It will not be possible to establish in the federal courts the jury
trial of the vicinage so well as in the state courts.
Third, there appears to me to be not only a premature deposit of some
important powers in the general government—but many of those deposited
there are undefined, and may be used to good or bad purposes as honest
or designing men shall prevail. By Art. 1, Sec. 2, representatives and
direct taxes shall be apportioned among the several states, &c.——same
art. sect. 8, the congress shall have powers to lay and collect taxes,
duties, &c. for the common defence and general welfare, but all duties,
imposts and excises, shall be uniform throughout the United States:
By the first recited clause, direct taxes shall be apportioned on the
states. This seems to favour the idea suggested by some sensible men
and writers that congress, as to direct taxes, will only have power
to make requisitions; but the latter clause, power to lay and collect
taxes, &c. seems clearly to favour the contrary opinion, and, in my
mind, the true one, the congress shall have power to tax immediately
individuals, without the intervention of the state legislatures, in
fact the first clause appears to me only to provide that each state
shall pay a certain portion of the tax, and the latter to provide that
congress shall have power to lay and collect taxes, that is to assess
upon, and to collect of the individuals in the state, the states quota;
but these still I consider as undefined powers, because judicious men
understand them differently.
It is doubtful whether the vice-president is to have any
qualifications; none are mentioned; but he may serve as president,
and it may be inferred, he ought to be qualified therefore as the
president; but the qualifications of the president are required only
of the person to be elected president. By art. 2, sect. 2, “But the
congress may by law vest the appointment of such inferior officers as
they think proper in the president alone, in the courts of law, or
in the heads of the departments.” Who are inferior officers? May not
a congress disposed to vest the appointment of all officers in the
president, [29] under this clause, vest the appointment of almost every
officer in the president alone, and destroy the check mentioned in the
first part of the clause, and lodged in the senate. It is true, this
check is badly lodged, but then some check upon the first magistrate in
appointing officers, ought it appears by the opinion of the convention,
and by the general opinion, to be established in the constitution. By
art. 3, sect. 2, the supreme court shall have appellate jurisdiction
as to law and facts with such exceptions, &c. to what extent is it
intended the exceptions shall be carried—Congress may carry them so
far as to annihilate substantially the appellate jurisdiction, and the
clause be rendered of very little importance.
4th. There are certain rights which we have always held sacred in the
United States, and recognized in all our constitutions, and which, by
the adoption of the new constitution in its present form, will be left
unsecured. By article 6, the proposed constitution, and the laws of
the United States, which shall be made in pursuance thereof; and all
treaties made, or which shall be made under the authority of the United
States, shall be the supreme law of the land; and the judges in every
state shall be bound thereby; anything in the constitution or laws of
any state to the contrary notwithstanding.
It is to be observed that when the people shall adopt the proposed
constitution it will be their last and supreme act; it will be adopted
not by the people of New Hampshire, Massachusetts, &c., but by the
people of the United States; and wherever this constitution, or any
part of it, shall be incompatible with the ancient customs, rights, the
laws or the constitutions heretofore established in the United States,
it will entirely abolish them and do them away: And not only this, but
the laws of the United States which shall be; made in pursuance of
the federal constitution will be also supreme laws, and wherever they
shall be incompatible with those customs, rights, laws or constitutions
heretofore established, they will also entirely abolish them and do
them away.
By the article before recited, treaties also made under the authority
of the United States, shall be the supreme law: It is not said that
these treaties shall be made in pursuance of the constitution—nor
are there any constitutional bounds set to those who shall make them:
The president and two-thirds of the senate will be empowered to make
treaties indefinitely, and when these treaties shall be made, they will
also abolish all laws and state constitutions incompatible with them.
This power in the president and senate is absolute, and the judges
will be bound to allow full force to whatever rule, article or thing
the president and senate shall establish by treaty, whether it be [30]
practicable to set any bounds to those who make treaties, I am not
able to say; if not, it proves that this power ought to be more safely
lodged.
The federal constitution, the laws of congress made in pursuance of
the constitution, and all treaties must have full force and effect
in all parts of the United States; and all other laws, rights and
constitutions which stand in their way must yield: It is proper the
national laws should be supreme, and superior to state or district
laws; but then the national laws ought to yield to unalienable or
fundamental rights——and national laws, made by a few men, should
extend only to a few national objects. This will not be the case with
the laws of congress: To have any proper idea of their extent, we
must carefully examine the legislative, executive and judicial powers
proposed to be lodged in the general government, and consider them in
connection with a general clause in art. 1, sect. 8, in these words
(after enumerating a number of powers) “To make all laws which shall be
necessary and proper for carrying into execution the foregoing powers,
and all other powers vested by this constitution in the government of
the United States, or in any department or officer thereof.”——The
powers of this government as has been observed, extend to internal as
well as external objects, and to those objects to which all others are
subordinate; it is almost impossible to have a just conception of their
powers, or of the extent and number of the laws which may be deemed
necessary and proper to carry them into effect, till we shall come
to exercise those powers and make the laws. In making laws to carry
those powers into effect, it is to be expected, that a wise and prudent
congress will pay respect to the opinions of a free people, and bottom
their laws on those principles which have been considered as essential
and fundamental in the British, and in our government: But a congress
of a different character will not be bound by the constitution to pay
respect to those principles.
It is said that when people make a constitution, and delegate powers,
that all powers are not delegated by them to those who govern, is
reserved in the people; and that the people, in the present case,
have reserved in themselves, and in their state governments, every
right and power not expressly given by the federal constitution to
those who shall administer the national government. It is said, on the
other hand, that the people, when they make a constitution, yield all
power not expressly reserved to themselves. The truth is, in either
case, it is mere matter of opinion, and men usually take either side
of the argument, as will best answer their purposes: But the general
[31] presumption being, that men who govern, will in doubtful cases,
construe laws and constitutions most favourably for increasing their
own powers; all wise and prudent people, in forming constitutions,
have drawn the line, and carefully described the powers parted with
and the powers reserved. By the state constitutions, certain rights
have been reserved in the people; or rather, they have been recognized
and established in such a manner, that state legislatures are bound
to respect them, and to make no laws infringing upon them. The state
legislatures are obliged to take notice of the bills of rights of their
respective states. The bills of rights, and the state constitutions,
are fundamental compacts only between those who govern, and the people
of the same state.
In the year 1788 the people of the United States made a federal
constitution, which is a fundamental compact between them and their
federal rulers; these rulers, in the nature of things, cannot be
bound to take notice of any other compact. It would be absurd for
them, in making laws, to look over thirteen, fifteen, or twenty state
constitutions, to see what rights are established as fundamental, and
must not be infringed upon, in making laws in the society. It is true,
they would be bound to do it if the people, in their federal compact,
should refer to the state constitutions, recognize all parts not
inconsistent with the federal constitution, and direct their federal
rulers to take notice of them accordingly; but this is not the case,
as the plan stands proposed at present; and it is absurd, to suppose
so unnatural an idea is intended or implied. I think my opinion is not
only founded in reason, but I think it is supported by the report of
the convention itself. If there are a number of rights established by
the state constitutions, and which will remain sacred, and the general
government is bound to take notice of them—it must take notice of one
as well as another; and if unnecessary to recognize or establish one
by the federal constitution, it would be unnecessary to recognize or
establish another by it. If the federal constitution is to be construed
so far in connection with the state constitution, as to leave the
trial by jury in civil causes, for instance, secured; on the same
principles it would have left the trial by jury in criminal causes,
the benefits of the writ of habeas corpus, &c. secured; they all stand
on the same footing; they are the common rights of Americans, and have
been recognized by the state constitutions: But the convention found
it necessary to recognize or re-establish the benefits of that writ,
and the jury trial in criminal cases. As to _expost facto_ laws, the
convention has done the same in one case, and gone further in another.
It is a part of the com- [32] pact between the people of each state
and their rulers, that no _expost facto_ laws shall be made. But the
convention, by Art. 1, Sect. 10, have put a sanction upon this part
even of the state compacts. In fact, the 9th and 10th Sections in
Art. 1, in the proposed constitution, are no more nor less, than a
partial bill of rights; they establish certain principles as part of
the compact upon which the federal legislators and officers can never
infringe. It is here wisely stipulated, that the federal legislature
shall never pass a bill of attainder, or _expost facto_ law; that no
tax shall be laid on articles exported, &c. The establishing of one
right implies the necessity of establishing another and similar one.
On the whole, the position appears to me to be undeniable, that this
bill of rights ought to be carried farther, and some other principles
established, as a part of this fundamental compact between the people
of the United States and their federal rulers.
It is true, we are not disposed to differ much, at present, about
religion; but when we are making a constitution, it is to be hoped, for
ages and millions yet unborn, why not establish the free exercise of
religion, as a part of the national compact. There are other essential
rights, which we have justly understood to be the rights of freemen;
as freedom from hasty and unreasonable search warrants, warrants
not founded on oath, and not issued with due caution, for searching
and seizing men’s papers, property, and persons. The trials by jury
in civil causes, it is said, varies so much in the several states,
that no words could be found for the uniform establishment of it. If
so, the federal legislation will not be able to establish it by any
general laws. I confess I am of opinion it may be established, but not
in that beneficial manner in which we may enjoy it, for the reasons
beforementioned. When I speak of the jury trial of the vicinage, or
the trial of the fact in the neighborhood, I do not lay so much stress
upon the circumstance of our being tried by our neighbours: in this
enlightened country men may be probably impartially tried by those who
do not live very near them: but the trial of facts in the neighbourhood
is of great importance in other respects. Nothing can be more essential
than the cross examining witnesses, and generally before the triers of
the facts in question. The common people can establish facts with much
more ease with oral than written evidence; when trials of facts are
removed to a distance from the homes of the parties and witnesses, oral
evidence becomes intolerably expensive, and the parties must depend on
written evidence, which to the common people is expensive and almost
[33] useless; it must be frequently taken ex porte, and but very seldom
leads to the proper discovery of truth.
The trial by jury is very important in another point of view. It is
essential in every free country, that common people should have a part
and share of influence, in the judicial as well as in the legislative
department. To hold open to them the offices of senators, judges,
and offices to fill which an expensive education is required, cannot
answer any valuable purposes for them; they are not in a situation to
be brought forward and to fill those offices; these, and most other
offices of any considerable importance, will be occupied by the few.
The few, the well born, &c. as Mr. Adams calls them, in judicial
decisions as well as in legislation, are generally disposed, and very
naturally too, to favour those of their own description.
The trial by jury in the judicial department, and the collection of
the people by their representatives in the legislature, are those
fortunate inventions which have procured for them, in this country,
their true proportion of influence, and the wisest and most fit means
of protecting themselves in the community. Their situation, as jurors
and representatives, enables them to acquire information and knowledge
in the affairs and government of the society; and to come forward,
in turn, as the sentinels and guardians of each other. I am very
sorry that even a few of our countrymen should consider jurors and
representatives in a different point of view, as ignorant, troublesome
bodies, which ought not to have any share in the concerns of government.
I confess I do not see in what cases the congress can, with any
pretence of right, make a law to suppress the freedom of the press;
though I am not clear, that congress is restrained from laying any
duties whatever on printing, and from laying duties particularly heavy
on certain pieces printed, and perhaps congress may require large bonds
for the payment of these duties. Should the printer say, the freedom
of the press was secured by the constitution of the state in which he
lived, congress might, and perhaps, with great propriety, answer, that
the federal constitution is the only compact existing between them
and the people; in this compact the people have named no others, and
therefore congress, in exercising the powers assigned them, and in
making laws to carry them into execution, are restrained by nothing
beside the federal constitution, any more than a state legislature is
restrained by a compact between the magistrates and people of a county,
city, or town of which the people, in forming the state constitution,
have taken no notice.
It is not my object to enumerate rights of inconsiderable [34]
importance; but there are others, no doubt, which ought to be
established as a fundamental part of the national system.
It is worthy of observation, that all treaties are made by foreign
nations with a confederacy of thirteen states—that the western country
is attached to thirteen states—thirteen states have jointly and
severally engaged to pay the public debts.—Should a new government be
formed of nine, ten, eleven, or twelve states, those treaties could
not be considered as binding on the foreign nations who made them.
However, I believe the probability to be, that if nine states adopt the
constitution, the others will.
It may also be worthy our examination, how far the provision for
amending this plan, when it shall be adopted, is of any importance.
No measures can be taken towards amendments, unless two-thirds of the
congress, or two-thirds of the legislature of the several states shall
agree.—While power is in the hands of the people, or democratic part
of the community, more especially as at present, it is easy, according
to the general course of human affairs, for the few influential men in
the community, to obtain conventions, alterations in government, and to
persuade the common people that they may change for the better, and to
get from them a part of the power. But when power is once transferred
from the many to the few, all changes become extremely difficult; the
government, in this case, being beneficial to the few, they will be
exceedingly artful and adroit in preventing any measures which may
lead to a change; and nothing will produce it, but great exertions
and severe struggles on the part of the common people. Every man of
reflection must see, that the change now proposed, is a transfer of
power from the many to the few, and the probability is, the artful
and ever active aristocracy, will prevent all peaceful measures for
changes, unless when they shall discover some favorable moment to
increase their own influence. I am sensible, thousands of men in
the United States, are disposed to adopt the proposed constitution,
though they perceive it to be essentially defective, under an idea that
amendments of it, may be obtained when necessary. This is a pernicious
idea, it argues a servility of character totally unfit for the support
of free government; it is very repugnant to that perpetual jealousy
respecting liberty, so absolutely necessary in all free states, spoken
of by Mr. Dickinson.—However, if our countrymen are so soon changed,
and the language of 1774, is become odious to them, it will be in
vain to use the language of freedom, or to attempt to rouse them to
free enquiries: But I shall never believe this is the case with them,
whatever present appearances may be, till I shall have very strong
evidence indeed of it.
Your’s, &c.