if you please to Your Lady & to the young Ladies & Gentlemen.

[P.S.] Suppose when the a.s.sembly recommended a Convention to consider this new Const.i.tution they were to use some words like these-It is earnestly recommended to the good people of Virginia to send their most wise & honest Men to this Convention that it may undergo the most intense consideration before a plan shall be without amendments adopted that admits of abuses being practised by which the best interests of this Country may be injured and Civil Liberty greatly endanger'd.-This might perhaps give a decided Tone to the business- Please to send my Son Ludwell a Copy of the Amendments proposed by me to the new Const.i.tution sent herewith- -James Wilson- SPEECH ON THE CONSt.i.tUTION.

OCTOBER 6, 1787.

MR. CHAIRMAN AND FELLOW CITIZENS, Having received the honor of an appointment to represent you in the late convention, it is perhaps, my duty to comply with the request of many gentlemen whose characters and judgments I sincerely respect, and who have urged, that this would be a proper occasion to lay before you any information which will serve to explain and elucidate the principles and arrangements of the const.i.tution, that has been submitted to the consideration of the United States. I confess that I am unprepared for so extensive and so important a disquisition; but the insidious attempts which are clandestinely and industriously made to pervert and destroy the new plan, induce me the more readily to engage in its defence; and the impressions of four months constant attention to the subject, have not been so easily effaced as to leave me without an answer to the objections which have been raised.

It will be proper however, before I enter into the refutation of the charges that are alledged, to mark the leading descrimination between the state const.i.tutions, and the const.i.tution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve ; and therefore upon every question, respecting the jurisdiction of the house of a.s.sembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating fderal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed const.i.tution: for it would have been superfluous and absurd to have stipulated with a foederal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition, what controul can proceed from the foederal government to shackle or destroy that sacred palladium of national freedom? If indeed, a power similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation. With respect likewise to the particular district of ten miles, which is to be made the seat of foederal government, it will undoubtedly be proper to observe this salutary precaution, as there the legislative power will be exclusively lodged in the president, senate, and house of representatives of the United States. But this could not be an object with the convention, for it must naturally depend upon a future compact, to which the citizens immediately interested will, and ought to be parties; and there is no reason to suspect that so popular a privilege will in that case be neglected. In truth then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject-nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.

Another objection that has been fabricated against the new const.i.tution, is expressed in this disingenuous form-"the trial by jury is abolished in civil cases." I must be excused, my fellow citizens, if upon this point, I take advantage of my professional experience to detect the futility of the a.s.sertion. Let it be remembered then, that the business of the Fderal Convention was not local, but general; not limited to the views and establishments of a single state, but co-extensive with the continent, and comprehending the views and establishments of thirteen independent sovereignties. When therefore, this subject was in discussion, we were involved in difficulties which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a trial by jury differed in the different states, it was therefore impracticable on that ground to have made a general rule. The want of uniformity would have rendered any ref erence to the practice of the states idle and useless; and it could not, with any propriety, be said that "the trial by jury shall be as heretofore," since there has never existed any fderal system of jurisprudence to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions, for causes depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in courts of equity, do not require the intervention of that tribunal. How then, was the line of discrimination to be drawn? The convention found the task too difficult for them, and they left the business as it stands, in the fullest confidence that no danger could possibly ensue, since the proceedings of the supreme court, are to be regulated by the congress, which is a faithful representation of the people; and the oppression of government is effectually barred, by declaring that in all criminal cases the trial by jury shall be preserved.

This const.i.tution, it has been further urged, is of a pernicious tendency, because it tolerates a standing army in the time of peace.-This has always been a topic of popular declamation; and yet, I do not know a nation in the world, which has not found it necessary and useful to maintain the appearance of strength in a season of the most profound tranquility. Nor is it a novelty with us; for under the present articles of confederation, congress certainly possesses this reprobated power, and the exercise of that power is proved at this moment by her cantonments along the banks of the Ohio. But what would be our national situation were it otherwise? Every principle of policy must be subverted, and the government must declare war, before they are prepared to carry it on. Whatever may be the provocation, however important the object in view, and however necessary dispatch and secrecy may be, still the declaration must precede the preparation, and the enemy will be informed of your intention, not only before you are equipped for an attack, but even before you are fortified for a defence. The consequence is too obvious to require any further delineation, and no man, who regards the dignity and safety of his country, can deny the necessity of a military force, under the controul and with the restrictions which the new const.i.tution provides.

Perhaps there never was a charge made with less reasons than that which predicts the inst.i.tution of a baneful aristocracy in the foederal senate. This body branches into two characters, the one legislative, and the other executive. In its legislative character it can effect no purpose, without the co-operation of the house of representatives, and in its executive character, it can accomplish no object, without the concurrence of the president. Thus fettered, I do not know any act which the senate can of itself perform, and such dependance necessarily precludes every idea of influence and superiority. But I will confess that in the organization of this body, a compromise between contending interests is descernible; and when we reflect how various are the laws, commerce, habits, population, and extent of the confederated states, this evidence of mutual concession and accommodation ought rather to command a generous applause, than to excite jealousy and reproach. For my part, my admiration can only be equalled by my astonishment, in beholding so perfect a system, formed from such heterogeneous materials.

The next accusation I shall consider, is that which represents the foederal const.i.tution as not only calculated, but designedly framed, to reduce the state governments to mere corporations, and eventually to annihilate them. Those who have employed the term corporation upon this occasion, are not perhaps aware of its extent. In common parlance, indeed, it is generally applied to petty a.s.sociations for the ease and conveniency of a few individuals; but in its enlarged sense, it will comprehend the government of Pennsylvania, the existing union of the states, and even this projected system is nothing more than a formal act of incorporation. But upon what pretence can it be alledged that it was designed to annihilate the state governments? For, I will undertake to prove that upon their existence, depends the existence of the fderal plan. For this purpose, permit me to call your attention to the manner in which the president, senate, and house of representatives, are proposed to be appointed. The president is to be chosen by electors, nominated in such manner as the legislature of each state may direct; so that if there is no legislature, there can be no electors, and consequently the office of president cannot be supplied. The senate is to be composed of two senators from each state, chosen by the legislature; and therefore if there is no legislature, there can be no senate. The house of representatives, is to be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature,-unless therefore, there is a state legislature, that qualification cannot be ascertained, and the popular branch of the fderal const.i.tution must likewise be extinct. From this view, then it is evidently absurd to suppose, that the annihilation of the separate governments will result from their union; or, that having that intention, the authors of the new system would have bound their connection with such indissoluble ties. Let me here advert to an arrangement highly advantageous, for you will perceive, without prejudice to the powers of the legislature in the election of senators, the people at large will acquire an additional privilege in returning members to the house of representatives-whereas, by the present confederation, it is the legislature alone that appoints the delegates to Congress.

The power of direct taxation has likewise been treated as an improper delegation to the fderal government; but when we consider it as the duty of that body to provide for the national safety, to support the dignity of the union, and to discharge the debts contracted upon the collective faith of the states for their common benefit, it must be acknowledged, that those upon whom such important obligations are imposed, ought in justice and in policy to possess every means requisite for a faithful performance of their trust. But why should we be alarmed with visionary evils? will venture to predict, that the great revenue of the United States must, and always will be raised by impost, for, being at once less obnoxious, and more productive, the interest of the government will be best promoted by the accommodation of the people. Still however, the objects of direct taxation should be within reach in all cases of emergency; and there is no more reason to apprehend oppression in the mode of collecting a revenue from this resource, than in the form of an impost, which, by universal a.s.sent, is left to the authority of the fderal government. In either case, the force of civil inst.i.tutions will be adequate to the purpose; and the dread of military violence, which has been a.s.siduously disseminated, must eventually prove the mere ef fusion of a wild imagination, or a factious spirit. But the salutary consequences that must flow from thus enabling the government to receive and support the credit of the union, will afford another answer to the objections upon this ground. The State of Pennsylvania particularly, which has enc.u.mbered itself with the a.s.sumption of a great proportion of the public debt, will derive considerable relief and advantage; for, as it was the imbecility of the present confederation, which gave rise to the funding law, that law must naturally expire, when a competent and energetic fderal system shall be subst.i.tuted-the state will then be discharged from an extraordinary burthen, and the national creditor will find it to be his interest to return to his original security.

After all, my fellow citizens, it is neither extraordinary or unexpected, that the const.i.tution offered to your consideration, should meet with opposition. It is the nature of man to pursue his own interest, in preference to the public good; and I do not mean to make any personal reflection, when I add, that it is the interest of a very numerous, powerful, and respectable body to counteract and destroy the excellent work produced by the late convention. All the offices of government, and all the appointments for the administration of justice and the collection of the public revenue, which are transferred from the individual to the aggregate sovereignty of the states, will necessarily turn the stream of influence and emolument into a new channel. Every person therefore, who either enjoys, or expects to enjoy, a place of profit under the present establishment, will object to the proposed innovation; not, in truth, because it is injurious to the liberties of his country, but because it affects his schemes of wealth and consequence. I will confess indeed, that I am not a blind admirer of this plan of government, and that there are some parts of it, which if my wish had prevailed, would certainly have been altered. But, when I reflect how widely men differ in their opinions, and that every man (and the observation applies likewise to every state) has an equal pretension to a.s.sert his own, I am satisfied that any thing nearer to perfection could not have been accomplished. If there are errors, it should be remembered, that the seeds of reformation are sown in the work itself, and the concurrence of two thirds of the congress may at any time introduce alterations and amendments. Regarding it then, in every point of view, with a candid and disinterested mind, I am bold to a.s.sert, that it is the best form of government which has ever been offered to the world.

-George Mason- OBJECTIONS TO THE CONSt.i.tUTION.

OCTOBER 7, 1787.

THERE IS NO DECLARATION of Rights; and the Laws of the general Government being paramount to the Laws & Const.i.tutions of the several States, the Declarations of Rights in the separate States are no Security. Nor are the People secured even in the Enjoyment of the Benefits of the common-Law; which stands here upon no other Foundation than it's having been adopted by the respective Acts forming the Const.i.tutions of the several States.

In the House of Representatives there is not the Substance, but the Shadow only of Representation; which can never produce proper Information in the Legislature, or inspire Confidence in the People: the Laws will therefore be generally made by Men little concern' d in, and unacquainted with their Effects & Consequences. _(a) The Senate have the Power of altering all Money-Bills, and of originating Appropriations of Money, & the Sallerys of the Officers of their own Appointment in Conjunction with the President of the United States; altho' they are not the Representatives of the People, or amenable to them.- These with their other great Powers (vizt. their Power in the Appointment of Amba.s.sadors & all public Officers, in making Treaties, & in trying all Impeachments) their Influence upon & Connection with the supreme Executive from these Causes, their Duration of Office, and their being a constant existing Body almost continually sitting, join'd with their being one compleat Branch of the Legislature, will destroy any Balance in the Government, and enable them to accomplish what Usurpations they please upon the Rights & Libertys of the People.- The Judiciary of the United States is so constructed & extended, as to absorb & destroy the Judiciarys of the several States; thereby rendering Law as tedious intricate & expensive, and Justice as unattainable, by a great Part of the Community, as in England, and enabling the Rich to oppress & ruin the Poor.- The President of the United States has no const.i.tutional Council (a thing unknown in any safe & regular Government) he will therefore be unsupported by proper Information & Advice; and will generally be directed by Minions & Favourites-or He will become a Tool to the Senate-or a Council of State will grow out of the princ.i.p.al Officers of the great Departments; the worst & most dangerous of all Ingredients for such a Council, in a free Country; for they may be induced to join in any dangerous or oppressive Measures, to shelter themselves and prevent an Inquiry into their own Misconduct in Office; whereas had a const.i.tutional Council been formed (as was proposed) of six Members; vizt. two from the Eastern, two from the Middle, and two from the Southern States, to be appointed by Vote of the States in the House of Representatives, with the same Duration & Rotation of Office as the Senate, the Executive wou'd always have had safe & proper Information & Advice, the President of such a Council might have acted as Vice President of the United States, pro tempore, upon any Vacancy or Disability of the chief Magistrate; and long continued Sessions of the Senate wou'd in a great Measure have been prevented.

From this fatal Defect of a const.i.tutional Council has arisen the improper Power of the Senate, in the Appointment of public Officers, and the alarming Dependance & Connection between that Branch of the Legislature, and the supreme Executive.-Hence also sprung that unnecessary & dangerous Officer the Vice President; who for want of other Employment, is made President of the Senate ; thereby dangerously blending the executive & legislative Powers; besides always giving to some one of the States an unnecessary & unjust Pre-eminence over the others.- The President of the United States has the unrestrained Power of granting Pardons for Treason; which may be sometimes excercised to screen from Punishment those whom he had secretly instigated to commit the Crime, & thereby prevent a Discovery of his own Guilt- By declaring all Treaties supreme Laws of the Land, the Executive & the Senate have, in many Cases, an exclusive Power of Legislation; which might have been avoided, by proper Distinctions with Respect to Treaties, and requiring the a.s.sent of the House of Representatives, where it cou'd be done with Safety.- By requiring only a Majority to make all Commercial & Navigation Laws, the five Southern States (whose Produce & Circ.u.mstances are totally different from that of the eight Northern & Eastern States) will be ruined; for such rigid & premature Regulations may be made as will enable the Merchants of the Northern & Eastern States not only to demand an exorbitant Freight, but to monopolize the Purchase of the Commodities at their own Price, for many Years: to the great Injury of the landed Interest, & Impoverishment of the People: and the Danger is the greater, as the Gain on one Side will be in Proportion to the Loss on the other. Whereas requiring two thirds of the Members present in both Houses wou'd have produced mutual Moderation, promoted the general Interest, and removed an insuperable Objection to the Adoption of the Government.- Under their own Construction of the general Clause at the End of the enumerated Powers, the Congress may grant Monopolies in Trade & Commerce, const.i.tute new Crimes, inflict unusual & severe Punishments, and extend their Power as far as they shall think proper; so that the State Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights.- There is no Declaration of any kind for preserving the Liberty of the Press, the Tryal by jury in civil Causes; nor against the Danger of standing Armys in time of Peace.

The State Legislatures are restrained from laying Export-Duties on their own Produce.- The general Legislature is restrained from prohibiting the further Importation of Slaves for twenty odd Years; tho' such Importations render the United States weaker, more vulnerable, and less capable of Defence.- Both the general Legislature & the State Legislatures are expressly prohibited making ex post facto Laws; tho'there never was or can be a Legislature but must & will make such Laws, when Necessity & the public Safety require them; which will hereafter be a Breach of all the Const.i.tutions in the Union, and afford Precedents for other Innovations.- This Government will commence in a moderate Aristocracy; it is at present impossible to foresee whether it will, in it's Operation, produce a Monarchy, or a corrupt oppressive Aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.- (a) This Objection has been in some Degree lessened by an Amendment, often before refused, and at last made by an Erasure, after the Engrossment upon Parchment, of the word forty, and inserting thirty, in the 3d. Clause of the 2d. Section of the 1st. Article.-

THE CASE AGAINST THE CONSt.i.tUTION.

Melancton Smith: Letters from the Federal Farmer I-V (October 1787) PAGE 435 1787) PAGE 435 ONE OF THE MOST influential and thoughtful Anti-Federalist critics of the Const.i.tution was the New York author of Letters from the Federal Farmer. In all likelihood, this was Melancton Smith, a political ally of Governor George Clinton and a former delegate to Congress. Like other Anti-Federalists, the Federal Farmer believed that the Const.i.tution was designed to produce a "consolidation" of previously autonomous states into one overarching national authority. If the state governments survived at all, Anti-Federalists repeatedly argued, they would be hollow jurisdictions at best. All the real power to govern would be concentrated at the national level. Armed with a general authority to tax and broad legislative power, and with the Const.i.tution and federal legislation hailed as "the supreme law of the land," the national government would dominate the states.

Many Anti-Federalist writers were inclined to treat every clause of the Const.i.tution as a potential formula for tyranny. The Federal Farmer was more moderate. Rather than shrill in tone, these essays were carefully and prudently reasoned. They could not be ridiculed in the way that many Federalists commonly heaped scorn on more enthusiastic writers. These arguments had to be answered reasonably, in ways that forced Federalist writers to go beyond simple appeals to the peace and prosperity the Const.i.tution would miraculously bring and to explain why the government it would establish would be consistent with the principles of liberty.

-Melancton Smith- LETTERS FROM THE FEDERAL FARMER I-IV.

OCTOBER 1787.

I.

OCTOBER 8TH, 1787.

DEAR SIR,.

My letters to you last winter, on the subject of a well balanced national government for the United States, were the result of free enquiry ; when I pa.s.sed from that subject to enquiries relative to our commerce, revenues, past administration, etc. I antic.i.p.ated the anxieties I feel, on carefully examining the plan of government proposed by the convention. It appears to be a plan retaining some federal features; but to be the first important step, and to aim strongly to one consolidated government of the United States. It leaves the powers of government, and the representation of the people, so unnaturally divided between the general and state governments, that the operations of our system must be very uncertain. My uniform federal attachments, and the interest I have in the protection of property, and a steady execution of the laws, will convince you, that, if I am under any bia.s.s at all, it is in favor of any general system which shall promise those advantages. The instability of our laws increases my wishes for firm and steady government; but then, I can consent to no government, which, in my opinion, is not calculated equally to preserve the rights of all orders of men in the community. My object has been to join with those who have endeavoured to supply the defects in the forms of our governments by a steady and proper administration of them. Though I have long apprehended that fraudalent debtors, and embarra.s.sed men, on the one hand, and men, on the other, unfriendly to republican equality, would produce an uneasiness among the people, and prepare the way, not for cool and deliberate reforms in the governments, but for changes calculated to promote the interests of particular orders of men. Acquit me, sir, of any agency in the formation of the new system ; I shall be satisfied with seeing, if it shall be adopted, a prudent administration. Indeed I am so much convinced of the truth of Pope's maxim, that "That which is best administered is best," that I am much inclined to subscribe to it from experience. I am not disposed to unreasonably contend about forms. I know our situation is critical, and it behoves us to make the best of it. A federal government of some sort is necessary. We have suffered the present to languish ; and whether the confederation was capable or not originally of answering any valuable purposes, it is now but of little importance. I will pa.s.s by the men, and states, who have been particularly instrumental in preparing the way for a change, and, perhaps, for governments not very favourable to the people at large. A const.i.tution is now presented which we may reject, or which we may accept, with or without amendments; and to which point we ought to direct our exertions, is the question. To determine this question, with propriety, we must attentively examine the system itself, and the probable consequences of either step. This I shall endeavour to do, so far as I am able, with candor and fairness; and leave you to decide upon the propriety of my opinions, the weight of my reasons, and how far my conclusions are well drawn. Whatever may be the conduct of others, on the present occasion, I do not mean, hastily and positively to decide on the merits of the const.i.tution proposed. I shall be open to conviction, and always disposed to adopt that which, all things considered, shall appear to me to be most for the happiness of the community. It must be granted, that if men hastily and blindly adopt a system of government, they will as hastily and as blindly be led to alter or abolish it; and changes must ensue, one after another, till the peaceable and better part of the community will grow weary with changes, tumults and disorders, and be disposed to accept any government, however despotic, that shall promise stability and firmness.

The first princ.i.p.al question that occurs, is, Whether, considering our situation, we ought to precipitate the adoption of the proposed const.i.tution? If we remain cool and temperate, we are in no immediate danger of any commotions; we are in a state of perfect peace, and in no danger of invasions; the state governments are in the full exercise of their powers; and our governments answer all present exigencies, except the regulation of trade, securing credit, in some cases, and providing for the interest, in some instances, of the public debts; and whether we adopt a change, three or nine months hence, can make but little odds with the private circ.u.mstances of individuals ; their happiness and prosperity, after all, depend princ.i.p.ally upon their own exertions. We are hardly recovered from a long and distressing war: The farmers, fishmen, &c. have not yet fully repaired the waste made by it. Industry and frugality are again a.s.suming their proper station. Private debts are lessened, and public debts incurred by the war have been, by various ways, diminished; and the public lands have now become a productive source for diminishing them much more. I know uneasy men, who wish very much to precipitate, do not admit all these facts; but they are facts well known to all men who are thoroughly informed in the affairs of this country. It must, however, be admitted, that our federal system is defective, and that some of the state governments are not well administered; but, then, we impute to the defects in our governments many evils and embarra.s.sments which are most clearly the result of the late war. We must allow men to conduct on the present occasion, as on all similar ones. They will urge a thousand pretences to answer their purposes on both sides. When we want a man to change his condition, we describe it as miserable, wretched, and despised; and draw a pleasing picture of that which we would have him a.s.sume. And when we wish the contrary, we reverse our descriptions. Whenever a clamor is raised, and idle men get to work, it is highly necessary to examine facts carefully, and without unreasonably suspecting men of falshood, to examine, and enquire attentively, under what impressions they act. It is too often the case in political concerns, that men state facts not as they are, but as they wish them to be; and almost every man, by calling to mind past scenes, will find this to be true.

Nothing but the pa.s.sions of ambitious, impatient, or disorderly men, I conceive, will plunge us into commotions, if time should be taken fully to examine and consider the system proposed. Men who feel easy in their circ.u.mstances, and such as are not sanguine in their expectations relative to the consequences of the proposed change, will remain quiet under the existing governments. Many commercial and monied men, who are uneasy, not without just cause, ought to be respected; and, by no means, unreasonably disappointed in their expectations and hopes; but as to those who expect employments under the new const.i.tution; as to those weak and ardent men who always expect to be gainers by revolutions, and whose lot it generally is to get out of one difficulty into another, they are very little to be regarded: and as to those who designedly avail themselves of this weakness and ardor, they are to be despised. It is natural for men, who wish to hasten the adoption of a measure, to tell us, now is the crisis-now is the critical moment which must be seized, or all will be lost: and to shut the door against free enquiry, whenever conscious the thing presented has defects in it, which time and investigation will probably discover. This has been the custom of tyrants and their dependants in all ages. If it is true, what has been so often said, that the people of this country cannot change their condition for the worse, I presume it still behoves them to endeavour deliberately to change it for the better. The fickle and ardent, in any community, are the proper tools for establishing despotic government. But it is deliberate and thinking men, who must establish and secure governments on free principles. Before they decide on the plan proposed, they will enquire whether it will probably be a blessing or a curse to this people.

The present moment discovers a new face in our affairs. Our object has been all along, to reform our federal system, and to strengthen our governments-to establish peace, order and justice in the community-but a new object now presents. The plan of government now proposed is evidently calculated totally to change, in time, our condition as a people. Instead of being thirteen republics, under a federal head, it is clearly designed to make us one consolidated government. Of this, I think, I shall fully convince you, in my following letters on this subject. This consolidation of the states has been the object of several men in this country for some time past. Whether such a change can ever be effected in any manner; whether it can be effected without convulsions and civil wars; whether such a change will not totally destroy the liberties of this country-time only can determine.

To have a just idea of the government before us, and to shew that a consolidated one is the object in view, it is necessary not only to examine the plan, but also its history, and the politics of its particular friends.

The confederation was formed when great confidence was placed in the voluntary exertions of individuals, and of the respective states; and the framers of it, to guard against usurpation, so limited and checked the powers, that, in many respects, they are inadequate to the exigencies of the union. We find, therefore, members of congress urging alterations in the federal system almost as soon as it was adopted. It was early proposed to vest congress with powers to levy an impost, to regulate trade, etc. but such was known to be the caution of the states in parting with power, that the vestment, even of these, was proposed to be under several checks and limitations. During the war, the general confusion, and the introduction of paper money, infused in the minds of people vague ideas respecting government and credit. We expected too much from the return of peace, and of course we have been disappointed. Our governments have been new and unsettled; and several legislatures, by making tender, suspension, and paper money laws, have given just cause of uneasiness to creditors. By these and other causes, several orders of men in the community have been prepared, by degrees, for a change of government; and this very abuse of power in the legislatures, which, in some cases, has been charged upon the democratic part of the community, has furnished aristocratical men with those very weapons, and those very means, with which, in great measure, they are rapidly effecting their favourite object. And should an oppressive government be the consequence of the proposed change, posterity may reproach not only a few overbearing unprincipled men, but those parties in the states which have misused their powers.

The conduct of several legislatures, touching paper money, and tender laws, has prepared many honest men for changes in government, which otherwise they would not have thought of-when by the evils, on the one hand, and by the secret instigations of artful men, on the other, the minds of men were become sufficiently uneasy, a bold step was taken, which is usually followed by a revolution, or a civil war. A general convention for mere commercial purposes was moved for-the authors of this measure saw that the people's attention was turned solely to the amendment of the federal system; and that, had the idea of a total change been started, probably no state would have appointed members to the convention. The idea of destroying, ultimately, the state government, and forming one consolidated system, could not have been admitted-a convention, therefore, merely for vesting in congress power to regulate trade was proposed. This was pleasing to the commercial towns; and the landed people had little or no concern about it. September, 1786, a few men from the middle states met at Annapolis, and hastily proposed a convention to be held in May, 1787, for the purpose, generally, of amending the confederation-this was done before the delegates of Ma.s.sachusetts, and of the other states arrived-still not a word was said about destroying the old const.i.tution, and making a new one-The states still unsuspecting, and not aware that they were pa.s.sing the Rubicon, appointed members to the new convention, for the sole and express purpose of revising and amending the confederation-and, probably, not one man in ten thousand in the United States, till within these ten or twelve days, had an idea that the old ship was to be destroyed, and he put to the alternative of embarking in the new ship presented, or of being left in danger of sinking-The States, I believe, universally supposed the convention would report alterations in the confederation, which would pa.s.s an examination in congress, and after being agreed to there, would be confirmed by all the legislatures, or be rejected. Virginia made a very respectable appointment, and placed at the head of it the first man in America: In this appointment there was a mixture of political characters; but Pennsylvania appointed princ.i.p.ally those men who are esteemed aristocratical. Here the favourite moment for changing the government was evidently discerned by a few men, who seized it with address. Ten other states appointed, and tho' they chose men princ.i.p.ally connected with commerce and the judicial department yet they appointed many good republican characters-had they all attended we should now see, I am persuaded a better system presented. The non-attendance of eight or nine men, who were appointed members of the convention, I shall ever consider as a very unfortunate event to the United States.-Had they attended, I am pretty clear, that the result of the convention would not have had that strong tendency to aristocracy now discernable in every part of the plan. There would not have been so great an acc.u.mulation of powers, especially as to the internal police of the country, in a few hands, as the const.i.tution reported proposes to vest in them_the young visionary men, and the consolidating aristocracy, would have been more restrained than they have been. Eleven states met in the convention, and after four months close attention presented the new const.i.tution, to be adopted or rejected by the people. The uneasy and fickle part of the community may be prepared to receive any form of government; but, I presume, the enlightened and substantial part will give any const.i.tution presented for their adoption, a candid and thorough examination; and silence those designing or empty men, who weakly and rashly attempt to precipitate the adoption of a system of so much importance-We shall view the convention with proper respect-and, at the same time, that we reflect there were men of abilities and integrity in it, we must recollect how disproportionably the democratic and aristocratic parts of the community were represented-Perhaps the judicious friends and op-posers of the new const.i.tution will agree, that it is best to let it rest solely on its own merits, or be condemned for its own defects.

In the first place, I shall premise, that the plan proposed is a plan of accommodation-and that it is in this way only, and by giving up a part of our opinions, that we can ever expect to obtain a government founded in freedom and compact. This circ.u.mstance candid men will always keep in view, in the discussion of this subject.

The plan proposed appears to be partly federal, but princ.i.p.ally however, calculated ultimately to make the states one consolidated government.

The first interesting question, therefore suggested, is, how far the states can be consolidated into one entire government on free principles. In considering this question extensive objects are to be taken into view, and important changes in the forms of government to be carefully attended to in all their consequences. The happiness of the people at large must be the great object with every honest statesman, and he will direct every movement to this point. If we are so situated as a people, as not to be able to enjoy equal happiness and advantages under one government, the consolidation of the states cannot be admitted.

There are three different forms of free government under which the United States may exist as one nation; and now is, perhaps, the time to determine to which we will direct our views. 1. Distinct republics connected under a federal head. In this case the respective state governments must be the princ.i.p.al guardians of the peoples rights, and exclusively regulate their internal police; in them must rest the balance of government. The congress of the states, or federal head, must consist of delegates amenable to, and removeable by the respective states: This congress must have general directing powers; powers to require men and monies of the states; to make treaties, peace and war; to direct the operations of armies, etc. Under this federal modification of government, the powers of congress would be rather advisary or recommendatory than coercive. 2. We may do away the several state governments, and form or consolidate all the states into one entire government, with one executive, one judiciary, and one legislature, consisting of senators and representatives collected from all parts of the union: In this case there would be a compleat consolidation of the states. 3. We may consolidate the states as to certain national objects, and leave them severally distinct independent republics, as to internal police generally. Let the general government consist of an executive, a judiciary, and balanced legislature, and its powers extend exclusively to all foreign concerns, causes arising on the seas to commerce, imports, armies, navies, Indian affairs, peace and war, and to a few internal concerns of the community; to the coin, post-offices, weights and measures, a general plan for the militia, to naturalization, and, perhaps to bankruptcies perhaps to bankruptcies, leaving the internal police of the community, in other respects, exclusively to the state governments; as the administration of justice in all causes arising internally, the laying and collecting of internal taxes, and the forming of the militia according to a general plan prescribed. In this case there would be a compleat consolidation, quoad certain objects only.

Touching the first, or federal plan, I do not think much can be said in its favor: The sovereignty of the nation, without coercive and efficient powers to collect the strength of it, cannot always be depended on to answer the purposes of government; and in a congress of representatives of sovereign states, there must necessarily be an unreasonable mixture of powers in the same hands.

As to the second, or compleat consolidating plan, it deserves to be carefully considered at this time, by every American: If it be impracticable, it is a fatal error to model our governments, directing our views ultimately to it.

The third plan, or partial consolidation, is, in my opinion, the only one that can secure the freedom and happiness of this people. I once had some general ideas that the second plan was practicable, but from long attention, and the proceedings of the convention, I am fully satisfied, that this third plan is the only one we can with safety and propriety proceed upon. Making this the standard to point out, with candor and fairness, the parts of the new const.i.tution which appear to be improper, is my object. The convention appears to have proposed the partial consolidation evidently with a view to collect all powers ultimately, in the United States into one entire government ; and from its views in this respect, and from the tenacity of the small states to have an equal vote in the senate, probably originated the greatest defects in the proposed plan.

Independant of the opinions of many great authors, that a free elective government cannot be extended over large territories, a few reflections must evince, that one government and general legislation alone, never can extend equal benefits to all parts of the United States: Different laws, customs, and opinions exist in the different states, which by a uniform system of laws would be unreasonably invaded. The United States contain about a million of square miles, and in half a century will, probably, contain ten millions of people; and from the center to the extremes is about 800 miles.

Before we do away the state governments, or adopt measures that will tend to abolish them, and to consolidate the states into one entire government, several principles should be considered and facts ascertained:-These, and my examination into the essential parts of the proposed plan, I shall pursue in my next.

Your's &c.

The Federal Farmer.

II.

OCTOBER 9, 1787.

DEAR SIR,.

The essential parts of a free and good government are a full and equal representation of the people in the legislature, and the jury trial of the vicinage in the administration of justice-a full and equal representation, is that which possesses the same interests, feelings, opinions, and views the people themselves would were they all a.s.sembled-a fair representation, therefore, should be so regulated, that every order of men in the community, according to the common course of elections, can have a share in it-in order to allow professional men, merchants, traders, farmers, mechanics, etc. to bring a just proportion of their best informed men respectively into the legislature, the representation must be considerably numerous-We have about 200 state senators in the United States, and a less number than that of federal representatives cannot, clearly, be a full representation of this people, in the affairs of internal taxation and police, were there but one legislature for the whole union. The representation cannot be equal, or the situation of the people proper for one government only-if the extreme parts of the society cannot be represented as fully as the central-It is apparently impracticable that this should be the case in this extensive country-it would be impossible to collect a representation of the parts of the country five, six, and seven hundred miles from the seat of government.

Under one general government alone, there could be but one judiciary, one supreme and a proper number of inferior courts. I think it would be totally impracticable in this case to preserve a due administration of justice, and the real benefits of the jury trial of the vicinage,-there are now supreme courts in each state in the union; and a great number of county and other courts subordinate to each supreme court-most of these supreme and inferior courts are itinerant, and hold their sessions in different parts every year of their respective states, counties and districts-with all these moving courts, our citizens, from the vast extent of the country must travel very considerable distances from home to find the place where justice is administered. I am not for bringing justice so near to individuals as to afford them any temptation to engage in law suits; though I think it one of the greatest benefits in a good government, that each citizen should find a court of justice within a reasonable distance, perhaps, within a day's travel of his home; so that, without great inconveniences and enormous expences, he may have the advantages of his witnesses and jury-it would be impracticable to derive these advantages from one judiciary-the one supreme court at most could only set in the centre of the union, and move once a year into the centre of the eastern and southern extremes of it-and, in this case, each citizen, on an average, would travel 150 or 200 miles to find this court-that, however, inferior courts might be properly placed in the different counties, and districts of the union, the appellate jurisdiction would be intolerable and expensive.

If it were possible to consolidate the states, and preserve the features of a free government, still it is evident that the middle states, the parts of the union, about the seat of government, would enjoy great advantages, while the remote states would experience the many inconveniences of remote provinces. Wealth, offices, and the benefits of government would collect in the centre: and the extreme states and their princ.i.p.al towns, become much less important.

There are other considerations which tend to prove that the idea of one consolidated whole, on free principles, is ill-founded-the laws of a free government rest on the confidence of the people, and operate gently-and never can extend their influence very far-if they are executed on free principles, about the centre, where the benefits of the government induce the people to support it voluntarily ; yet they must be executed on the principles of fear and force in the extremes-This has been the case with every extensive republic of which we have any accurate account.

There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed-a free and enlightened people, in forming this compact, will not resign all their rights to those who govern, and they will fix limits to their legislators and rulers, which will soon be plainly seen by those who are governed, as well as by those who govern: and the latter will know they cannot be pa.s.sed unperceived by the former, and without giving a general alarm-These rights should be made the basis of every const.i.tution: and if a people be so situated, or have such different opinions that they cannot agree in ascertaining and fixing them, it is a very strong argument against their attempting to form one entire society, to live under one system of laws only.-I confess, I never thought the people of these states differed essentially in these respects; they having derived all these rights from one common source, the British systems; and having in the formation of their state const.i.tutions, discovered that their ideas relative to these rights are very similar. However, it is now said that the states differ so essentially in these respects, and even in the important article of the trial by jury, that when a.s.sembled in convention, they can agree to no words by which to establish that trial, or by which to ascertain and establish many other of these rights, as fundamental articles in the social compact. If so, we proceed to consolidate the states on no solid basis whatever.

But I do not pay much regard to the reasons given for not bottoming the new const.i.tution on a better bill of rights. I still believe a complete federal bill of rights to be very practicable. Nevertheless I acknowledge the proceedings of the convention furnish my mind with many new and strong reasons, against a complete consolidation of the states. They tend to convince me, that it cannot be carried with propriety very far-that the convention have gone much farther in one respect than they found it practicable to go in another ; that is, they propose to lodge in the general government very extensive powers-powers nearly, if not altogether, complete and unlimited, over the purse and the sword. But, in its organization, they furnish the strongest proof that the proper limbs, or parts of a government, to support and execute those powers on proper principles (or in which they can be safely lodged) cannot be formed. These powers must be lodged somewhere in every society; but then they should be lodged where the strength and guardians of the people are collected. They can be wielded, or safely used, in a free country only by an able executive and judiciary, a respectable senate, and a secure, full, and equal representation of the people. I think the principles I have premised or brought into view, are well founded-I think they will not be denied by any fair reasoner. It is in connection with these, and other solid principles, we are to examine the const.i.tution. It is not a few democratic phrases, or a few well formed features, that will prove its merits; or a few small omissions that will produce its rejection among men of sense; they will enquire what are the essential powers in a community, and what are nominal ones; where and how the essential powers shall be lodged to secure government, and to secure true liberty. nearly, if not altogether, complete and unlimited, over the purse and the sword. But, in its organization, they furnish the strongest proof that the proper limbs, or parts of a government, to support and execute those powers on proper principles (or in which they can be safely lodged) cannot be formed. These powers must be lodged somewhere in every society; but then they should be lodged where the strength and guardians of the people are collected. They can be wielded, or safely used, in a free country only by an able executive and judiciary, a respectable senate, and a secure, full, and equal representation of the people. I think the principles I have premised or brought into view, are well founded-I think they will not be denied by any fair reasoner. It is in connection with these, and other solid principles, we are to examine the const.i.tution. It is not a few democratic phrases, or a few well formed features, that will prove its merits; or a few small omissions that will produce its rejection among men of sense; they will enquire what are the essential powers in a community, and what are nominal ones; where and how the essential powers shall be lodged to secure government, and to secure true liberty.

In examining the proposed const.i.tution carefully, we must clearly perceive an unnatural separation of these powers from the substantial representation of the people. The state governments will exist, with all their governors, senators, representatives, officers and expences ; in these will be nineteen-twentieths of the representatives of the people; they will have a near connection, and their members an immediate intercourse with the people; and the probability is, that the state governments will possess the confidence of the people, and be considered generally as their immediate guardians.

The general government will consist of a new species of executive, a small senate, and a very small house of representatives. As many citizens will be more than three hundred miles from the seat of this government as will be nearer to it, its judges and officers cannot be very numerous, without making our governments very Letters from the federal Letters from the federal _ ___---. 447 expensive. Thus wi