Letters from the Federal Farmer to the Republican

                    Written by Richard Henry Lee in 1787.




                                  LETTER IV
                              OCTOBER 12th, 1787

DEAR SIR,

It will not be possible to establish in the federal courts the jury
trial of the vicinage so well as in the state courts.

Third, there appears to me to be not only a premature deposit of some
important powers in the general government--but many of those deposited there
are undefined, and may be used to good or bad purposes as honest or designing
men shall prevail.  By Article 1, Section 2, representatives and direct taxes
shall be apportioned among the several states, &c.--same art. sect. 8, the
congress shall have powers to lay and collect taxes, duties, &c. for the
common defence and general welfare, but all duties, imposts and excises,
shall be uniform throughout the United States: By the first recited clause,
direct taxes shall be apportioned on the states.  This seems to favor the
idea suggested by some sensible men and writers that congress, as to direct
taxes, will only have power to make requisitions; but the latter clause,
power to lay and collect taxes, &c. seems clearly to favor the contrary
opinion, and, in my mind, the true one,the congress shall have power to tax
immediately individuals, without the intervention of the state legislatures,
in fact the first clause appears to me only to provide that each state shall
pay a certain portion of the tax, and the latter to provide that congress
shall have power to lay and collect taxes, that is to assess upon, and to
collect of the individuals in the state, the states quota; but these still I
consider as undefined powers, because judicious men understand them
differently.

It is doubtful whether the vice-president is to have any qualifications;
none are mentioned; but he may serve as president, and it may be inferred, he
ought to be qualified therefore as the president; but the qualifications of
the president are required only of the person to be elected president.  By
art. 2, sect. 2, "But the congress may by law vest the appointment of such
inferior officers as they think proper in the president alone, in the courts
of jaw, or in the heads of the departments:" Who are inferior officers?  May
not a congress disposed to vest the appointment of all officers in the
president, under this clause, vest the appointment of almost every officer in
the president alone, and destroy the check mentioned in the first part of the
clause, and lodged in the senate.  It is true, this check is badly lodged,
but then some check upon the first magistrate in appointing officers, ought
it appears by the opinion of the convention, and by the general opinion, to
be established in the constitution.  By art. 3, sect. 2, the supreme court
shall have appellate jurisdiction as to law and facts with such exceptions,
&c. to what extent is it intended the exceptions shall be carried--Congress
may carry them so far as to annihilate substantially the appellate
jurisdiction, and the clause be rendered of very little importance.

4th. There are certain rights which we have always held sacred in the
United States, and recognized in all our constitutions, and which, by the
adoption of the new constitution in its present form, will be left unsecured.
By article 6, the proposed constitution, and the laws of the United States,
which shall be made in pursuance thereof; and all treaties made, or which
shall be made under the authority of the United States, shall be the supreme
law of the land; and the judges in every state shall be bound thereby;
anything in the constitution or laws of any state to the contrary
notwithstanding.

It is to be observed that when the people shall adopt the proposed
constitution it will be their last and supreme act; it will be adopted not by
the people of New Hampshire, Massachusetts, &c., but by the people of the
United States; and wherever this constitution, or any part of it, shall be
incompatible with the ancient customs, rights, the laws or the constitutions
heretofore established in the United States, it will entirely abolish them
and do them away: And not only this, but the laws of the United States which
shall be; made in pursuance of the federal constitution will be also supreme
laws, and wherever they shall be incompatible with those customs, rights,
laws or constitutions heretofore established, they will also entirely abolish
them and do them away.

By the article before recited, treaties also made under the authority of
the United States, shall be the supreme law: It is not said that these
treaties shall be made in pursuance of the constitution--nor are there any
constitutional bounds set to those who shall make them: The president and
two-thirds of the senate will be empowered to make treaties indefinitely, and
when these treaties shall be made, they will also abolish all laws and state
constitutions incompatible with them.  This power in the president and senate
is absolute, and the judges will be bound to allow full force to whatever
rule, article or thing the president and senate shall establish by treaty,
whether it be practicable to set any bounds to those who make treaties, I am
not able to say; if not, it proves that this power ought to be more safely
lodged.

The federal constitution, the laws of congress made in pursuance of the
constitution, and all treaties must have full force and effect in all parts
of the United States; and all other laws, rights and constitutions which
stand in their way must yield.  It is proper the national laws should be
supreme, and superior to state or district laws; but then the national laws
ought to yield to unalienable or fundamental rights--and national laws, made
by a few men,should extend only to a few national objects.  This will not be
the case with the laws of congress: To have any proper idea of their extent,
we must carefully examine the legislative, executive and judicial powers
proposed to be lodged in the general government, and consider them in
connection with a general clause in art. 1, sect. 8, in these words (after
enumerating a number of powers) "To make all laws which shall be necessary
and proper for carrying into execution the foregoing powers, and all other
powers vested by this constitution in the government of the United States, or
in any department or officer thereof."--The powers of this government as has
been observed, extend to internal as well as external objects, and to those
objects to which all others are subordinate; it is almost impossible to have
a just conception of their powers, or of the extent and number of the laws
which may be deemed necessary and proper to carry them into effect, till we
shall come to exercise those powers and make the laws.  In making laws to
carry those powers into effect, it is to be expected, that a wise and prudent
congress will pay respect to the opinions of a free people, and bottom their
laws on those principles which have been considered as essential and
fundamental in the British, and in our government: But a congress of a
different character will not be bound by the constitution to pay respect to
those principles.

It is said that when people make a constitution, and delegate powers,
that all powers are not delegated by them to those who govern, is reserved in
the people; and that the people, in the present case, have reserved in
themselves, and in their state governments, every right and power not
expressly given by the federal constitution to those who shall administer the
national government.  It is said, on the other hand, that the people, when
they make a constitution, yield all power not expressly reserved to
themselves.  The truth is, in either case, it is mere matter of opinion, and
men usually take either side of the argument, as will best answer their
purposes: But the general presumption being, that men who govern, will in
doubtful cases, construe laws and constitutions most favorably for increasing
their own powers; all wise and prudent people, in forming constitutions, have
drawn the line, and carefully described the powers parted with and the powers
reserved.  By the state constitutions, certain rights have been reserved in
the people; or rather, they have been recognized and established in such a
manner, that state legislatures are bound to respect them, and to make no
laws infringing upon them.  The state legislatures are obliged to take notice
of the bills of rights of their respective states.  The bills of rights, and
the state constitutions, are fundamental compacts only between those who
govern, and the people of the same state.

In the year 1788 the people of the United States made a federal
constitution, which is a fundamental compact between them and their federal
rulers; these rulers, in the nature of things, cannot be bound to take notice
of any other compact.  It would be absurd for them, in making laws, to look
over thirteen, fifteen, or twenty state constitutions, to see what rights are
established as fundamental, and must not be infringed upon, in making laws in
the society.  It is true, they would be bound to do it if the people, in
their federal compact, should refer to the state constitutions, recognize all
parts not inconsistent with the federal constitution, and direct their
federal rulers to take notice of them accordingly; but this is not the case,
as the plan stands proposed at present; and it is absurd, to suppose so
unnatural an idea is intended or implied.  I think my opinion is not only
founded in reason, but I think it is supported by the report of the
convention itself.  If there are a number of rights established by the state
constitutions, and which will remain sacred, and the general government is
bound to take notice of them--it must take notice of one as well as another;
and if unnecessary to recognize or establish one by the federal constitution,
it would be unnecessary to recognize or establish another by it.  If the
federal constitution is to be construed so far in connection with the state
constitution, as to leave the trial by jury in civil causes, for instance,
secured; on the same principles it would have left the trial by jury in
criminal causes, the benefits of the writ of habeas corpus, &c. secured; they
all stand on the same footing; they are the common rights of Americans, and
have been recognized by the state constitutions: But the convention found it
necessary to recognize or re-establish the benefits of that writ, and the
jury trial in criminal cases.  As to ex post facto laws, the convention has
done the same in one case, and gone further in another, It is a part of the
compact between the people of each state and their rulers, that no ex post
facto laws shall be made.  But the convention, by Art. 1, Sect. 10, have put
a sanction upon this part even of the state compacts.  In fact, the 9th and
10th Sections in Art. 1, in the proposed constitution, are no more nor less,
than a partial bill of rights; they establish certain principles as part of
the compact upon which the federal legislators and officers can never
infringe.  It is here wisely stipulated, that the federal legislature shall
never pass a bill of attainder, or ex post facto law; that no tax shall be
laid on articles exported, &c.  The establishing of one right implies the
necessity of establishing another and similar one.

On the whole, the position appears to me to be undeniable, that this
bill of rights ought to be carried farther, and some other principles
established, as a part of this fundamental compact between the people of the
United States and their federal rulers.

It is true, we are not disposed to differ much, at present, about
religion; but when we are making a constitution, it is to be hoped, for ages
and millions yet unborn, why not establish the free exercise of religion, as
a part of the national compact.  There are other essential rights, which we
have justly understood to be the rights of freemen; as freedom from hasty and
unreasonable search warrants, warrants not founded on oath, and not issued
with due caution, for searching and seizing men's papers, property, and
persons.  The trials by jury in civil causes, it is said, varies so much in
the several states, that no words could be found for the uniform
establishment of it.  If so, the federal legislation will not be able to
establish it by any general laws.  I confess I am of opinion it may be
established, but not in that beneficial manner in which we may enjoy it, for
the reasons before mentioned.  When I speak of the jury trial of the
vicinage, or the trial of the fact in the neighborhood, I do not lay so much
stress upon the circumstance of our being tried by our neighbors: in this
enlightened country men may be probably impartially tried by those who do not
live very near them: but the trial of facts in the neighborhood is of great
importance in other respects.  Nothing can be more essential than the cross
examining witnesses, and generally before the triers of the facts in
question.  The common people can establish facts with much more ease with
oral than written evidence; when trials of facts are removed to a distance
from the homes of the parties and witnesses, oral evidence becomes
intolerably expensive, and the parties must depend on written evidence, which
to the common people is expensive and almost useless; it must be frequently
taken ex porte, and but very seldom leads to the proper discovery of truth.

The trial by jury is very important in another point of view.  It is
essential in every free country, that common people should have a part and
share of influence, in the judicial as well as in the legislative department.
To hold open to them the offices of senators, judges, and offices to fill
which an expensive education is required, cannot answer any valuable purposes
for them; they are not in a situation to be brought forward and to fill those
offices; these, and most other offices of any considerable importance, will
be occupied by the few.  The few, the well born, &c. as Mr. Adams calls them,
in judicial decisions as well as in legislation, are generally disposed, and
very naturally too, to favor those of their own description.

The trial by jury in the judicial department, and the collection of the
people by their representatives in the legislature, are those fortunate
inventions which have procured for them, in this country, their true
proportion of influence, and the wisest and most fit means of protecting
themselves in the community.  Their situation, as jurors and representatives,
enables them to acquire information end knowledge in the affairs and
government of the society; and to come forward, in turn, as the centinels and
guardians of each other.  I am very sorry that even a few of our countrymen
should consider jurors and representatives in a different point of view, as
ignorant, troublesome bodies, which ought not to have any share in the
concerns of government.

I confess I do not see in what cases the congress can, with any pretence
of right, make a law to suppress the freedom of the press; though I am not
clear, that congress is restrained from laying any duties whatever on
printing, and from laying duties particularly heavy on certain pieces
printed, and perhaps congress may require large bonds for the payment of
these duties.  Should the printer say, the freedom of the press was secured
by the constitution of the state in which he lived, congress might, and
perhaps, with great propriety, answer, that the federal constitution is the
only compact existing between them and the people; in this compact the people
have named no others, and therefore congress, in exercising the powers
assigned them, and in making laws to carry them into execution, are
restrained by nothing beside the federal constitution, any more than a state
legislature is restrained by a compact between the magistrates and people of
a county, city, or town of which the people, in forming the state
constitution, have taken no notice.

It is not my object to enumerate rights of inconsiderable importance;
but there are others, no doubt, which ought to be established as a
fundamental part of the national system.

It is worthy of observation, that all treaties are made by foreign
nations with a confederacy of thirteen states--that the western country is
attached to thirteen states--thirteen states have jointly and severally
engaged to pay the public debts.--Should a new government be formed of nine,
ten, eleven, or twelve states, those treaties could not be considered as
binding on the foreign nations who made them.  However, I believe the
probability to be, that if nine states adopt the constitution, the others
will.

It may also be worthy our examination, how far the provision for
amending this plan, when it shall be adopted, is of any importance.  No
measures can be taken towards amendments, unless two-thirds of the congress,
or two-thirds of the legislature of the several states shall agree.--While
power is in the hands of the people, or democratic part of the community,
more especially as at present, it is easy, according to the general course of
human affairs, for the few influential men in the community, to obtain
conventions, alterations in government, and to persuade the common people
that they may change for the better, and to get from them a part of the
power: But when power is once transferred from the many to the few, all
changes become extremely difficult; the government, is this case, being
beneficial to the few, they will be exceedingly artful and adroit in
preventing any measures which may lead to a change; and nothing will produce
it, but great exertions and severe struggles on the part of the common
people.  Every man of reflection must see, that the change now proposed, is a
transfer of power from the many to the few, and the probability is, the
artful and ever active aristocracy, will prevent all peaceful measures for
changes, unless when they shall discover some favorable moment to increase
their own influence.  I am sensible, thousands of men in the United States,
are disposed to adopt the proposed constitution, though they perceive it to
be essentially defective, under an idea that amendments of it, may be
obtained when necessary.  This is a pernicious idea, it argues a servility of
character totally unfit for the support of free government; it is very
repugnant to that perpetual jealousy respecting liberty, so absolutely
necessary in all free states, spoken of by Mr. Dickinson.--However, if our
countrymen are so soon changed, and the language of 1774, is become odious to
them, it will be in vain to use the language of freedom, or to attempt to
rouse them to free enquiries.   But I shall never believe this is the case
with them, whatever present appearances may be, till I shall have very strong
evidence indeed of it.

Your's, &c.
THE FEDERAL FARMER.