The essential parts of a free and good government are a full and
equal representation of the people in the legislature, and the jury
trial of the vicinage in the administration of justice—a full and
equal representation, is that which possesses the same interests,
feelings, opinions, and views the people themselves would were
they all assembled—a fair representation, therefore, should be so
regulated, that every order of men in the community, according to the
common course of elections, can have a share in it—in order to allow
professional men, merchants, traders, farmers, mechanics, &c. to bring
a just proportion of their best informed men respectively into the
legislature, the representation must be considerably numerous—We
have about 200 state senators in the United States, and a less number
than that of federal representatives cannot, clearly, be a full
representation of this people, in the affairs of internal taxation
and police, were there but one legislature for the whole union. The
representation cannot be equal, or the situation of the people proper
for one government only—if the extreme parts of the society cannot be
represented as fully as the central—It is apparently impracticable
that this should be the case in this extensive country——it would be
impossible to collect a representation of the parts of the country
five, six, and seven hundred miles from the seat of government.
Under one general government alone, there could be but one judiciary,
one supreme and a proper number of inferior courts. I think it
would be totally impracticable in this case to preserve a due
administration of justice, and the real benefits of the jury trial
of the vicinage——there are now supreme courts in each state in the
union, and a great number of county and other courts subordinate to
each supreme court——most of these supreme and inferior courts are
itinerant, and hold their sessions in different parts every year of
their respective states, counties and districts—with all these moving
courts, our citizens, from the vast extent of the country, must travel
very considerable distances from home to find the place where justice
is administered. I am not for bringing justice so near to individuals
as to afford them any temptation to engage in law suits; though I
think it one of the greatest benefits in a good government, that each
citizen should find a court of justice within a reasonable distance,
perhaps, within a day’s travel of his [12] home; so that, without
great inconveniences and enormous expense, he may have the advantages
of his witnesses and jury—it would be impracticable to derive these
advantages from one judiciary——the one supreme court at most could
only set in the centre of the union, and move once a year into the
centre of the eastern and southern extremes of it—and, in this case,
each citizen, on an average, would travel 150 or 200 miles to find
this court——that, however, inferior courts might be properly placed
in the different counties, and districts of the union, the appellate
jurisdiction would be intolerable and expensive.
If it were possible to consolidate the states, and preserve the
features of a free government, still it is evident that the middle
states, the parts of the union, about the seat of government, would
enjoy great advantages, while the remote states would experience the
many inconveniences of remote provinces. Wealth, offices, and the
benefits of government would collect in the centre: and the extreme
states; and their principal towns, become much less important.
There are other considerations which tend to prove that the idea
of one consolidated whole, on free principles, is ill-founded—the
laws of a free government rest on the confidence of the people, and
operate gently—and never can extend the influence very far—if they
are executed on free principles, about the centre, where the benefits
of the government induce the people to support it voluntarily; yet
they must be executed on the principles of fear and force in the
extremes.—This has been the case with every extensive republic of
which we have any accurate account.
There are certain unalienable and fundamental rights, which in forming
the social compact, ought to be explicitly ascertained and fixed—a
free and enlightened people, in forming this compact, will not resign
all their rights to those who govern, and they will fix limits to
their legislators and rulers, which will soon be plainly seen by those
who are governed, as well as by those who govern: and the latter will
know they cannot be passed unperceived by the former, and without
giving a general alarm.—These rights should be made the basis of
every constitution; and if a people be so situated, or have such
different opinions that they cannot agree in ascertaining and fixing
them, it is a very strong argument against their attempting to form
one entire society, to live under one system of laws only.—I confess,
I never thought the people of these states differed essentially in
these respects; they having derived all these rights from one common
source, the British systems; and having in the formation of their state
constitutions, discovered that their ideas [13] relative to these
rights are very similar. However, it is now said that the states
differ so essentially in these respects, and even in the important
article of the trial by jury, that when assembled in convention, they
can agree to no words by which to establish that trial, or by which
to ascertain and establish many other of these rights, as fundamental
articles in the social compact. If so, we proceed to consolidate the
states on no solid basis whatever.
But I do not pay much regard to the reasons given for not bottoming
the new constitution on a better bill of rights. I still believe a
complete federal bill of rights to be very practicable. Nevertheless I
acknowledge the proceedings of the convention furnish my mind with many
new and strong reasons, against a complete consolidation of the states.
They tend to convince me, that it cannot be carried with propriety
very far—that the convention have gone much farther in one respect
than they found it practicable to go in another; that is, they propose
to lodge in the general government very extensive powers—_powers_
nearly, if not altogether, complete and unlimited, over the purse and
the sword. But, in its organization, they furnish the strongest proof
that the proper limbs, or parts of a government, to support and execute
those powers on proper principles (or in which they can be safely
lodged) cannot be formed. These powers must be lodged somewhere in
every society; but then they should be lodged where the strength and
guardians of the people are collected. They can be wielded, or safely
used, in a free country only by an able executive and judiciary, a
respectable senate, and a secure, full, and equal representation of the
people. I think the principles I have premised or brought into view,
are well founded—I think they will not be denied by any fair reasoner.
It is in connection with these, and other solid principles, we are to
examine the constitution. It is not a few democratic phrases, or a
few well formed features, that will prove its merits; or a few small
omissions that will produce its rejection among men of sense; they will
enquire what are the essential powers in a community, and what are
nominal ones; where and how the essential powers shall be lodged to
secure government, and to secure true liberty.
In examining the proposed constitution carefully, we must clearly
perceive an unnatural separation of these powers from the substantial
representation of the people. The state government will exist, with all
their governors, senators, representatives, officers and expences; in
these will be nineteen twentieths of the representatives of the people;
they will have a near connection, and their members an immediate
intercourse with the people; and the probability is, that the state
governments will possess the [14] confidence of the people, and be
considered generally as their immediate guardians.
The general government will consist of a new species of executive,
a small senate, and a very small house of representatives. As many
citizens will be more than three hundred miles from the seat of this
government as will be nearer to it, its judges and officers cannot be
very numerous, without making our governments very expensive. Thus will
stand the state and the general governments, should the constitution
be adopted without any alterations in their organization; but as to
powers, the general government will possess all essential ones, at
least on paper, and those of the states a mere shadow of power. And
therefore, unless the people shall make some great exertions to restore
to the state governments their powers in matters of internal police; as
the powers to lay and collect, exclusively, internal taxes, to govern
the militia, and to hold the decisions of their own judicial courts
upon their own laws final, the balance cannot possibly continue long;
but the state governments must be annihilated, or continue to exist for
no purpose.
It is however to be observed, that many of the essential powers
given the national government are exclusively given; and the general
government may have prudence enough to forbear the exercise of those
which may still be exercised by the respective states. But this cannot
justify the impropriety of giving powers, the exercise of which
prudent men will not attempt, and imprudent men will, or probably can,
exercise only in a manner destructive of free government. The general
government, organized as it is, may be adequate to many valuable
objects, and be able to carry its laws into execution on proper
principles in several cases; but I think its warmest friends will not
contend, that it can carry all the powers proposed to be lodged in it
into effect, without calling to its aid a military force, which must
very soon destroy all elective governments in the country, produce
anarchy, or establish despotism. Though we cannot have now a complete
idea of what will be the operations of the proposed system, we may,
allowing things to have their common course, have a very tolerable
one. The powers lodged in the general government, if exercised by it,
must intimately effect the internal police of the states, as well
as external concerns; and there is no reason to expect the numerous
state governments, and their connections, will be very friendly to the
execution of federal laws in those internal affairs, which hitherto
have been under their own immediate management. There is more reason
to believe, that the general government, far removed from the people,
and none of its members elected oftener than once in two years, will
be forgot [15] or neglected, and its laws in many cases disregarded,
unless a multitude of officers and military force be continually kept
in view, and employed to enforce the execution of the laws, and to
make the government feared and respected. No position can be truer
than this. That in this country either neglected laws, or a military
execution of them, must lead to a revolution, and to the destruction
of freedom. Neglected laws must first lead to anarchy and confusion;
and a military execution of laws is only a shorter way to the same
point—despotic government.
Your’s, &c.