 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. The Anti-Federalist Papers. Anti-Federalist No. 17. Letters from the Federal Farmer to the Republican. Letter No. 15. January 18, 1788. Dear Sir. Before I proceed to examine particularly the powers vested or which ought to be vested in each branch of the proposed government, I shall briefly examine the organization of the remaining branch, the judicial, referring the particular examination of its powers to some future letters. In forming this branch, our objects are a fair and open, a wise and impartial interpretation of the laws, a prompt and impartial administration of justice between the public and individuals, and between man and man. I believe there is no feature in a free government more difficult to be well-formed than this, especially in an extensive country where the courts must be numerous or the citizens travel to obtain justice. The Confederation empowers Congress to institute judicial courts in four cases. One, for settling disputes between individual states. Two, for determining, finally, appeals in all cases of captures. Three, for the trial of piracies and felonies committed on the high seas. And four, for the administration of martial law in the Army and Navy. The state courts, in all other cases, possess the judicial powers in all questions arising on the laws of nations, of the states, and of the states individually, nor does Congress appear to have any control over state courts, judges, or officers. The business of the judicial department is, properly speaking, judicial in part, in part executive, done by judges and juries, by certain recording and executive officers, as clerks, sheriffs, and etc. They are all properly limbs or parts of the judicial courts, and have it in charge faithfully to decide upon and execute the laws in judicial cases, between the public and individuals, between man and man. The recording and executive officers in this department may well enough be formed by legislative acts, from time to time, but the offices, the situation, the powers and duties of judges and juries are too important, as they respect the political system, as well as the administration of justice, not to be fixed on general principles by the Constitution. It is true the laws are made by the legislature, but the judges and juries, in their interpretations and in directing the execution of them, have a very extensive influence for preserving or destroying liberty, and for changing the nature of the government. It is an observation of an improved writer that judicial power is of such a nature, that when we have ascertained and fixed its limits, with all the caution and precision we can, it will be yet formidable, somewhat arbitrary and despotic. That is, after all our cares, we must leave a vast deal to the discretion and interpretation, to the wisdom, integrity and politics of the judges. These men, such as the state, even of the best laws, may do wrong, perhaps, in a thousand cases, sometimes with and sometimes without design, yet it may be impracticable to convict them of misconduct. These considerations show how cautious of free people ought to be informing this, as well as the other branches of their government, especially when connected with other considerations equally deserving of notice and attention. When the legislature makes a bad law, or the first executive magistrate usurps upon the rights of the people, they discover the evil much sooner than the abuses of power in the judicial department, the proceedings of which are far more intricate, complex and out of their immediate view. A bad law immediately excites a general alarm, a bad judicial decision, though not less pernicious in its consequences, is immediately felt, probably by a single individual only, and noticed only by his neighbors, and a few spectators in the court. In this country we have always been jealous of the legislature, and especially the executive, but not always of the judiciary, but very few men attentively consider the essential parts of it, and its proceedings as they tend to support or to destroy free government. Only a few professional men are in a situation properly to do this, and it is often alleged that instances have not frequently occurred in which they have been found very alert watchmen in the cause of liberty or in the cause of democratic republics. Add to these considerations that particular circumstances exist at this time to increase our inattention to limiting properly the judicial powers, we may fairly conclude we are more in danger of sowing the seeds of arbitrary government in this department than in any other. In the unsettled state of things in this country for several years past it has been thought that our popular legislatures have sometimes departed from the line of strict justice, while the law courts have shown a disposition more punctually to keep it. We are not sufficiently attentive to the circumstances that the measures of popular legislatures naturally settle down in time and gradually approach a mild and just medium, while the rigid systems of the law courts naturally become more severe and arbitrary. If not carefully tempered and guarded by the Constitution and by laws from time to time, it is true much has been written and said about some of these courts lately in some of the states, but all has been about their fees and but very little to the purposes as to their influence upon the freedom of the government. By article three, section one, the judicial power of the United States shall be vested in one supreme court and in such inferior courts as Congress may from time to time ordain and establish. The judges of them to hold their offices during good behavior and to receive at stated times a compensation for their services, which shall not be diminished during their continuance in office, but which I can see may be increased. By the same article two, section two, the supreme court shall have original jurisdiction in all cases affecting ambassadors and other public ministers and consuls and those in which a state shall be a party, an appellate jurisdiction both as to law and fact in all other federal causes with such exceptions and under such regulations as the Congress shall make. By the same section, the judicial power shall extend in law and equity to all the federal cases there in enumerated. By the same section, the jury trial and criminal causes except in cases of impeachment is established, but not in civil causes, and the whole state may be considered as the vincenage in cases of crimes. These clauses present to view the constitutional features of the federal judiciary. This has been called a monster by some of the opponents, and some, even of the able advocates, have confessed they do not comprehend it. For myself I confess I see some good things in it and some very extraordinary ones. There shall be one supreme court. There ought in every government to be one court in which all great questions in law shall finally meet and be determined. In Great Britain this is the House of Lords aided by all the superior judges. In Massachusetts it is at present the supreme judicial court, consisting of five judges. In New York by the Constitution it is a court consisting of the President of the Senate, the Senators, Chancellor and Judges of the Supreme Court, and in the United States the Federal Supreme Court, or this court in the last resort, may by the legislature be made to consist of three, five, or any other number of judges. The inferior federal courts are left by the Constitution to be instituted and regulated altogether as the legislature shall judge best, and it is well provided that the judges shall hold their offices during good behavior. I shall not object to the line drawn between the original and appellate jurisdiction of the supreme court, though we should for safety be obliged to form a numerous supreme court and place in it a considerable number of respectable characters. It will be found inconvenient for such a court originally to try all the causes affecting ambassadors, councils and etc. Appeals may be carried up to the supreme court under such regulations as Congress shall make. Thus far the legislature does not appear to be limited to improper rules or principles in instituting judicial courts. Indeed the legislature will have full power to form and arrange judicial courts in the federal cases enumerated at pleasure with these eight exceptions only. 1. There can be but one supreme federal judicial court. 2. This must have jurisdiction as to law and fact and the appellate causes. 3. Original jurisdiction when foreign ministers and the states are concerned. 4. The judges of the judicial courts must continue in office during good behavior, and 5. Their salaries cannot be diminished while in office. 6. There must be a jury trial and criminal causes. 7. The trial of crimes must be in the state where committed, and 8. There must be two witnesses to convict of treason. In all other respects Congress may organize the judicial department according to their discretion. The importance of this power among others proposed by the legislature, perhaps necessarily, I shall consider hereafter. Though there must by the constitution be but one judicial court in which all the rays of judicial powers as to law, equity and fact in the cases enumerated must meet. Yet this may be made by the legislature a special court consisting of any number of respectable characters or officers. The federal legislator is accepted to superintend the judicial department to try the few causes in which foreign ministers and states may be concerned and to correct errors as to law and fact in certain important causes on appeals. Next, below this judicial head there may be several courts, such as are usually called superior courts, as a court of chancery, a court of criminal jurisdiction, a court of civil jurisdiction, a court of admiralty jurisdiction, a court of vixchecker, etc., giving an appeal from these respectively to the supreme judicial court. These superior courts may be considered as so many points to which appeals may be brought up from the various inferior courts in the several branches of judicial causes. In all these superior and inferior courts the trial by jury may be established in all cases and the law and equity properly separated. In this organization only a few important causes probably would be carried up to the supreme court. The superior courts would finally settle almost all causes. This organization so far as it would respect questions of law, inferior, superior, and a special supreme court would resemble that of New York in a considerable degree and those of several other states. This I imagine we must adopt or else the Massachusetts plan, that is, a number of inferior courts and one superior or supreme court consisting of three or five or seven judges in which one supreme court, all the business shall be immediately collected from the inferior ones. The decision of the inferior courts on either plan probably will not much be relied on and in the latter plan there must be a prodigious accumulation of powers and business in all cases touching law, equity, and facts and all kinds of causes in a few hands for whose errors of ignorance or design there will be no possible remedy. As the legislature may adopt either of these or any other I shall not dwell longer on this subject. In examining the federal judiciary there appears to be some things very extraordinary and very peculiar. The judges or their friends may seize every opportunity to raise the judges' salaries but by the constitution they cannot be diminished. I am sensible how important it is that judges shall always have adequate and certain support. I am against their depending upon annual or periodical grants because these may be withheld or rendered too small by the dissent or narrowness of any one branch of the legislature. But there is a material distinction between periodical grants and salaries held under permanent and standing laws. The former and stated period cease and must be renewed by the consent of all and every part of the legislature. The latter continue of course and never will cease or be lowered unless all parts of the legislature agree to do it. A man has a permanent interest in his salary fixed by a standing law so long as he may remain in office as in any property he may possess for the laws regulating the tenure of all property are always liable to be altered by the legislature. The same judge may frequently be in office 30 or 40 years. There may often be times as in cases of war or very high prices when his salary may reasonably be increased one half or more. In a few years money may become scarce again and prices fall and his salary with equal reason and propriety be decreased and lowered. Not to suffer this to be done by consent of all the branches of the legislature is I believe quite a novelty in the affairs of government. It is true by a very forced and unnatural construction the constitution of Massachusetts by the governor and minority in the legislature was made to speak this kind of language. Another circumstance ought to be considered. The mines which have been discovered are gradually exhausted and the precious metals are continually wasting. Hence the probability is that money the nominal representative of property will gradually grow scarcer hereafter and afford just reasons for gradually lowering salaries. The value of money depends altogether upon the quantity of it in circulation which may also be decreased as well as increased from a great variety of causes. The Supreme Court in cases of appeals shall have jurisdiction both as to law and fact. That is in all civil causes carried up to the Supreme Court by appeals the court or judges shall try the fact and decide the law. Here an essential principle of the civil law is established and the most noble and important principle of the common law exploded. To dwell a few minutes on this material point the Supreme Court shall have jurisdiction both as to law and fact. What is meant by court? Is the jury included in the term or is it not? I conceive it is not included and so the members of convention I am very sure understand it. Court or curia was a term well understood long before juries existed. The people and the best writers in countries where there are no juries uniformly use the word court and can only mean by it the judge or judges who determine causes. Also in countries where there are juries we express ourselves in the same manner. We speak of the Court of Probrate, the Court of Chancery, Justice's Court, Alderman's Court, etc. in which there is no jury. In our Supreme Courts common pleas and etc. in which there are jury trials we uniformly speak of the court and jury and consider them as distinct. Where it necessary I might cite a multitude of cases from law books to confirm beyond controversy this position that the jury is not included or a part of the court. But the Supreme Court is to have jurisdiction as to law and fact under such regulations as Congress shall make. I confess it is impossible to say how far Congress may with propriety extend their regulations in this respect. I conceive however they cannot by any reasonable construction go so far as to admit the jury on true common law principles to try the fact and give a general verdict. I have repeatedly examined this article. I think the meaning of it is that the judges in all final questions as to property and damages shall have complete jurisdiction. To consider the whole cause, to examine the facts and on a general view of them and on principles of equity as well as law to give judgment. As the trial by jury is provided for in criminal causes I shall confine my observations to civil causes. And in these I hold as the established right of the jury by the common law and the fundamental laws of this country to give a general verdict in all cases when they choose to do it. To decide both as to law and fact whenever blended together in the issue put to them. Their right to determine as to facts will not be disputed and their right to give a general verdict has never been disputed except by a few judges and lawyers governed by despotic principles. Koch, Hale, Holt, Blackstone, Dalom and almost every other legal or political writer who has written on the subject has uniformly asserted this essential and important right of the jury. Juries in Great Britain and America have universally practiced accordingly. Even Mansfield with all his wishes about him dare not directly avow the contrary. What fully confirms this point is that there is no instance to be found where a jury was ever punished for finding a general verdict when a special one might with propriety have been found. The jury trial especially politically considered is by far the most important feature in the judicial department in a free country and the writing question is by far the most valuable part and the last that ought to be yielded of this trial. Juries are constantly and frequently drawn from the body of the people and free men of the country and by holding the jury's right to return a general verdict in all cases sacred we secure to the people at large their just and rightful control in the judicial department. If the conduct of judges shall be severe and arbitrary and tend to subvert the laws and change the forms of government the jury may check them by deciding against their opinions and determinations in similar cases. It is true the free men of a country are not always minutely skilled in the laws but they have a common sense in its purity which seldom or never airs in making and applying laws to the condition of the people or in determining judicial cases when stated to them by the parties. The body of the people principally bear the burdens of the community they have right ought to have a control in its important concerns both in making and executing the laws otherwise they may in a short time be ruined. Nor is it merely this control alone we are to attend to the jury trial brings with it an open and public discussion of all causes and exclude secret and arbitrary proceedings. This and the democratic branch in the legislature as was formerly observed are the means by which the people are let into the knowledge of public affairs are unable to stand as the guardians of each other's rights and to restrain by regular and legal measures those who otherwise might infringe upon them. I am not unsupported in my opinion of the value of the trial by jury not only British and American writers but the loam and the most approved foreign writers hold it to be the most valuable part of the British Constitution and indisputably the best mode of trial ever invented. It was merely by the intrigues of the Pope's clergy and of the Norman lawyers that this mode of trial was not used in maritime ecclesiastical and military courts and the civil law proceedings were introduced and I believe it is more from custom and prejudice than for any substantial reasons that we do not in all the states establish the jury in our maritime as well as other courts. In the civil law process the trial by jury is unknown the consequence is that a few judges and dependent officers possess all the power in the judicial department. Instead of the open fair proceedings of the common law where witnesses are examined in open court and may be cross examined by the parties concerned where counsel is allowed and etc. We see in the civil law process judges alone who always long previous to the trial are known and often corrupted by ministerial influence or by parties. Judges once influenced soon become inclined to yield to temptations and to decree for him who will pay the most for their impartiality. It is therefore we find in the Roman and almost all governments where judges alone possess the judicial powers and try all cases that bribery has prevailed. This as well as the forms of the courts naturally lead to secret and arbitrary proceedings to taking evidence secretly, expart and to perplexing the cause and to hasty decisions but as to jurors it is quite impracticable to bribe or influence them by any corrupt means. Not only because they are untaught in such affairs and possess the honest characters of the common freemen of a country but because it is not generally known till the hour the cause comes on for trial what persons are to form the jury. But it is said that no words could be found by which the states could agree to establish the jury trial in civil causes. I can hardly believe men to be serious who make observations to this effect. The states have all derived judicial proceedings principally from one source, the British system. From the same common source the American lawyers have almost universally drawn their legal information. All the states have agreed to establish the trial by jury in civil as well as in criminal causes. The several states in Congress found no difficulty in establishing it in the western territory in the ordinance passed in July 1787. We find that the several states in Congress in establishing government in that territory agreed that the inhabitants of it should always be entitled to the benefit of the trial by jury. Thus in a few words the jury trial is established in its full extent and the convention with as much ease have established the jury trial in criminal cases. In making a constitution we are substantially to fix principles. If in one state damages on default or assessed by a jury and in another by the judges. If in one state jurors are drawn out of a box and in another not. If there be other trifling variations they can be of no importance in the great question. Further when we examine particular practices of the states in little matters in judicial proceedings I believe we shall find they differ near as much in criminal processes as in civil ones. Another thing worthy of notice in this place the convention have used the word equity and agreed to establish a chancery jurisdiction about the meaning and extent of which we all know the several states disagree much more than about jury trials. In adopting the latter they have very generally pursued the British plan but as to the former we see the states have varied as their fears and opinions dictated. By the common law in Great Britain and America there is no appeal from the verdict of the jury as to facts to any judges whatever. The jurisdiction of the jury is complete and final in this and only errors in law are carried up to the House of Lords, the special supreme court in Great Britain or to the special supreme courts in Connecticut, New York, New Jersey and etc. Thus the juries are left masters as to facts but by the proposed constitution directly the opposite principle is established. An appeal will lay in all appellate causes from the verdict of the jury even as to mere facts to the judges of the supreme court. Thus in effect we establish a civil law in this point for if the jurisdiction of the jury be not final as to facts it is of little or no importance. By article 3 section 2 the judicial power shall extend to all cases in law and equity arising under this constitution the laws of the United States. What is here meant by equity? What is equity in a case arising under the constitution? Possibly the clause might have the same meaning where the words in law and equity omitted. Cases in law must differ widely from cases in law and equity. At first view by thus joining the word equity with the word law if we mean anything we seem to mean to give the judge a discretionary power. The word equity in Great Britain has in time acquired a precise meaning. Chancry proceedings there are now reduced to a system but this is not the case in the United States. In New England the judicial courts have no powers in cases in equity except those dealt out to them by the legislature in certain limited portions by legislative acts. In New York, Maryland, Virginia and South Carolina powers to decide in cases of equity are vested in judges distinct from those who decide in matters of law. And the states generally seem to have carefully avoided giving unlimitedly to the same judges powers to decide in cases in law and equity. Perhaps the clause would have the same meaning where the words this constitution omitted. There is in it either a careless complex misuse of words in themselves of extensive significance or there is some meaning not easily to be comprehended. Suppose a case arising under the Constitution. Suppose the question judicially moved whether by the Constitution Congress can suppress a state laid tax on poles, lands or as an excise duty which may be supposed to interfere with a federal tax. By the letter of the Constitution Congress will appear to have no power to do it but the judges may decide the question on principles of equity as well as law. Now omitting the words in law and equity they may decide according to the spirit and true meaning of the Constitution as collected from what must appear to have been the intentions of the people when they made it. Therefore it would seem that if these words mean anything they must have a further meaning. Yet I will not suppose it intended to lodge an arbitrary power or discretion in the judges to decide as their conscience their opinions their caprice or their politics might dictate. Without dwelling on this obscure clause I will leave it to the examination of others. Yours, the federal farmer. End of Anti-Federalist No. 17. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. The Anti-Federalist Papers. Anti-Federalist No. 18. Letters from the Federal Farmer to the Republican. Letter No. 16. January 20, 1788. Dear Sir, having gone through with the organization of the government I shall now proceed to examine more particularly those clauses which respect its powers. I shall begin with those articles and stipulations which are necessary for accurately ascertaining the extent of powers. And what is given and for guarding, limiting and restraining them in their exercise. We often find these articles and stipulations placed in bills of rights, but they may as well be incorporated in the body of the Constitution as selected and placed by themselves. The Constitution or whole social compact is but one instrument no more or less than a certain number of articles or stipulations agreed to by the people. Whether it consists of articles, sections, chapters, bills of rights or parts of any other denomination cannot be material. Many needless observations and idle distinctions in my opinion have been made respecting a bill of rights. On the one hand it seems to be considered as a necessary distinct limb of the Constitution and as containing a certain number of very valuable articles which are applied to all societies. And on the other is useless, especially in a federal government possessing only enumerated power, nay dangerous as individual rights are numerous and not easy to be enumerated in a bill of rights. And from articles or stipulations securing some of them it may be inferred that others not mentioned are surrendered. There appears to me to be general indefinite propositions without much meaning and the man who first advanced these and the man who first advanced those of the latter description in the present case signed the federal Constitution which directly contradicts him. The supreme power is undoubtedly in the people and it is a principle well established in my mind that they may reserve all powers not expressly delegated by them to those who govern. This is as true in forming a state as in forming a federal government. There is no possible distinction but this founded merely in the different modes of proceeding which take place in some cases. In forming a state constitution under which to manage not only the great but the little concerns of a community, the powers to be possessed by the government are often too numerous to be enumerated. The people to adopt the shortest way often give general powers, indeed all powers to the government in some general words and then by a particular enumeration take back or rather say they however reserve certain rights as sacred and which no laws shall be made to violate. Hence the idea that all powers are given which are not reserved. But in forming a federal constitution which ex-viterminé supposes state governments existing and which is only to manage a few great national concerns we often find it easier to enumerate particularly the powers to be delegated to the federal head than to enumerate particularly the individual rights to be reserved. And the principle will operate in its full force when we carefully adhere to it. When we particularly enumerate the powers given we ought either carefully to enumerate the rights reserved or be totally silent about them. We must either particularly enumerate both or else suppose the particular enumeration of the powers given adequately draws the line between them and the rights reserved, particularly to enumerate the former and not the latter. I think most advisable. However as men appear generally to have their doubts about these silent reservations we might advantageously enumerate the powers given and then in general words according to the mode adopted in the second article of the confederation clear all powers rights and privileges are reserved which are not explicitly and expressly given up. People and very wisely too like to be express and explicit about their essential rights and not be forced to claim them on precarious and unassertained tenure of inferences and general principles knowing that in any controversy between them and their rulers concerning those rights disputes may be endless and nothing certain. But admitting on the general principle that all rights are reserved of course which are not expressly surrendered the people could with sufficient certainty assert their rights on all occasions and establish them with ease. Still there are infinite advantages in particularly enumerating many of the most essential rights reserved in all cases and as to the less important ones we may declare in general terms that all not expressly surrendered are reserved. We do not by declarations change the nature of things or create new truths but we give existence or at least establish in the minds of the people truths and principles which they might never otherwise have thought of or soon forgot. If a nation means its systems religious or political shall have duration. It ought to recognize the leading principles of them in the front page of every family book. What is the usefulness of a truth in theory unless it extends constantly in the minds of the people and has their assent. We discern certain rights as the freedom of the press and the trial by jury which the people of England and of America of course believed to be sacred and essential to their political happiness. And this belief in them is the result of ideas at first suggested to them by a few able men and of subsequent experience while the people of some other countries hear these rights mentioned with the utmost indifference. They think the privilege of existing at the will of a despot much preferable to them. Why this difference amongst beings every way formed alike? The reason of the difference is obvious it is the effect of education a series of notions impressed upon the minds of the people by examples precepts and declarations. When the people of England got together at the time they formed Magna Carta they did not consider it sufficient that they were indisputably entitled to a certain natural and unalienable rights not depending on silent titles. They by a declaratory act expressly recognized them and explicitly declared to all the world that they were entitled to enjoy those rights. They made an instrument in writing and enumerated those they then thought essential or in danger and this wise men saw was not sufficient and therefore that the people might not forget these rights and gradually become prepared for arbitrary government. Their discerning and honest leaders caused this instrument to be confirmed near forty times and to be read twice a year in public places. Not that it would lose its validity without such confirmations but to fix the contents of it in the minds of the people as they successively come upon the stage. Men in some countries do not remain free merely because they are entitled to natural and unalienable rights. Men in all countries are entitled to them not because their ancestors once got together and enumerated them on paper but because by repeated negotiations and declarations all parties are brought to realize them and of course believe them to be sacred. Were it necessary I might show the wisdom of our past conduct as a people in not merely comforting ourselves that we were entitled to freedom but in constantly keeping in view in addresses bills of rights in newspapers etc. The particular principles on which our freedom must always depend. It is not merely in this point of view that I urge the engrafting in the Constitution additional declaratory articles. The distinction in itself just that all powers not given are reserved is in effect destroyed by this very Constitution as I shall particularly demonstrate. And even independent of this the people by adopting the Constitution give many general undefined powers to Congress in the constitutional exercise of which the rights in question may be affected. Gentlemen who oppose a federal bill of rights or further declaratory articles seem to view the subject in a very narrow and perfect manner. These have for their objects not only the enumeration of the rights reserved but principally to explain the general powers delegated in certain material points and to restrain those who exercise them by fixed known boundaries. Many explanations and restrictions necessary and useful would be much less so were the people at large all well and fully acquainted with the principles and affairs of government. There appears to be in the Constitution a studied brevity and it may also be probable that several explanatory articles were omitted from a circumstance very common. What we have long and clearly understood ourselves in the common concerns of the community we are apt to suppose is understood by others and need not be expressed and it is not unnatural or uncommon for the ablest men most frequently to make this mistake. To make declaratory articles unnecessary in an instrument of government two circumstances must exist. The rights reserved must be indisputably so and in their nature defined the powers delegated to the government must be precisely defined by the words that convey them and clearly be of such extent and nature as that by no reasonable construction they can be made to invade the rights and prerogatives intended to be left in the people. The first point urged is that all power is reserved not expressly given, that particular enumerated powers are only given, that all others are not given but reserved and that it is needless to attempt to restrain Congress in the exercise of powers they possess not. The reasoning is logical but of very little importance in the common affairs of men but the Constitution does not appear to respect it even in any view. To prove this I might cite several clauses in it. I shall only remark on two or three. By article one, section nine, no title of nobility shall be granted by Congress. Was this clause omitted what power would Congress have to make titles of nobility? In what part of the Constitution would they find it? The answer must be that Congress would have no such power, that the people by adopting the Constitution will not part with it. Why then by a negative clause restrain Congress from doing what it would have no power to do? This clause then must have no meaning or imply that it were omitted Congress would have the power in question either upon the principle that some general words in the Constitution may be so construed as to give it, or on the principle that Congress possess the powers not expressly reserved. But this clause was in the Confederation and is said to be introduced into the Constitution from very great caution. Even a cautionary provision implies a doubt at least that it is necessary, and if so in this case clearly it is also alike necessary in all similar ones. The fact appears to be that the people informing the Confederation and the Convention in this instance acted naturally. They did not leave the point to be settled by general principles and logical inferences, but they settled the point in a few words and all who read them at once understand them. The trial by jury and criminal as well as in civil causes has long been considered as one of our fundamental rights, and has been repeatedly recognized and confirmed by most of the state conventions. But the Constitution expressly establishes this trial in criminal and wholly omits it in civil causes. The jury trial in criminal causes and the benefit of the writ of habeas corpus are already as effectually established as any of the fundamental or essential rights of the people in the United States. This being the case, why in adopting a federal Constitution do we now establish these and omit all others, or all others at least with a few exceptions, such as again agreeing there shall be no ex post facto laws, no titles of nobility, etc. We must consider this Constitution when adopted as the supreme act of the people, and in construing it hereafter, we and our posterity must strictly adhere to the letter and spirit of it, and in no instance depart from them. In construing the federal Constitution it will not only be impracticable but improper to refer to the state constitutions. They are entirely distinct instruments and inferior acts. Besides, by the people's now establishing certain fundamental rights, it is strongly implied that they are of opinion that they would not otherwise be secured as a part of the federal system, or be regarded in the federal administration as fundamental. Further, these same rights being established by the state constitutions and secured to the people, our recognizing them now implies that the people thought them insecure by the state establishments, and extinguished or put afloat by the new arrangement of the social system unless re-established. Further, the people thus establishing some few rights and remaining totally silent about others' similarly circumstance, the implication indubitably is that they mean to relinquish the latter, or at least feel indifferent about them. Rights, therefore, inferred from general principles of reason, being precarious and hardly ascertainable in the common affairs of society, and the people informing a federal Constitution explicitly showing they conceived these rights to be thus circumstance, and accordingly proceed to enumerate and establish some of them, the conclusion will be that they have established all which they esteem valuable and sacred. On every principle then, the people especially having began ought to go through enumerating and establish particularly all the rights of individuals which can by any possibility come in question in making and executing federal laws. I have already observed upon the excellency and importance of the jury trial in civil as well as in criminal causes. Instead of establishing it in criminal causes only, we ought to establish it generally. Instead of the clause of forty or fifty words relative to this subject, why not use the language that has always been used in this country and say, The people of the United States shall always be entitled to the trial by jury. This would show the people still hold the right sacred, and enjoying it upon Congress substantially to preserve the jury trial in all cases according to the usage and custom of the country. I have observed before that it is the jury trial we want. The little different appendages and modifications tacked to it in the different states are no more than a drop in the ocean. The jury trial is a solid, uniform feature in a free government. It is the substance we would save, not the little articles of form. Security against ex post facto laws, the trial by jury, and the benefits of the writ of habeas corpus are but a part of those inestimable rights the people of the United States are entitled to. Even in judicial proceedings, by the course of the common law. These may be secured in general words, as in New York, the Western Territory, etc., by declaring the people of the United States shall always be entitled to judicial proceedings according to the course of the common law, as used and established in the said states. Perhaps it would be better to enumerate the particular essential rights the people are entitled to in these proceedings, as has been done in many of the states and as has been done in England. In this case the people may proceed to declare that no man shall be held to answer to any office till the same be fully described to him, nor to furnish evidence against himself that, except in the government of the army and navy, no person shall be tried for any offense, whereby he may incur loss of life or an infamous punishment until he be first indicted by a grand jury, that every person shall have a right to produce all proofs that may be favorable to him, and to meet the witnesses against him face to face, that every person shall be entitled to obtain right and justice freely and without delay, that all persons shall have a right to be secure from all unreasonable searches and seechers of their persons, houses, papers or possessions, and that all warrants shall be deemed contrary to this right if the foundation of them be not previously supported by oath, and there not be in them a special designation of persons or objects of search, arrest or seizure, and that no person shall be exiled or molested in his person or effects otherwise than by the judgment of his peers or according to the law of the land. The celebrated writer observes upon this last article that if in itself it may be said to comprehend the whole, that in itself it may be said to comprehend the whole end of political society. These rights are not necessarily reserved, they are established or enjoyed but in a few countries. They are stipulated rights almost peculiar to British and American laws. In the execution of those laws, individuals by long custom, by Magna Carta, bills of rights, etc., have become entitled to them. A man at first, by act of parliament, became entitled to the benefits of the writ of habeas corpus. Men are entitled to these rights and benefits in the judicial proceedings of our state courts generally, but it will by no means follow that they will be entitled to them in the federal courts and have a right to assert them unless secured and established by the constitution or federal laws. We certainly in federal processes might as well claim the benefits of the writ of habeas corpus as to claim trial by a jury. The right to have counsel, to have witnesses face to face, to be secure against unreasonable search warrants, etc., was the constitution silent as to the whole of them, but the establishment of the former will events that we could not claim them without it, and the omission of the latter implies they are relinquished or deemed of no importance. These are rights and benefits individuals acquired by compact. They must claim them again under compacts or immemorial usage. It is doubtful at least whether they can be claimed under immemorial usage in this country, and it is therefore we generally claim them under compacts as charters and constitutions. The people by adopting the federal constitution give Congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them under the eight limitations mentioned in a former letter, and the further one that the benefits of the habeas corpus act shall be enjoyed by individuals. Thus general powers being given to institute courts and regulate their proceedings with no provision for securing the rights principally in question may not Congress so exercise those powers and constitutionally too as to destroy those rights. Clearly in my opinion they are not in any degree secured, but admitting the case is only doubtful, would it not be prudent and wise to secure them and remove all doubts, since all agree that people ought to enjoy these valuable rights, a very few men accepted who seem to be rather of opinion that there is little or nothing in them. Were it necessary I might add many observations to show their value and political importance. The constitution will give Congress general powers to raise and support armies. General powers carry with them incidental ones and the means necessary to the end. In the exercise of these powers is there any provision in the constitution to prevent the quartering of soldiers on the inhabitants? You will answer there is not. This may sometimes be deemed a necessary measure in the support of armies. On what principle can the people claim the right to be exempt from this burden? They will urge perhaps the practice of the country and the provisions made in some of the state constitutions. They will be answered that their claim thus to be exempt is not founded in nature, but only in custom and opinion or at best in stipulations in some of the state constitutions which are local and inferior in their operation and can have no control over the general government. That they had adopted a federal constitution had noticed several rights but had been totally silent about this exemption. That they had given general powers relative to the subject which in their operation regularly destroyed the claim. Though it is not to be presumed that we are in any immediate danger from this quarter, it is fit and proper to establish beyond dispute those rights which are particularly valuable to individuals and essential to the permanency and duration of free government. An excellent writer observes that the English always in possession of their freedom are frequently unmindful of the value of it. We at this period do not seem to be so well off having in some instances abused ours. Many of us are quite disposed to barter it away for what we call energy coercion and some other terms we use vaguely as that of liberty. There is often as great a rage for change in novelty and politics as in amusements and fashions. All parties apparently agree that the freedom of the press is a fundamental right and not to be restrained by any taxes, duties, or in any manner whatever. We should not the people in adopting a federal constitution declare this even if there are only doubts about it. But, say the advocates, all powers not given are reserved. True, but the great question is, are not powers given in the exercise of which this right may be destroyed? The peoples or the printers claim to a free press is founded on the fundamental laws, that is, compacts and state constitutions, made by the people. The people who can annihilate or alter those constitutions can annihilate or limit this right. This may be done by giving general powers as well as by using particular words. No right claimed under a state constitution will avail against a law of the union made in pursuance of the federal constitution. Therefore the question is, what laws will Congress have a right to make by the constitution of the union and particularly touching the press? By article 1, section 8, Congress will have the power to lay and collect taxes, duties, imposts, and excise. By this, Congress will clearly have power to lay and collect all kind of taxes, whatever. Taxes on houses, lands, polls, industry, merchandise, etc. Taxes on deeds, bonds, and all written instruments. On rits, pleas, and all judicial proceedings. On licenses, naval office papers, etc. On newspapers, advertisements, etc. And to require bonds of the naval officers, clerks, printers, etc. To account for the taxes that may become due on papers that go through their hands. Printing, like all other business, must cease when taxed beyond its profits. And it appears to me that a power to tax the press at discretion is a power to destroy or restrain the freedom of it. There may be other powers given in the exercise of which this freedom may be affected and certainly it is of too much importance to be left thus liable to be taxed and constantly to constructions and inferences. A free press is the channel of communication as to mercantile and public affairs. By means of it, the people in large countries ascertain each other's sentiments, are enabled to unite and become formidable to those rulers who adopt improper measures. Newspapers may sometimes be the vehicles of abuse and of many things not true but these are but small inconveniences in my mind among many advantages. A celebrated writer I have several times quoted speaking on high terms of the English liberties says, Lastly, the keystone was put to the arch by the final establishment of the freedom of the press. I shall not dwell longer upon the fundamental rights, to some of which I have attended in this letter, for the same reasons that these I have mentioned ought to be expressly secured, less than the exercise of general powers given they may be invaded. It is pretty clear that some other of less importance or less endanger might with propriety also be secured. I shall now proceed to examine briefly the powers proposed to be vested in the several branches of the government and especially the mode of laying and collecting internal taxes. Yours, the federal farmer. End of Anti-Federalist number 18. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. The Anti-Federalist Papers. Anti-Federalist number 19. Letters from the federal farmer to the Republican. Letter number 17. January 23, 1788. Dear sir, I believe the people of the United States are full in the opinion that a free and mild government can be preserved in their extensive territories only under the substantial forms of a federal republic. As several of the ableist advocates for the system proposed have acknowledged this and I hope the confessions they have published will be preserved and remembered, I shall not take up time to establish this point. A question then arises how far that system partakes of a federal republic. I observed in a former letter that it appears to be the first important step to a consolidation of the states, that its strong tendency is to that point. But what do we mean by a federal republic and what by a consolidated government? To erect a federal republic we must first make a number of states on republican principles, each state with a government organized for the internal management of its affairs. The states as such must unite under a federal head and delegate to it powers to make and execute laws in certain enumerated cases under certain restrictions. This head may be a single assembly like the present congress or the infiction at council or it may consist of a legislature with one or more branches of an executive and of judiciary. To form a consolidated or one entire government there must be no state or local governments but all things, persons and property must be subject to the laws of one legislature alone, to one executive and one judiciary. Each state government as the government of New Jersey, etc., is a consolidated or one entire government as it respects the counties, towns, citizens and property within the limits of the state. The state governments are the basis, the pillar on which the federal head is placed all together when formed on elective principles constitute a federal republic. A federal republic in itself supposes state or local governments to exist as the body or props on which the federal head rests and that it cannot remain a moment after they cease. In erecting the federal government and always in its councils each state must be known as a sovereign body. But in erecting this government I conceive the legislature of the state by the expressed or implied ascent of the people or the people of the state under the direction of the government of it may accede to the federal compact. Nor do I conceive it to be necessarily a part of a confederacy of states that each have an equal voice in the general councils. A confederated republic being organized each state must retain powers for managing its internal police and all delegate to the union power to manage general concerns. The quantity of power the union must possess is one thing. The mode of exercising the powers given is quite a different consideration and it is the mode of exercising them that makes one of the essential distinctions between one entire or consolidated government and a federal republic. That is, however the government may be organized, if the laws of the union in most important concerns as in levying and collecting taxes, raising troops, et cetera, operate immediately upon the persons and property of individuals and not on states, extend to organizing the militia, et cetera, the government as to its administration as to making and executing laws is not federal but consolidated. To illustrate my idea the union makes a requisition and assigns to each state its quota of men or monies wanted. Each state by its own laws and officers in its own way furnishes its quota. Here the state government stand between the union and individuals. The laws of the union operate only on states as such and federally. Here nothing can be done without the meetings of the state legislatures but in the other case the union though the state legislatures should not meet for years together proceeds immediately by its own laws and officers to levy and collect monies of individuals to enlist men, form armies, et cetera. Here the laws of the union operate immediately on the body of the people, on persons and property, in the same manner the laws of one entire consolidated government operate. These two modes are very distinct and in their operation and consequences have directly opposite tendencies. The first makes the existence of the state government's indispensable and throws all the detailed business of levying and collecting taxes, et cetera into the hands of those governments. And into the hands, of course, of many thousand officers solely created by independent on the state. The last entirely excludes the agency of the respective states and throws the whole business of levying and collecting taxes, et cetera into the hands of many thousand officers solely created by and dependent upon the union and makes the existence of the state government of no consequence in the case. It is true Congress in raising any given sum and direct taxes must by the Constitution raise so much of it in one state and so much in another by a fixed rule which most of the states sometimes since agreed to. But this does not affect the principle in question. It only secures each state against any arbitrary proportions. The federal mode is perfectly safe and eligible. Founded in the true spirit of a confederated republic there could be no possible exception to it. Did we not find by experience that the states will sometimes neglect to comply with the reasonable requisitions of the union? It being according to the fundamental principles of federal republics to raise men and moneys by requisitions and for the states individually to organize and train the militia I conceive there can be no reason whatever for departing from them except this, that the states sometimes neglect to comply with reasonable requisitions and that it is dangerous to attempt to compel a delinquent state by force as it may often produce a war. We ought therefore to inquire intensively how extensive the evils to be guarded against are and cautiously limit the remedies to the extent of the evils. I am not about to defend the confederation or to charge the proposed constitution with imperfections not in it. But we ought to examine facts and strip them of the false colorings often given them by incautious observers, by unthinking or designing men. We ought to premise that laws for raising men and moneys even in consolidated governments are not often punctually complied with. Historians accept in extraordinary cases but very seldom take notice of the detailed collection of taxes. But these facts we have fully proved and well attested that the most energetic governments have relinquished taxes frequently, which were of many years standing. These facts amply prove that taxes assessed have remained many years uncollected. I agree there have been instances in the republics of Greece, Holland, etc. in the course of several centuries of states neglecting to pay their quotas of requisitions. But it is a circumstance certainly deserving of attention whether these nations which have depended on requisitions principally for their defense have not raised men and moneys nearly as punctually as entire governments which have taxed directly, whether we have not found the latter as often distressed for the want of troops and moneys as the former. It has been said that the infiction at council and the Germanic head have not possessed sufficient powers to control the members of the republic in a proper manner. Is this, if true, to be imputed to requisitions? Is it not principally to be imputed to the unequal powers of those members connected with this important circumstance that each member possessed power to league itself with foreign powers and powerful neighbors without the consent of the head? After all, has not the Germanic body a government as good as its neighbors in general? And did not the Grecian Republic remain united several centuries and form the theater of human greatness? No government in Europe has commanded moneys more plentifully than the government of Holland. As to the United States, the separate states lay taxes directly and the union calls for taxes by way of requisitions. And is it a fact that more moneys are due in proportion on requisitions in the United States than on the state taxes directly laid? It is but about ten years since Congress begun to make requisitions and in that time the moneys, et cetera, required and the bounties given for men required of the states have amounted species value to about thirty six millions dollars about twenty four millions of dollars of which have been actually paid and a very considerable part of the twelve millions not paid remains so not so much from the neglect of the states as from the sudden changes in paper money, et cetera which in a great measure rendered payments of no service and which often induced the union indirectly to relinquish one demand by making another in a different form. Before we totally condemn requisitions we ought to consider what immense bounties the states gave and what prodigious exertions they made in the war in order to comply with the requisitions of Congress and if since the peace they have been delinquent ought we not carefully to inquire whether that delinquency is to be imputed solely to the nature of requisitions ought it not in part to be imputed to two other causes I mean first an opinion that has extensively prevailed that the requisitions for domestic interest have not been founded on just principles and secondly the circumstance that the government itself by proposing impost, et cetera has departed virtually from the constitutional system which proposed changes, like all changes proposed in government produce an inattention and negligence in the execution of the government in being I am not for depending wholly on requisitions but I mention these few facts to show they are not so totally futile as many pretend for the truth of many of these facts I appeal to the public records and for the truth of the others I appeal to many Republican characters who are best informed in the affairs of the United States since the peace until the convention reported the wisest men in the United States generally supposed that certain limited funds would answer the purposes of the union and though the states are by no means in so good a condition as I wish they were yet I think I may very safely affirm they are in a better condition than they would be had Congress always possessed the powers of taxation now contended for the fact is admitted that our federal government does not possess sufficient powers to give life and vigor to the political system and that we experience disappointments and several inconveniences but we ought carefully to distinguish those which are merely the consequences of a severe and tedious war from those which arise from defects in the federal system there has been an entire revolution in the United States within 13 years and the least we can compute the waste of labor and property at during that period by the war is 300 million of dollars our people are like a man just recovering from a severe fit of sickness it was the war that disturbed the course of commerce introduced floods of paper money the stagnation of credit and through many valuable men out of steady business from these sources our greatest evils arise men of knowledge and reflection must perceive it but then have we not done more in three or four years past in repairing the injuries of the war by repairing houses and estates restoring industry, frugality, the fisheries, manufacturers, etc. and thereby laying the foundation of good government and of individual and political happiness than any people ever did in a like time we must judge from a view of the country and the facts and not from foreign newspapers or our own which are printed chiefly in the commercial towns where imprudent living, imprudent importations and many unexpected disappointments have produced a despondency and a disposition to view everything on the dark side some of the evils we feel all will agree ought to be imputed to the defective administration of the governments from these and various considerations I am very clearly of opinion that the evils we sustain merely on account of the defects of the confederation are but as a feather in the balance against a mountain compared with those which would infallibly be the result of the loss of general liberty and that happiness men enjoy under a frugal free and mild government Here to four we do not seem to have seen danger anywhere but in giving power to Congress and now nowhere but in Congress wanting powers and without examining the extent of the evils to be remedied by one step we are forgiving up to Congress almost all powers of any importance without limitation the defects of the confederation are extravagantly magnified and every species of pain we feel imputed to them and hence it is inferred there must be a total change of the principles as well as forms of government and in the main point touching the federal powers we rest all on a logical inference totally inconsistent with experience and sound political reasoning it is said that as the federal head must make peace and war and provide for the common defense it ought to possess all powers necessary to that end that powers unlimited as to the person's sword to raise men and monies and form the militia are necessary to that end and therefore the federal head ought to possess them this reasoning is far more specious than solid it is necessary that these powers so exist in the body politic as to be called into exercise whenever necessary for the public safety but it is by no means true that the man or Congress of men whose duty it more immediately is to provide for the common defense ought to possess them without limitation but clear it is that if such men or Congress be not in a situation to hold them without danger to liberty he or they ought not to possess them it has long been thought to be a well-founded position that the purse and sword ought not to be placed in the same hands in a free government our wise ancestors have carefully separated them placed the sword in the hands of their king even under considerable limitations and the purse in the hands of the commons alone yet the king makes peace and war and it is his duty to provide for the common defense of the nation the authority at least goes thus far that a nation well versed in the science of government does not conceive it to be necessary or expedient for the man interested with the common defense and general tranquility to possess unlimitedly the powers in question or even in any considerable degree could he whose duty it is to defend the public possessing himself independently all the means of doing it consistent with the public good it might be convenient but the people of England know that their liberties and happiness would be in infinitely greater danger from the king's unlimited possession of these powers than from all external enemies and internal commotions in which they might be exposed therefore though they have made it his duty to guard the empire yet they have wisely placed in other hands the hands of the representatives the power to deal out and control the means in Holland their high mightiness must provide for the common defense but for the means they depend in a considerable degree upon the requisitions made on the state or local assemblies reason and facts events that however convenient it might be for an executive magistrate or federal head more immediately charged with the national defense and safety solely directly and independently to possess all the means yet such magistrate or head never ought to possess them if thereby the public liberties shall be endangered the powers in question never have been by nations wise and free deposited nor can they ever be with safety anywhere but in the principal members of the national system where these form one entire government as in great Britain they are separated and lodged in the principal members of it but in a federal republic there is quite a different organization the people form this kind of government generally because their territories are too extensive to admit of their assembling in one legislature or of executing the laws on free principles under one entire government they convene in their local assemblies for local purposes and for managing their internal concerns and unite their states under a federal head for general purposes it is the essential characteristic of a confederated republic that this head be dependent on and kept within limited bounds by the local governments and it is because in these alone in fact the people can be substantially assembled or represented it is therefore we universally see in this kind of government the congressional powers placed in a few hands and accordingly limited and specifically enumerated and the local assemblies strong and well guarded and composed of numerous members wise men will always place the controlling power where the people are substantially collected by their representatives by the proposed system the federal head will possess without limitation almost every species of power that can in its exercise tend to change the government or to endanger liberty while in it I think it has been fully shown the people will have but the shadow of representation and but the shadow of security for their rights and liberties in a confederated republic the division of representation in its nature requires a correspondent division and deposit of powers relative to taxes and military concerns and I think the plan offered stands quite alone in confounding the principles of governments in themselves totally distinct I wish not to exculpate the states for their improper neglects and not paying their quotas of requisitions but in applying the remedy we must be governed by reason and facts it will not be denied that the people have a right to change the government when the majority choose it if not restrained by some existing compact that they have a right to displace their rulers and consequently to determine when their measures are reasonable or not and that they have a right at any time to put a stop to those measures they may deem prejudicial to them by such forms and negatives as they may see fit to provide from all these and many other well founded considerations I need not mention a question arises what powers shall there be delegated to the federal head to ensure safety as well as energy in the government I think there is a safe and proper medium pointed out by experience by reason and facts when we have organized the government we ought to give power to the union so far only as experience and present circumstances shall direct with a reasonable regard to time to come should future circumstances contrary to our expectations require that further powers be transferred to the union we can do it far more easily than get back those we may now imprudently give the system proposed is untried candid advocates and opposers admit that it is in a degree a mere experiment and that its organization is weak and imperfect surely then the safe ground is cautiously to vest power in it and when we are sure we have given enough for ordinary exigencies be extremely careful how we delegate powers which in common cases must necessarily be useless or abused and a very uncertain effects in uncommon ones by giving the union power to regulate commerce and to levy and collect taxes by imposts we give it an extensive authority and permanent productive funds I believe quite as adequate to the present demands of the union as excises and direct taxes can be made to the present demands of the separate states the state governments are now about four times as expensive as that of the union and their several state debts added together are nearly as large as that of the union our impost duties since the peace have been almost as productive as the other sources of taxation and when under one general system of regulations the probability is that those duties will be very considerably increased indeed the representation proposed will hardly justify giving to congress unlimited powers to raise taxes by imposts in addition to the other powers the union must necessarily have it is said that if congress possess only authority to raise taxes by imposts trade probably will be overburdened with taxes and the taxes of the union be found inadequate to any uncommon exigencies to this we may observe that trade generally finds its own level and will naturally and necessarily heave off any undue burdens laid upon it further if congress alone possess the impost and also unlimited power to raise monies by excises and direct taxes there must be much more danger that to taxing powers the union and states will carry excises and direct taxes to an unreasonable extent especially as these have not the natural boundaries taxes on trade have however it is not my object to propose to exclude congress from raising monies by internal taxes as by duties excises and direct taxes but my opinion is that congress especially in its proposed organization ought not to raise monies by internal taxes except in strict conformity to the federal plan that is by the agency of the state governments in all cases except where a state shall neglect for an unreasonable time to pay its quota of a requisition and never where so many of the state legislatures as represent a majority of the people shall formally determine an excise law or requisition is improper in their next session after the same be laid before them we ought always to recollect that the evil to be guarded against is found by our own experience and the experience of others to be mere neglect in the states to pay their quotas and power in the union to levy and collect the neglecting states quotas with interest is fully adequate to the evil by this federal plan with this exception mentioned we secure the means of collecting taxes by the usual process of law and avoid the evil of attempting to compel or coerce a state and we also avoid a circumstance which never yet could be and I am fully confident never can be admitted in a free federal republic I mean a permanent and continued system of tax laws of the union executed in the bowels of the states by many thousand officers dependent as to the assessing and collecting federal taxes solely upon the union on every principle then we ought to provide that the union render an exact account of all monies raised by impost and other taxes and that whenever monies shall be wanted for the purposes of the union beyond the proceeds of the impost duties requisitions shall be made on the states for the monies so wanted and that the power of laying and collecting shall never be exercised except in cases where a state shall neglect a given time to pay its quota this mode seems to be strongly pointed out by the reason of the case and the spirit of the government and I believe there is no instance to be found in a federal republic where the congressional powers ever extended particularly to collecting monies by direct taxes or excises creating all these restrictions still in the powers of the union in matters of taxation will be too unlimited further checks in my mind are indispensably necessary nor do I conceive that as full a representation is as practicable in the federal government will afford sufficient security the strength of the government and the confidence of the people must be collected principally in the local assemblies every part or branch of the federal head must be feeble and unsafely trusted with large powers a government possessed of more power than its constituent parts will justify will not only probably abuse it but be unequal to bear its own burden it may as soon be destroyed by the pressure of power as language and parish for want of it there are two ways of raising checks and guarding against undue combinations and influence in a federal system the first is in levying taxes raising and keeping up armies in building navies informing plans for the militia and in appropriating monies for the support of the military to require the attendance of a large proportion of the federal representatives as two thirds or three fourths of them and in passing laws in these important cases to require the consent of two thirds or three fourths of the members present the second is by requiring that certain important laws of the federal head as a requisition or law for raising monies by excise shall be laid before the state legislatures and if disapproved of by a given number of them say by as many of them as represent a majority of the people the law shall have no effect whether it would be advisable to adopt both or either of these checks I will not undertake to determine we have seen them both exist in confederated republics the first exists substantially in the confederation and will exist in some measure in the plan proposed as in choosing a president by the house in expelling members in the senate in making treaties and in deciding on impeachments and in the whole in altering the constitution the last exists in the united netherlands but in a much greater extent the first is founded on this principle that these important measures may sometimes be adopted by a bare quorum of members perhaps from a few states and that a bare majority of the federal representatives may frequently be of the aristocracy or some particular interests connections or parties in the community and governed by motives, views and inclinations not compatible with the general interest the last is founded on this principle that the people will be substantially represented only in their state or local assemblies that their principal security must be found in them and that therefore they ought to have ultimately a constitutional control over such interesting measures I have often heard it observed that our people are well informed and will not submit to oppressive governments that the state governments will be their ready advocates and possess their confidence, mix with them and enter into all their wants and feelings this is true, but of what avail will these circumstances be if the state governments, thus allowed to be the guardians of the people possess no kind of power by the forms of the social compact to stop in their passage the laws of congress injurious to the people state governments must stand and see the law take place they may complain in petition so may individuals the members of them in extreme cases may resist on the principles of self-defense so may the people and individuals it has been observed that the people in extensive territories have more power compared with that of their rulers than in small states is not directly the opposite true? the people in a small state can unite and act in concert and with vigor, but in large territories the men who govern find it more easy to unite while the people cannot while they cannot collect the opinions of each part while they move to different points and one part is often played off against the other it has been asserted that the confederate head of a republic at best is in general weak and dependent that the people will attach themselves to and support their local governments in all disputes with the union admit the fact, is it any way to remove the inconvenience by accumulating powers upon a weak organization? the fact is that the detailed administration of affairs in this mixed republic depends principally on the local governments and the people would be wretched without them and a great proportion of social happiness depends on the internal administration of justice and on internal police the splendor of the monarch and the power of the government are one thing the happiness of the subject depends on very different causes but it is to the latter that the best men the greatest ornaments of human nature have most carefully attended it is to the former tyrants and oppressors have always aimed yours the federal farmer end of anti-federalist number 19 this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org the anti-federalist papers anti-federalist number 20 letters from the federal farmer to the republican letter number 18 January 25th 1788 Dear Sir I am persuaded a federal head never was formed that possessed half the powers which it could carry into full effect altogether independently of the state or local governments as the one the convention has proposed will possess should the state legislatures never meet except merely for choosing federal senators and appointing electors once in four and six years the federal head may go on for ages to make all laws relative to the following subjects and by its own courts officers and provisions carry them into full effect and to any extent it may deem for the general welfare that is for raising taxes borrowing and coining monies and for applying them for forming and governing armies and navies and for directing their operations for regulating commerce with foreign nations and among the several states and with the Indian tribes for regulating bankruptcies weights and measures post offices and post roads and captures on land and water for establishing a uniform rule of naturalization and for promoting the progress of science and useful arts for defining and punishing piracies and felonies committed on the high seas the offenses of counterfeiting the securities and current coin of the United States and offenses against the law of nations and for regulating all maritime concerns for organizing, arming and disciplining the militia the respective states training them and appointing the officers for calling them forth when wanted and for governing them in the service of the Union for the sole and exclusive government of a federal city or town not exceeding 10 miles square and of places seated for forts, magazines arsenals, dockyards and other needful buildings for granting letters of mark and reprisal and making war for regulating the times, places and manner of holding elections for senators and representatives for making and concluding all treaties and carrying them into execution for judiciously deciding all questions arising on the constitution laws and treaties of the Union in law and equity for elections arising on state laws also where ambassadors, other public ministers and councils where the United States, individual states or a state where citizens of different states and where foreign states or a foreign subject are parties or party for impeaching and trying federal officers for deciding on elections and for expelling members, etc. All these enumerated powers we must examine and contemplate in all their extent in various branches and then reflect that federal head will have full power to make all laws whatever respecting them and for carrying into full effect all powers vested in the Union in any department or offices of it by the constitution in order to see the full extent of the federal powers which will be supreme and exercised by that head at pleasure conforming to the few limitations mentioned in the constitution Indeed I conceive it is impossible to see them in their full extent at present We see vast undefined powers lodged in a weak organization but cannot by the inquiries of months and years clearly discern them in all their numerous branches These powers in feeble hands must be tempting objects for ambition and a love of power and fame But, say the advocates, they are all necessary for forming an energetic federal government all necessary in the hands of the Union for the common defense and general welfare In these great points they appear to me to go from the end to the means and from the means to the end perpetually begging the question I think in the course of these letters I shall sufficiently prove that some of these powers need not be lodged in the hands of the Union that others ought to be exercised under better checks and in part by the agency of the states some I have already considered some in my mind are not liable to objections and the others I shall briefly notice in this closing letter The power to control the military forces of the country as well as the revenues of it requires serious attention Here again I must premise that a federal republic is a compound system made up of constituent parts each essential to the whole We must then expect the real friends of such a system will always be very anxious for the security and preservation of each part and to this end that each constitutionally possesses its natural portion of power and influence and that it will constantly be an object of concern to them to see one part armed at all points by the constitution and in a manner destructive in the end even of its own existence and the others left constitutionally defenseless The military forces of a free country may be considered under three general descriptions one the militia two the navy and three the regular troops and the whole ought ever to be and understood to be in strict subordination to the civil authority and that regular troops and select corps ought not to be kept up without evident necessity Stipulations in the constitution to this effect are perhaps too general to be of much service except merely to impress on the minds of the people and soldiery that the military ought ever to be subject to the civil authority, etc But particular attention and many more definite stipulations are highly necessary to render the military safe and yet useful in a free government and in a federal republic where the people meet in distinct assemblies many stipulations are necessary to keep apart from transgressing which would be unnecessary checks against the whole met in one legislature in one entire government A militia when properly formed are in fact the people themselves and render regular troops in a great measure unnecessary The powers to form and arm the militia to appoint their officers and to command their services are very important nor ought they in a confederated republic to be lodged solely in any one member of the government First the constitution ought to secure a genuine and guard against a select militia by providing that the militia shall always be kept well organized armed and disciplined and include according to the past and general usage of the states all men capable of bearing arms and that all regulations tending to render this general militia useless and defenseless by establishing select corps of militia or distinct bodies of military men not having permanent interests and attachments in the community to be avoided I am persuaded I need not multiply words to convince you of the value and solidity of this principle as it respects general liberty and the duration of a free and mild government having this principle well fixed by the constitution then the federal head may prescribe a general uniform plan on which the respective states shall form and train the militia appoint their officers and solely manage them except when called into the service of the union and when called into that service they may be commanded and governed by the union this arrangement combines energy and safety in it it places the sword in the hands of the solid interests of the community and not in the hands of men destitute of property of principles or of attachment to the society and government who often form the select corps of peace or ordinary establishment by it the militia are the people immediately under the management of the state governments but on a uniform federal plan and called into service, command and government of the union when necessary for the common defense and general tranquility but say gentlemen the general militia are for the most part employed at home in their private concerns cannot well be called out or be depended upon that we must have a select militia that is as I understand it particular corps or bodies of young men and of men who have but little to do at home particularly armed and disciplined in some measure at the public expense always ready to take the field these corps not much unlike regular troops will ever produce an inattention to the general militia and the consequence has ever been and always must be that the substantial men having families and property will generally be without arms without knowing the use of them and defenseless whereas to preserve liberty it is essential that the whole body of the people always possess arms and be taught alike especially when young how to use them nor does it follow from this that all promiscuously must go into actual service on every occasion the mind that aims at a select militia must be influenced by a truly anti-republican principle and when we see many men disposed to practice upon it whenever they can prevail no wonder true republicans are for carefully guarding against it as a farther check it may be proper to add that the militia of any state shall not remain in the service of the union beyond a given period without the express consent of the state legislature as to the navy I do not see that it can have any connection with the local governments the want of employment for it and the want of monies in the hands of the union must be its proper limitation the laws for building or increasing it as all the important laws mentioned in a former letter touching military and money matters may be checked by requiring the attendance of a large proportion of the representatives and the consent of a large proportion of those present to pass them as before mentioned by article 1 section 8 congress shall have power to provide for organizing arming and disciplining the militia power to provide for does this imply any more than power to prescribe a general uniform plan and must not the respective states pass laws but in conformity to the plan reforming and training the militia in the present state of mankind and of conducting war the government of every nation must have power to raise and keep up regular troops the question is how shall this power be lodged in an entire government as in Great Britain where the people assemble by their representatives in one legislature there is no difficulty it is of course properly lodged in that legislature but in a confederated republic where the organization consists of a federal head and local governments there is no one part in which it can be solely and safely lodged by article 1 section 8 congress shall have power to raise and support armies by article 1 section 10 no state without the consent of congress shall keep troops or ships of war in time of peace it seems fifth the union should direct the raising of troops and the union may do it in two ways by requisitions on the states or by direct taxes the first is most conformable to the federal plan and safest and it may be improved by giving the union power by its own laws and officers to raise the states quota that may neglect and to charge it with the expense and by giving a fixed quorum of the state legislatures power to disapprove the requisition there would be less danger in this power to raise troops could the state governments keep a proper control over the purse and over the militia but after all the precautions we can take without evidently feathering the union too much we must give a large accumulation of powers to it in these and in other respects there is one check which I think may be added with great propriety that is no land forces shall be kept up but by legislative acts annually passed by congress and no appropriation of monies for their support shall be for a longer term than one year this is the constitutional practice in Great Britain and the reasons for such checks in the United States appear to be much stronger we may also require that these acts be passed by a special majority as before mentioned there is another mode still more guarded and which seems to be founded in the true spirit of a federal system it seems proper to divide those powers we can with safety lodge them in no one member of the government alone yet substantially to preserve their use and to ensure duration to the government by modifying the exercise of them it is to empower congress to raise troops by direct levies not exceeding a given number say two thousand in time of peace and twelve thousand in a time of war and for such troops as may be wanted to raise them by requisitions qualified as before mentioned by the above recited clause no state shall keep troops etc. in time of peace this clearly implies it may do it in time of war this must be on the principle that the union cannot defend all parts of the republic and suggests an idea very repugnant to the general tendency of the system proposed which is to disarm the state governments a state in a long war may collect forces sufficient to take the field against the neighboring states this clause was copied from the confederation in which it was of more importance than in the plan proposed because under this the separate states probably will have but small revenues by article one section eight congress shall have power to establish uniform laws on the subjects of bankruptcies throughout the united states it is to be observed that the separate states have ever been in possession of the power and in the use of it of making bankrupt laws militia laws and laws in some other cases respecting which the new constitution when adopted will give the union power to legislate but no words are used by the constitution to exclude the jurisdiction of the several states and whether they will be excluded or not or whether they and the union will have concurrent jurisdiction or not must be determined by inference and from the nature of the subject if the power for instance to make uniform laws on the subject of bankruptcies is in its nature indivisible or incapable of being exercised by two legislatures independently or by one in aid of the other then the states are excluded and cannot legislate at all on the subject even though the union should neglect or find it impracticable to establish uniform bankrupt laws how far the union will find it practicable to do this time only can fully determine when we consider the extent of the country and the very different ideas of the different parts of it respecting credit and the mode of making men's property liable for paying their debts we may I think with some degree of certainty conclude that the union never will be able to establish such laws but if practicable it does not appear to me on further reflection that the union ought to have the power it does not appear to me to be a power properly incidental to a federal head and I believe no one ever possessed it it is a power that will immediately and extensively interfere with the internal police of the separate states especially with their administering justice among their own citizens by giving this power to the union we greatly extend the jurisdiction of the federal judiciary as all questions arising on bankrupt laws being laws of the union even between citizens of the same state may be tried in the federal courts and I think it may be shown that by the help of these laws actions between citizens of different states and the laws of the federal city aided by no over strain judicial fictions almost all civil causes may be drawn into those courts we must be sensible how cautious we ought to be in extending unnecessarily the jurisdiction of those courts for reasons I need not repeat this article of power too will considerably increase in the hands of the union and accumulation of powers some of a federal and some of an unfederal nature too large without it the constitution provides that congress shall have the sole and exclusive government of what is called the federal city a place not exceeding 10 miles square and of all places seated for forts, dock yards etc. I believe this is a novel kind of provision in a federal republic it is repugnant to the spirit of such a government and must be founded in an apprehension of a hostile disposition between the federal head and the state governments and it is not improbable that the sudden retreat of congress from philadelphia first gave rise to it with this apprehension we provide the government of the union shall have secluded places cities and castles of defense which no state laws whatever shall invade when we attentively examine this provision in all its consequences it opens to view scenes almost without bounds a federal or rather a national city 10 miles square containing 100 square miles is about 4 times as large as london and for forts, magazines, arsenals dock yards and other needful buildings congress may possess a number of places or towns in each state it is true congress cannot have them unless the state legislatures cede them but when once they can never be recovered and though the general temper of the legislatures may be averse to such sessions yet many opportunities and advantages may be taken of particular times and circumstances of complying assemblies and particular parties to obtain them it is not improbable that some considerable towns or places in some intemperate moments or influenced by anti-republican principles will petition to be ceded for the purposes mentioned there are men and even towns in the best republics which are often fond of withdrawing from the government of them whenever occasion shall present the case is still stronger if the provision in question holds out allurements to attempt to withdraw the people of a state must ever be subject to the state as well as federal taxes but the federal city in places will be subject only to the latter and to them by no fixed proportions nor of the taxes raised in them can the separate states demand any account of congress these doors open for withdrawing from the state governments entirely may on other accounts be very alluring and pleasing to those anti-republican men who prefer a place under the wings of courts if a federal town be necessary for the residents of congress and the public officers it ought to be a small one and the government of it fixed on republican and common law principles carefully enumerated and established by the constitution it is true the states when they shall seed places may stipulate that the laws of government of congress in them shall always be formed on such principles but it is easy to discern that the stipulations of a state or the inhabitants of the place seated can be but little avail against the power and gradual encroachments of the union the principles ought to be established by the federal constitution to which all the states are parties but in present can there be any need of so large a city in places for forts etc totally exempted from the laws and jurisdictions of the state governments if I understand the constitution the laws of congress constitutionally made will have complete and supreme jurisdiction to all federal purposes on every inch of ground in the united states and exclusive jurisdiction on the high seas and this by the highest authority the consent of the people suppose ten acres at west point shall be used as a fort of the union or a seaport town as a dockyard the laws of the union in those places respecting the navy forces of the union and all federal objects must prevail be noticed by all judges and officers and executed accordingly and I can discern no one reason for excluding from these places the operation of state laws as to mere state purposes for instance for the collection of state taxes in them recovering debts deciding questions of property arising within them on state laws punishing by state laws theft trespass and offenses committed in them by mere citizens against the state laws the city and all the places in which the union shall have this exclusive jurisdiction will be immediately under one government that of the federal head and be no part of any state and consequently no part of the united states the inhabitants of the federal city shall be as much exempt from the laws and control of the state governments as the people of Canada or Nova Scotia will be neither the laws of the states respecting taxes the militia crimes or property will extend to them nor is there a single stipulation in the constitution that the inhabitants of this city and these places shall be governed by laws founded on principles of freedom all questions civil and criminal arising on the laws of these places of Congress must be decided in the federal courts and also all questions that may by such judicial fictions as these courts may consider reasonable be supposed to arise within this city or any of these places may be brought into these courts and by a very common legal fiction any personal contract may be supposed to have been made in any place a contract made in Georgia may be supposed to have been made in the federal city in Pennsylvania the courts will admit the fiction and not in these cases make it a serious question where it was in fact made every suit in which an inhabitant of a federal district may be a party of course may be instituted in the federal courts also every suit in which it may be alleged and not denied that a party in it is an inhabitant of such a district also every suit to which a foreign state or subject the union a state citizens of different states in fact or by reasonable legal fictions may be a party or parties and thus by means of bankrupt laws federal districts etc almost all judicial business I apprehend may be carried into the federal courts without essentially departing from the usual course of judicial proceedings the courts in great Britain have acquired their powers and extended very greatly their jurisdictions by such fictions and suppositions as I have mentioned the constitution in these points certainly involves it in principles and almost cases which may unfold and in time exhibit consequences we hardly think of the power of naturalization when viewed in connection with the judicial powers and cases is in my mind a very doubtful extent by the constitution itself the citizens of each state will be naturalized citizens of every state to the general purposes of instituting suits claiming the benefits of the laws etc and in order to give the federal courts jurisdiction of an action between citizens of the same state in common acceptance may not a court allow the plaintiff to say he is a citizen of one state and the defendant a citizen of another without carrying legal fictions so far by any means as they have been carried by the courts of King's Bench and Exchequer in order to bring causes within their cognizance further the federal city and districts will be totally distinct from any state and a citizen of a state will not of course be a subject of any of them and to avail himself of the privileges and immunities of them must he not be naturalized by congress in them and may not congress make any proportion of the citizens of the states naturalized subjects of the federal city and districts and thereby entitle them to sue or defend in all cases in the federal courts I have my doubts and many sensible men I find have their doubts on these points and we ought to observe they must be settled in the courts of law by their rules distinctions and fictions to avoid many of these intricacies and difficulties and to avoid the undo and unnecessary extension of the federal judicial powers it appears to me that no federal districts ought to be allowed and no federal city or town except perhaps a small town in which the government shall be republican but in which congress shall have no jurisdiction over the inhabitants but in common with the other inhabitants can the union want in such a town anything more than a right to the soil on which it may set its buildings an extensive jurisdiction over the federal buildings and property its own members officers and servants in it as to all federal objects the union will have complete jurisdiction over them of course anywhere and everywhere I still think that no actions ought to be allowed to be brought in the federal courts between citizens of different states at least unless the cause be a very considerable importance that no action against the state government by any citizen or foreigner ought to be allowed and no action in which a foreign subject is party at least unless it be a very considerable importance ought to be instituted in the federal courts I confess I can see no reason whatever for a foreigner or for citizens of different states carrying six penny causes into the federal courts I think the state courts will be found by experience to be bottomed by federal principles and to administer justice better than the federal courts the difficulties and dangers I have supposed will result from so large a federal city and federal districts from the extension of the federal judicial powers etc are not I can see merely possible but probable I think pernicious political consequences will follow from them and from the federal city especially for very obvious reasons a few of which I will mention we must observe that the citizens of a state will be subject to state as well as federal taxes and inhabitants of the federal city and districts only to such taxes as congress may lay we are not to suppose all our people are attached to free government and the principles of the common law but that many thousands of them will prefer a city governed not on republican principles this city and the government of it must indubitably take their tone from the characters of the men who from the nature of it's situation and institution must collect there this city will not be established for productive labor for mercantile or mechanic industry but for the residents of government it's officers and attendants if hereafter it should ever become a place of trade and industry in the early periods of it's existence when it's laws and government must receive their fixed tone it must be a mere court with it's appendages the executive congress the law it's gentlemen of fortune and pleasure with all the officers attendants suitors expectance and dependence on the whole however brilliant and honorable this collection may be if we expect it will have any sincere attachments to simple and frugal republicanism to that liberty and mild government which is dear to the laborious part of a free people we most assuredly deceive ourselves this early collection will draw to it men from all parts of the country of a light political description we see them looking towards the place already such a city or town containing 100 square miles must soon be the great the visible and dazzling center the mistress of fashions and the fountain of politics there may be a free or shackled press in this city and the streams which may issue from it may overflow the country and they will be poisonous or pure as the fountain may be corrupt or not but not to dwell on a subject that must give pain to the virtuous friends of freedom I will only add can a free and enlightened people create a common head so extensive so prone to corruption and slavery as this city probably will be when they have it in their power to form one pure and chaste frugal and republican under the confederation congress has no power whereby to govern its own officers and servants a federal town in which congress might have special jurisdiction might be expedient but under the new constitution without a federal town congress will have all necessary powers of course over its officers and servants indeed it will have a complete system of powers to all the federal purposes mentioned in the constitution so that the reason for a federal town under the confederation will by no means exist under the constitution even if a trial by jury should be admitted in the federal city what man with any state attachments or republican virtue about him will submit to be tried by a jury of it I might observe more particularly upon several other parts of the constitution proposed but it has been uniformly subject in examining a subject so extensive and difficult in many parts to be illustrated to avoid unimportant things and not to dwell upon points not very material the rule for apportioning requisitions on the states having sometimes since been agreed to by eleven states I have viewed is settled the stipulation that congress after twenty one years may prohibit the importation of slaves is a point gained if not so favorable as could be wished for as monopolies and trade perhaps can in no case be useful it might not be amiss to provide expressly against them I wish the power to retrieve and pardon was more cautiously lodged and under some limitations I do not see why congress should be allowed to consent that a person may accept a present office or title of a foreign prince etc as to the state governments as well as the federal are essential parts of the system why should not the oath taken by officers be expressly to support the whole as to debts due and from the union I think the constitution intends on examining article four section eight and article six that they shall stand on the same ground under the constitution as under the confederation in the article respecting amendments it is stipulated that no state shall ever be deprived of its equal vote in the senate without its consent and that alternatives may be made by the consent of three fourths of the states stipulations to bind the majority may serve one purpose to prevent frequent motions for change but these attempts to bind the majority generally give occasion for breach of contract the states all agreed about seven years ago that the confederation should remain unaltered unless every state should agree to alterations but we now see it agreed by the convention and four states that the old confederacy shall be destroyed and a new one of nine states be erected if only nine shall come in had we agreed that a majority should alter the confederation a majority's agreeing would have bound the rest but now we must break the old league unless all the states agreed to alter or not to proceed with adopting the constitution whether the adoption by nine states will not produce a nearly equal and dangerous division of the people for and against the constitution and whether the circumstances of the country were such as to justify the hazarding a probability of such a situation I shall not undertake to determine I shall leave it to be determined hereafter whether nine states under a new federal compact can claim the benefits of any treaties made with a confederation of thirteen under an distinct compact in form of existence whether the new confederacy can recover debts due to the old confederacy or the arrears of taxes due from the states excluded it has been well observed that our country is extensive and has no external enemies to press the parts together that therefore their union must depend on strong internal ties I differ with the gentleman who make these observations only in this they hold the ties ought to be strengthened by a considerable degree of internal consolidation and my object is to form them and strengthen them on pure federal principles whatever may be the fate of many valuable and necessary amendments in the constitution proposed the ample discussion and respectable opposition it will receive will have a good effect they will operate to produce a mild and prudent administration and to put the wheels of the whole system in proper principles they will events that true republican principles and attachments are still alive and formidable in this country these in view I believe even men quite disposed to make a bad use of the system will long hesitate before they will resolve to do it a majority from a view of our situation and influenced by many considerations may acquiesce in the adoption of this constitution but it is evident that a very great majority of the people of the United States departs an unnecessary and uninvisable departure from true republican and federal principles yours the federal farmer end of anti-federalist section 20