Antifederalist No. 81

THE POWER OF THE JUDICIARY  (PART 3)



Part 1:  from the 12th essay by "Brutus"
from the February 7th & 14th (1788) issues
of The New-York Journal
Part 2: Taken from the first half of the
14th essay February 28, 1788.


     In my last, I showed, that the
judicial power of the United States under
the first clause of the second section of
article eight, would be authorised to
explain the constitution, not only
according to its letter, but according to
its spirit and intention; and having this
power, they would strongly incline to give
it such a construction as to extend the
powers of the general government, as much
as possible, to the diminution, and
finally to the destruction, of that of the
respective states.
     I shall now proceed to show how this
power will operate in its exercise to
effect these purposes. . . . First, let us
inquire how the judicial power will
effect an extension of the legislative
authority.
     Perhaps the judicial power will not
be able, by direct and positive decrees,
ever to direct the legislature, because it
is not easy to conceive how a question can
be brought before them in a course of
legal discussion, in which they can give a
decision, declaring, that the legislature
have certain powers which they have not
exercised, and which, in consequence of
the determination of the judges, they will
be bound to exercise.  But it is easy to
see, that in their adjudication they may
establish certain principles, which being
received by the legislature will enlarge
the sphere of their power beyond all
bounds.
     It is to be observed, that the
supreme court has the power, in the last
resort, to determine all questions that
may arise in the course of legal
discussion, on the meaning and
construction of the constitution.  This
power they will hold under the
constitution, and independent of the
legislature.  The latter can no more
deprive the former of this right, than
either of them, or both of them together,
can take from the president, with the
advice of the senate, the power of making
treaties, or appointing ambassadors.
     In determining these questions, the
court must and will assume certain
principles, from which they will reason,
in forming their decisions.  These
principles, whatever they may be, when
they become fixed by a course of
decisions, will be adopted by the
legislature, and will be the rule by which
they will explain their own powers.  This
appears evident from this consideration,
that if the legislature pass laws, which,
in the judgment of the court, they are not
authorised to do by the constitution, the
court will not take notice of them; for it
will not be denied, that the constitution
is the highest or supreme law.  And the
courts are vested with the supreme and
uncontrollable power, to determine in all
cases that come before them, what the
constitution means.  They cannot,
therefore, execute a law, which in their
judgment, opposes the constitution, unless
we can suppose they can make a superior
law give way to an inferior.  The
legislature, therefore, will not go over
the limits by which the courts may adjudge
they are confined.  And there is little
room to doubt but that they will come up
to those bounds, as often as occasion and
opportunity may offer, and they may judge
it proper to do it.  For as on the one
hand, they will not readily pass taws
which they know the courts will not
execute, so on the other, we may be sure
they will not scruple to pass such as they
know they will give effect, as often as
they may judge it proper.
     From these observations it appears,
that the judgment of the judicial, on the
constitution, will become the rule to
guide the legislature in their
construction of their powers.
     What the principles are, which the
courts will adopt, it is impossible for us
to say.  But taking up the powers as I
have explained them in my last number,
which they will possess under this clause,
it is not difficult to see, that they may,
and probably will, be very liberal ones.
     We have seen, that they will be
authorized to give the constitution a
construction according to its spirit and
reason, and not to confine themselves
to its letter.
     To discover the spirit of the
constitution, it is of the first
importance to attend to the principal ends
and designs it has in view.  These are
expressed in the preamble, in the
following words, viz., "We, the people of
the United States, in order to form a more
perfect union, establish justice, insure
domestic tranquility, provide for the
common defense, promote the general
welfare, and secure the blessings of
liberty to ourselves and our posterity, do
ordain and establish this constitution,"
etc.  If the end of the government is to
be learned from these words, which are
clearly designed to declare it, it is
obvious it has in view every object which
is embraced by any government.  The
preservation of internal peace-the due
admission of justice-and to provide for
the defense of the community-seems to
include all the objects of government. 
But if they do not, they are certainly
comprehended in the words, "to provide for
the general welfare." If it be further
considered, that this constitution, if it
is ratified, will not be a compact entered
into by states, in their corporate
capacities, but an agreement of the people
of the United States as one great body
politic, no doubt can remain but that the
great end of the constitution, if it is to
be collected from the preamble, in which
its end is declared, is to constitute a
government which is to extend to every
case for which any government is
instituted, whether external or internal. 
The courts, therefore, will establish this
as a principle in expounding the
constitution, and will give every part of
it such an explanation as will give
latitude to every department under it, to
take cognizance of every matter, not only
that affects the general and national
concerns of the union, but also of such as
relate to the administration of private
justice, and to regulating the internal
and local affairs of the different parts.
     Such a rule of exposition is not only
consistent with the general spirit of the
preamble, but it will stand confirmed
by considering more minutely the different
clauses of it.
     The first object declared to be in
view, is "To form a more perfect union."
It is to be observed, it is not an union
of states or bodies corporate; had this
been the case the existence of the state
governments might have been secured.  But
it is a union of the people of the United
States considered as one body, who are to
ratify this constitution if it is adopted. 
Now to make a union of this kind perfect,
it is necessary to abolish all inferior
governments, and to give the general one
complete legislative, executive and
judicial powers to every purpose.  The
courts therefore will establish it as a
rule in explaining the constitution; to
give it such a construction as will best
tend to perfect the union or take from the
state governments every power of either
making or executing laws.  The second
object is "to establish justice." This
must include not only the idea of
instituting the rule of justice, or of
making laws which shall be the measure or
rule of right, but also of providing for
the application of this rule or of
administering justice under it.  And
under this the courts will in their
decisions extend the power of the
government to all cases they possibly can,
or otherwise they will be restricted in
doing what appears to be the intent of the
constitution they should do, to wit, pass
laws and provide for the execution of
them, for the general distribution of
justice between man and man.  Another end
declared is "to insure domestic
tranquility." This comprehends a provision
against all private breaches of the peace,
as well as against all public commotions
or general insurrections; and to attain
the object of this clause fully, the
government must exercise the power of
passing laws in these subjects, as well as
of appointing magistrates with authority
to execute them.  And the courts will
adopt these ideas in their expositions.  I
might proceed to the other clause, in the
preamble, and it would appear by a
consideration of all of them separately,
as it does by taking them together, that
if the spirit of this system is to be
known from its declared end and design in
the preamble, its spirit is to subvert and
abolish all the powers of the state
governments, and to embrace every object
to which any government extends.
     As it sets out in the preamble with
this declared intention, so it proceeds in
the different parts with the same idea. 
Any person, who will peruse the 5th
section with attention, in which most of
the powers are enumerated, will perceive
that they either expressly or by
implication extend to almost every thing
about which any legislative power can be
employed.  If this equitable mode of
construction is applied to this part of
the constitution, nothing can stand before
it.
     This will certainly give the first
clause in that article a construction
which I confess I think the most natural
and grammatical one, to authorise the
Congress to do any thing which in their
judgment will tend to provide for the
general welfare, and this amounts to the
same thing as general and unlimited powers
of legislation in all cases.
     This same manner of explaining the
constitution, will fix a meaning, and a
very important one too, to the 12th clause
of the same section, which authorises the
Congress to make all laws which shall be
proper and necessary for carrying into
effect the foregoing powers, etc.  A
voluminous writer in favor of this system,
has taken great pains to convince the
public, that this clause means nothing:
for that the same powers expressed in
this, are implied in other parts of the
constitution.  Perhaps it is so, but still
this will undoubtedly be an excellent
auxiliary to assist the courts to discover
the spirit and reason of the constitution,
and when applied to any and every of the
other clauses granting power, will operate
powerfully in extracting the spirit from
them.
     I might instance a number of clauses
in the constitution, which, if explained
in an equitable manner, would extend the
powers of the government to every case,
and reduce the state legislatures to
nothing.  But, I should draw out my
remarks to an undue length, and I presume
enough has been said to show, that the
courts have sufficient ground in the
exercise of this power, to determine, that
the legislature have no bounds set to them
by this constitution, by any supposed
right the legislatures of the respective
states may have to regulate any of their
local concerns.
     I proceed, 2nd, to inquire, in what
manner this power will increase the
jurisdiction of the courts.
     I would here observe, that the
judicial power extends, expressly, to all
civil cases that may arise save such as
arise between citizens of the same state,
with this exception to those of that
description, that the judicial of the
United States have cognizance of cases
between citizens of the same state,
claiming lands -under grants of different
states.  Nothing more, therefore, is
necessary to give the courts of law, under
this constitution, complete jurisdiction
of all civil causes, but to comprehend
cases between citizens of the same state
not included in the foregoing exception.
     I presume there will be no difficulty
in accomplishing this.  Nothing more is
necessary than to set forth in the
process, that the party who brings the
suit is a citizen of a different state
from the one against whom the suit is
brought and there can be little doubt but
that the court will take cognizance of the
matter.  And if they do, who is to
restrain them?  Indeed, I will freely
confess, that it is my decided opinion,
that the courts ought to take cognizance
of such causes under the powers of the
constitution.  For one of the great ends
of the constitution is, "to establish
justice." This supposes that this cannot
be done under the existing governments of
the states; and there is certainly as good
reason why individuals, living in the same
state, should have justice, as those who
live in different states.  Moreover, the
constitution expressly declares, that "the
citizens of each state shall be entitled
to all the privileges and immunities of
citizens in the several states," It will
therefore be no fiction, for a citizen of
one state to set forth, in a suit, that he
is a citizen of another; for he that is
entitled to all the privileges and
immunities of a country, is a citizen of
that country.  And in truth, the citizen
of one state will, under this
constitution, be a citizen of every
state....
     It is obvious that these courts will
have authority to decide upon the validity
of the laws of any of the states, in all
cases where they come in question before
them.  Where the constitution gives the
general government exclusive jurisdiction,
they will adjudge all laws made by the
states, in such cases, void ab inilio. 
Where the constitution gives them
concurrent jurisdiction, the laws of the
United States must prevail, because they
are the supreme law.  In such cases,
therefore, the laws of the state
legislatures must be repealed, restricted,
or so construed, as to give full effect to
the laws of the union on the same subject. 
From these remarks it is easy to see, that
in proportion as the general government
acquires power and jurisdiction, by the
liberal construction which the judges
may give the constitution, those of the
states will lose their rights, until they
become so trifling and unimportant, as not
to be worth having.  I am much mistaken,
if this system will not operate to effect
this with as much celerity, as those who
have the administration of it will think
prudent to suffer it.  The remaining
objections of the judicial power shall be
considered in a future paper.
    The second paragraph of sect. 2, art.
3, is in these words: "In all cases
affecting ambassadors, other public
ministers and consuls, and those in which
a state shall be a party, the supreme
court shall have original jurisdiction. 
In all the other cases before mentioned,
the supreme court shall have appellate
jurisdiction, both as to law and fact,
with such exceptions, and under such
regulations as the Congress shall make."
     Although it is proper that the courts
of the general government should have
cognizance of all matters affecting
ambassadors, foreign ministers, and
consuls, yet I question much the propriety
of giving the supreme court original
jurisdiction in all cases of this kind.
     Ambassadors, and other public
ministers, claim, and are entitled by the
law of nations, to certain privileges, and
exemptions, both for their persons and
their servants.  The meanest servant of an
ambassador is exempted by the law of
nations from being sued for debt.  Should
a suit be brought against such an one by a
citizen, through inadvertency or want of
information, he will be subject to an
action in the supreme court.  All the
officers concerned in issuing or executing
the process will be liable to like
actions.  Thus may a citizen of a state be
compelled, at great expense and
inconveniency, to defend himself against a
suit, brought against him in the supreme
court, for inadvertently commencing an
action against the most menial servant of
an ambassador for a just debt.
     The appellate jurisdiction granted to
the supreme court, in this paragraph, has
justly been considered as one of the most
objectionable parts of the constitution. 
Under this power, appeals may be had from
the inferior courts to the supreme, in
every case to which the judicial power
extends, except in the few instances in
which the supreme court will have original
jurisdiction.
     By this article, appeals will lie to
the supreme court, in all criminal as well
as civil causes.  This I know, has been
disputed by some; but I presume the point
will appear clear to any one, who will
attend to the connection of this paragraph
with the one that precedes it.  In the
former, all the cases, to which the power
of the judicial shall extend, whether
civil or criminal, are enumerated.  There
is no criminal matter, to which the
judicial power of the United States will
extend, but such as are included under
some one of the cases specified in this
section.  For this section is intended to
define all cases, of every description, to
which the power of the judicial shall
reach.  But in all these cases it is
declared, the supreme court shall have
appellate jurisdiction, except in those
which affect ambassadors, other public
ministers and consuls, and those in which
a state shall be a party.  If then this
section extends the power of the judicial,
to criminal cases, it allows appeals in
such cases.  If the power of the judicial
is not extended to criminal matters by
this section, I ask, by what part of this
system does it appear, that they have any
cognizance of them?
     I believe it is a new and unusual
thing to allow appeals in criminal
matters.  It is contrary to the sense of
our laws, and dangerous to our lives and
liberties. . . . As our taw now stands, a
person charged with a crime has a right to
a fair and impartial trial by a jury of
his country, and their verdict is final. 
If be is acquitted no other court can call
upon him to answer for the same crime. 
But by this system, a man may have had
ever so fair a trial, have been acquitted
by ever so respectable a jury of his
country, and still the officer of the
government who prosecutes may appeal to
the supreme court.  The whole matter may
have a second hearing.  By this means,
persons who may have disobliged those who
execute the general government, may be
subjected to intolerable oppression.  They
may be kept in long and ruinous
confinement, and exposed to heavy and
insupportable charges, to procure the
attendance of witnesses, and provide the
means of their defense, at a great
distance from their places of residence.
     I can scarcely believe there can be a
considerate citizen of the United States
that will approve of this appellate
jurisdiction, as extending to criminal
cases, if they will give themselves time
for reflection.
     Whether the appellate jurisdiction as
it respects civil matters, will not prove
injurious to the rights of the citizens,
and destructive of those privileges which
have ever been held sacred by Americans,
and whether it will not render the
administration of justice intolerably
burdensome, intricate, and dilatory, will
best appear, when we have considered the
nature and operation of this power.
     It has been the fate of this clause,
as it has of most of those against which
unanswerable objections have been
offered, to be explained different ways,
by the advocates and opponents to the
constitution.  I confess I do not know
what the advocates of the system would
make it mean, for I have not been
fortunate enough to see in any publication
this clause taken up and considered.  It
is certain however, they do not admit the
explanation which those who oppose the
constitution give it, or otherwise they
would not so frequently charge them with
want of candor, for alleging that it takes
away the trial by jury.  Appeals from an
inferior to a superior court, as practised
in the civil law courts, are well
understood.  In these courts, the judges
determine both on the law and the fact;
and appeals are allowed from the inferior
to the superior courts, on the whole
merits; the superior tribunal will
re-examine all the facts as well as the
law, and frequently new facts will be
introduced, so as many times to render the
cause in the court of appeals very
different from what it was in the court
below.
     If the appellate jurisdiction of the
supreme court, be understood in the above
sense, the term is perfectly intelligible. 
The meaning then is, that in an the civil
case enumerated, the supreme court shall
have authority to reexamine the whole
merits of the case, both with respect to
the facts and the law which may arise
under it, without the intervention of a
jury; that this is the sense of this part
of the system appears to me clear, from
the express words of it, "in all the other
cases before mentioned, the supreme court
shall have appellate jurisdiction, both as
to law and fact, etc." Who are the supreme
court?  Does it not consist of the judges?
. . . They will therefore have the same
authority to determine the fact as they
will have to determine the law, and no
room is left for a jury on appeals to the
supreme court.
     If we understand the appellate
jurisdiction in any other way, we shall be
left utterly at a loss to give it a
meaning.  The common law is a, stranger to
any such jurisdiction: no appeals can lie
from any of our common law courts, upon
the merits of the case.  The only way in
which they can go up from an inferior to a
superior tribunal is by habeas corpus
before a hearing, or by certiorari, or
writ of error, after they are determined
in the subordinate courts.  But in no
case, when they are carried up, are the
facts re-examined, but they are always
taken as established in the inferior
court.
                         BRUTUS



Antifederalist No. 82

THE POWER OF THE JUDICIARY    (PART 4)



Part 1: Part 2 of "Brutus'" 14th essay
(from the March 6, 1788, New-York Journal)
Part 2:  The final segment of the 15th  
essay (March 20, 1788 New York Journal)



     It may still be insisted that this
clause [on appellate jurisdiction] does
not take away the trial by jury on
appeals, but that this may be provided for
by the legislature, under that paragraph
which authorises them to form regulations
and restrictions for the court in the
exercise of this power.
     The natural meaning of this paragraph
seems to be no more than this, that
Congress may declare, that certain cases
shall not be subject to the appellate
jurisdiction, and they may point out the
mode in which the court shall proceed
in bringing up the causes before them, the
manner of their taking evidence to
establish the facts, and the method of
the court's proceeding.  But I presume
they cannot take from the court the right
of deciding on the fact, any more than
they can deprive them of the right of
determining on the law, when a cause is
once before them; for they have the same
jurisdiction as to fact, as they have as
to the law.  But supposing the Congress
may under this clause establish the trial
by jury on appeals.  It does not seem to
me that it will render this article much
less exceptionable.  An appeal from one
court and jury, to another court and jury,
is a thing altogether unknown in the laws
of our state [New York], and in most of
the states in the union.  A practice of
this kind prevails in the eastern states:
actions are there commenced in the
inferior courts, and an appeal lies from
them on the whole merits to the superior
courts.  The consequence is well known. 
Very few actions are determined in the
lower courts; it is rare that a case of
any importance is not carried by appeal to
the supreme court, and the jurisdiction of
the inferior courts is merely nominal;
this has proved so burdensome to the
people in Massachusetts, that it was one
of the principal causes which excited
the insurrection in that state, in the
year past. [There are] very few sensible
and moderate men in that state but what
will admit, that the inferior courts are
almost entirely useless, and answer very
little purpose, save only to accumulate
costs against the poor debtors who are
already unable to pay their just debts.
     But the operation of the appellate
power in the supreme judicial of the
United States, would work infinitely more
mischief than any such power can 
do in a single state.
     The trouble and expense to the
parties would be endless and intolerable. 
No man can say where the supreme court
are to hold their sessions; the
presumption is, however, that it must be
at the seat of the general government.  In
this case parties must travel many hundred
miles, with their witnesses and lawyers,
to prosecute or defend a suit.  No man
of middling fortune, can sustain the
expense of such a law suit, and therefore
the poorer and middling class of citizens
will be under the necessity of submitting
to the demands of the rich and the lordly,
in cases that will come under the
cognizance of this court.  If it be said,
that to prevent this oppression, the
supreme court will sit in different parts
of the union, it may be replied, that this
would only make the oppression somewhat
more tolerable, but by no means so much as
to give a chance of justice to the poor
and middling class.  It is utterly
impossible that the supreme court can move
into so many different parts of the Union,
as to make it convenient or even tolerable
to attend before them with witnesses to
try causes from every part of the United
States.  If to avoid the expense and
inconvenience of calling witnesses from a
great distance, to give evidence before
the supreme court, the expedient of taking
the deposition of witnesses in writing
should be adopted, it would not help the
matter.  It is of great importance in the
distribution of justice that witnesses
should be examined face to face, that the
parties should have the fairest
opportunity of cross examining them in
order to bring out the whole truth.  There
is something in the manner in which a
witness delivers his testimony which can
not be committed to paper, and which yet
very frequently gives a complexion to his
evidence, very different from what it
would bear if committed to writing. 
Besides, the expense of taking written
testimony would be, enormous.  Those who
are acquainted with the costs that arise
in the courts, where all the evidence is
taken in writing, well know that they
exceed beyond all comparison those of the
common law courts, where witnesses are
examined viva voce.
     The costs accruing in courts
generally advance with the grade of the
courts.  Thus the charges attending a suit
in our common pleas, is much less than
those in the supreme court, and these are
much lower than those in the court of
chancery.  Indeed, the costs in the last
mentioned court, are in many cases so
exorbitant and the proceedings so dilatory
that the suitor had almost as well give up
his demand as to prosecute his suit.  We
have just reason to suppose, that the
costs in the supreme general court will
exceed either of our courts.  The officers
of the general court will be more
dignified than those of the states, the
lawyers of the most ability will practice
in them, and the trouble and expense of
attending them will be greater.  From all
these considerations, it appears, that the
expense attending suits in the supreme
court will be so great, as to put it out
of the power of the poor and middling
class of citizens to contest a suit in it.
     From these remarks it appears, that
the administration of justice under the
powers of the judicial will be dilatory;
that it will be attended with such an
heavy expense as to amount to little short
of a denial of justice to the poor and
middling class of people who in every
government stand most in need of the
protection of the law; and that the trial
by jury, which has so justly been the
boast of our forefathers as well as
ourselves is taken away under them.
     These extraordinary powers in this
court are the more objectionable, because
there does not appear the least necessity
for them, in order to secure a due and
impartial distribution of justice.
     The want of ability or integrity, or
a disposition to render justice to every
suitor, has not been objected against the
courts of the
respective states.  So far as I have been
informed, the courts of justice in all the
states have ever been found ready to
administer justice with promptitude and
impartiality according to the laws of the
land.  It is true in some of the states,
paper money has been made, and the debtor
authorised to discharge his debts with it,
at a depreciated value; in others, tender
laws have been passed, obliging the
creditor to receive on execution other
property than money in discharge of his
demand; and in several of the states laws
have been made unfavorable to the creditor
and tending to render property insecure.
     But these evils have not happened
from any defect in the judicial
departments of the states.  The courts
indeed are bound to take notice of these
laws, and so will the courts of the
general government be under obligation to
observe the laws made by the general
legislature not repugnant to the
constitution.  But so far have the
judicial been from giving undue latitude
of construction to laws of this kind, that
they have invariably strongly inclined to
the other side.  All the acts of our
legislature, which have been charged with
being of this complexion, have uniformly
received the strictest construction by the
judges, and have been extended to no cases
but to such as came within the strict
letter of the law.  In this way, have our
courts, I will not say evaded the law, but
so limited its operation as to work the
least possible injustice.  The same thing
has taken place in Rhode-Island, which has
justly rendered herself infamous, by
tenaciously adhering to her paper money
system.  The judges there gave a decision,
in opposition to the words of the statute,
on this principle: that a construction
according to the words of it would
contradict the fundamental maxims of their
laws and constitution.
     No pretext therefore can be formed,
from the conduct of the judicial courts
[of the states], which will justify giving
such powers to the supreme general court. 
For their decisions have been such as to
give just ground of confidence in them,
that they will finally adhere to the
principles of rectitude; and there is no
necessity of lodging these powers in the
[federal] courts, in order to guard
against the evils justly complained of, on
the subject of security of property under
this constitution.  For it has provided,
"that no state shall emit bills of credit,
or make any thing but gold and silver coin
a tender in payment of debts." It has also
declared, that "no state shall pass any
law impairing the obligation of
contracts." These prohibitions give the
most perfect security against those
attacks upon property which I am sorry to
say some of the states have but too
wantonly made, . . . For "this
constitution will be the supreme law
of the land, and the judges in every state
will be bound thereby; any thing in the
constitution and laws of any state to the
contrary notwithstanding."
     The courts of the respective states
might therefore have been securely trusted
with deciding all cases between man and
man, whether citizens of the same state or
of different states, or between foreigners
and citizens.  Indeed, for ought I see,
every case that can arise under the
constitution or laws of the United States
ought in the first instance to be tried in
the court of the state, except those which
might arise b@tween states, such as
respect ambassadors, or other public
ministers, and perhaps such as call in
question the claim of lands under grants
from different states.  The state courts
would be under sufficient control, if
writs of error were allowed from the state
courts to the supreme court of the union,
according to the practice of the courts in
England and of this state, on all cases in
which the laws of the union are concerned,
and perhaps to all cases in which a
foreigner is a party.
     This method would preserve the good
old way of administering justice, would
bring justice to every man's door, and
preserve the inestimable right of trial by
jury.  It would be following, as near as
our circumstances will admit, the practice
of the courts in England, which is almost
the only thing I would wish to copy in
their government.
     But as this system now stands, there
is to be as many inferior courts as
Congress may see fit to appoint, who are
to be authorised to originate and in the
first instance to try all the cases
falling under the description of this
article.  There is no security that a
trial by jury shall be had in these
courts, but the trial here will soon
become, as it is in Massachusetts'
inferior courts, [a] mere matter of form;
for an appeal may be had to the supreme
court on the whole merits.  This court is
to have power to determine in law and in
equity, on the law and the fact, and this
court is exalted above all other power in
the government, subject to no control; and
so fixed as not to be removable, but upon
impeachment, which is much the same thing
as not to be removable at all.
     To obviate the objections made to the
judicial power, it has been said, that the
Congress, in forming the regulations and
exceptions which they are authorised to
make respecting the appellate
jurisdiction, will make provision against
all the evils which are apprehended from
this article.  On this I would remark,
that this way of answering the objection
made to the power, implies an admission
that the power is in itself improper
without restraint; and if so, why not
restrict it in the first instance.
     The just way of investigating any
power given to a government, is to examine
its operation supposing it to be put in
exercise.  If upon inquiry, it appears
that the power, if exercised, would be
prejudicial, it ought not to be given. 
For to answer objections made to a power
given to a government, by saying it will
never be exercised, is really admitting
that the power ought not to be exercised,
and therefore ought not to be granted.
     I have, in the course of my
observation on this constitution, affirmed
and endeavored to show, that it was
calculated to abolish entirely the state
governments, and to melt down the states
into one entire government, for every
purpose as well internal and local, as
external and national.  In this opinion
the opposers of the system have generally
agreed - and this has been uniformly
denied by its advocates in public.  Some
individuals indeed, among them, will
confess that it has this tendency, and
scruple not to say it is what they wish;
and I will venture to predict, without the
spirit of prophecy, that if it is adopted
without amendments, or some such
precautions as will insure amendments
immediately after its adoption, that the
same gentlemen who have employed their
talents and abilities with such success to
influence the public mind to adopt this
plan, will employ the same to persuade the
people, that it will be for their good
to abolish the state governments as
useless and burdensome.
     Perhaps nothing could have been
better conceived to facilitate the
abolition of the state governments than
the constitution of the judicial.  They
will be able to extend the limits of the
general government gradually, and by
insensible degrees, and to accommodate
themselves to the temper of the people. 
Their decisions on the meaning of the
constitution will commonly take place in
cases which arise between individuals,
with which the public will not be
generally acquainted.  One adjudication
will form a precedent to the next, and
this to a following one.  These cases will
immediately affect individuals only, so
that a series of determinations will
probably take place before even the people
will be informed of them.  In the meantime
all the art and address of those who
wish for the change will be employed to
make converts to their opinion.  The
people will be told that their state
officers, and state legislatures, are a
burden and expense without affording any
solid advantage; that all the laws passed
by them might be equally well made by the
general legislature.  If to those who will
be interested in the change, be added
those who will be under their influence,
and such who will submit to almost any
change of government which they can be
persuaded to believe will ease them of
taxes, it is easy to see the party who
will favor the abolition of the state
governments would be far from being
inconsiderable.  In this situation, the
general legislature might pass one law
after another, extending the general and
abridging the state jurisdictions, and to
sanction their proceedings would have a
course of decisions of the judicial to
whom the constitution has committed the
power of explaining the constitution.  If
the states remonstrated, the
constitutional mode of deciding upon the
validity of the law is with the supreme
court; and neither people, nor state
legislatures, nor the general legislature
can remove them or reverse their decrees.
Had the construction of the constitution
been less [more?] with the legislature,
they would have explained it at their
peril.  If they exceed[ed] their powers,
or sought to find in the spirit of the
constitution, more than was expressed in
the letter, the people from whom they
derived their power could remove them, . .
. Indeed, I can see no other remedy that
the people can have against their rulers
for encroachments of this nature.  A
constitution is a compact of a people
with their rulers; if the rulers break the
compact, the people have a right and ought
to remove them and do themselves justice. 
But in order to enable them to do this
with the greater facility, those whom the
people choose at stated periods should
have the power in the last resort to
determine the sense of the compact.  If
they determine contrary to the
understanding of the people, an appeal
will lie to the people at the period when
the rulers are to be elected, and they
will have it in their power to remedy the
evil.  But when this power is lodged in
the hands of men independent of the
people, and of their representatives, and
who are not constitutionally accountable
for their opinions, no way is left to
control them but with a high hand and an
outstretched arm.
                    BRUTUS



Antifederalist No. 83

THE FEDERAL JUDICIARY AND THE ISSUE OF
TRIAL BY JURY

by Luther Martin of Maryland


      . . . . in all those cases, where
the general government has jurisdiction in
civil questions, the proposed Constitution
not only makes no provision for the trial
by jury in the first instance, but, by its
appellate jurisdiction, absolutely takes
away that inestimable privilege, since it
expressly declares the Supreme Court shall
have appellate jurisdiction both as to law
and fact.  Should, therefore, a jury be
adopted in the inferior court, it would
only be a needless expense, since, on an
appeal, the determination of that jury,
even on questions of fact, however honest
and upright, is to be of no possible
effect.  The Supreme Court is to take up
all questions of fact; to examine the
evidence relative thereto; to decide upon
them, in the same manner as if they had
never been tried by a jury.  Nor is trial
by jury secured in criminal cases.  It is
true that, in the first instance, in the
inferior court, the trial is to be by
jury.  In this, and in this only, is the
difference between criminal and civil
cases.  But, sir, the appellate
jurisdiction extends, as I have observed,
to cases criminal, as well as civil, and
on the appeal the court is to decide not
only on the law but on the fact.  If,
therefore, even in criminal cases, the
general government is not satisfied with
the verdict of the jury, its officer may
remove the prosecution to the Supreme
Court; and there the verdict of the jury
is to be of no effect, but the judges of
this court are to decide upon the fact as
well as the law, the same as in civil
cases.
     Thus, sir, jury trials, which have
ever been the boast of the English
constitution-which have been by our
several state constitutions so cautiously
secured to us-jury trials, which have so
long been considered the surest barrier
against arbitrary power, and the palladium
of liberty, with the loss of which the
loss of our freedom may be dated, are
taken away by the proposed form of
government, not only in a great variety of
questions between individual and
individual, but in every case, whether
civil or criminal, arising under the laws
of the United States, or the execution of
those laws.  It is taken away in those
very cases where, of all others, it is
most essential for our liberty to have it
sacredly guarded and preserved: in every
case, whether civil or criminal, between
government and its officers on the one
part, and the subject or citizen on the
other.  Nor was this the effect of
inattention, nor did it arise from any
real difficulty in establishing and
securing jury trials by the proposed
Constitution if the Convention had wished
to do so; but the same reason influenced
here as in the case of the establishment
of the inferior courts.  As they could
not trust state judges, so would they not
confide in state juries.  They alleged
that the general government and the
state governments would always be at
variance-that the citizens of the
different states would enter into the
views and interests of their respective
states, and therefore ought not to be
trusted in determining causes in which the
general government was any way interested,
without giving the general government an
opportunity, if it disapproved the verdict
of the jury, to appeal, and to have the
facts examined into again, and decided
upon by its own judges, on whom it
was thought a reliance might be had by the
general government, they being appointed
under its authority. Thus, sir, in
consequence of this appellate
jurisdiction, and its extension to facts
as well as to law, every arbitrary act
of the general government, and every
oppression of all that variety of officers
appointed under its authority for the
collection of taxes, duties, impost,
excise, and other purposes, must be
submitted to by the individual, or must be
opposed with little prospect of success,
and almost a certain prospect of ruin, at
least in those cases where the middle
and common class of citizens are
interested.  Since, to avoid that
oppression, or to obtain redress, the
application must be made to one of the
courts of the United States-by good
fortune, should this application be in the
first instance attended with success, and
should damages be recovered equivalent to
the injury sustained, an appeal lies to
the Supreme Court, in which case the
citizen must at once give up his cause, or
he must attend to it at the distance,
perhaps, of more than a thousand miles
from the place of his residence, and must
take measures to procure before that
court, on the appeal, all the evidence
necessary to support his action, which,
even if ultimately prosperous, must be
attended with a loss of time, a neglect of
business, and an expense, which will be
greater than the original grievance, and
to which men in moderate circumstances
would be utterly unequal.



Antifederalist No. 84

ON THE LACK OF A BILL OF RIGHTS

By "BRUTUS" 



     When a building is to be erected
which is intended to stand for ages, the
foundation should be firmly laid.  The
Constitution proposed to your acceptance
is designed, not for yourselves alone, but
for generations yet unborn.  The
principles, therefore, upon which the
social compact is founded, ought to have
been clearly and precisely stated, and
the most express and full declaration of
rights to have been made.  But on this
subject there is almost an entire
silence.
     If we may collect the sentiments of
the people of America, from their own most
solemn declarations, they hold this truth
as self-evident, that all men are by
nature free.  No one man, therefore, or
any class of men, have a right, by the
law of nature, or of God, to assume or
exercise authority over their fellows. 
The origin of society, then, is to be
sought, not in any natural right which one
man has to exercise authority over
another, but in the united consent of
those who associate.  The mutual wants of
men at first dictated the propriety of
forming societies: and when they were
established, protection and defense
pointed out the necessity of instituting
government.  In a state of nature every
individual pursues his own interest; in
this pursuit it frequently happened, that
the possessions or enjoyments of one
were sacrificed to the views and designs
of another; thus the weak were a prey to
the strong, the simple and unwary were
subject to impositions from those who were
more crafty and designing.  In this state
of things, every individual was insecure;
common interest, therefore, directed that
government should be established, in which
the force of the whole community should be
collected, and under such directions, as
to protect and defend every one who
composed it.  The common good, therefore,
is the end of civil government, and common
consent, the foundation on which it is
established.  To effect this end, it was
necessary that a certain portion of
natural liberty should be surrendered, in
order that what remained should be
preserved.  How great a proportion of
natural freedom is necessary to be yielded
by individuals, when they submit to
government, I shall not inquire.  So much,
however, must be given, as will be
sufficient to enable those to whom the
administration of the government is
committed, to establish laws for the
promoting the happiness of the community,
and to carry those laws into effect.  But
it is not necessary, for this purpose,
that individuals should relinquish all
their natural rights.  Some are of such a
nature that they cannot be surrendered. 
Of this kind are the rights of conscience,
the right of enjoying and defending life,
etc.  Others are not necessary to be
resigned in order to attain the end for
which government is instituted; these
therefore ought not to be given up.  To
surrender them, would counteract the very
end of government, to wit, the common
good.  From these observations it appears,
that in forming a government on its true
principles, the foundation should be laid
in the manner I before stated, by
expressly reserving to the people such of
their essential rights as are not
necessary to be parted with.  The same
reasons which at first induced mankind to
associate and institute government, will
operate to influence them to observe this
precaution.  If they had been disposed to
conform themselves to the rule of
immutable righteousness, government would
not have been requisite.  It was because
one part exercised fraud, oppression and
violence, on the other, that men came
together, and agreed that certain rules
should be formed to regulate the conduct
of all, and the power of the whole
community lodged in the hands of rulers to
enforce an obedience to them.  But rulers
have the same propensities as other men;
they are as likely to use the power with
which they are vested, for private
purposes, and to the injury and oppression
of those over whom they are placed, as
individuals in a state of nature are to
injure and oppress one another.  It is
therefore as proper that bounds should be
set to their authority, as that government
should have at first been instituted to
restrain private injuries.
     This principle, which seems so
evidently founded in the reason and nature
of things, is confirmed by universal
experience.  Those who have governed, have
been found in all ages ever active to
enlarge their powers and abridge the
public liberty.  This has induced the
people in all countries, where any sense
of freedom remained, to fix barriers
against the encroachments of their rulers. 
The country from which we have derived our
origin, is an eminent example of this. 
Their magna charta and bill of rights have
long been the boast, as well as the
security of that nation.  I need say no
more, I presume, to an American, than that
this principle is a fundamental one, in
all the Constitutions of our own States;
there is not one of them but what is
either founded on a declaration or bill of
rights, or has certain express reservation
of rights interwoven in the body of them. 
From this it appears, that at a time when
the pulse of liberty beat high, and when
an appeal was made to the people to form
Constitutions for the government of
themselves, it was their universal sense,
that such declarations should make a part
of their frames of government.  It is,
therefore, the more astonishing, that this
grand security to the rights of the people
is not to be found in this Constitution.
    It has been said, in answer to this
objection, that such declarations of
rights, however requisite they might be in
the Constitutions of the States, are not
necessary in the general Constitution,
because, "in the former case, every thing
which is not reserved is given; but in the
latter, the reverse of the proposition
prevails, and every thing which is not
given is reserved." It requires but little
attention to discover, that this mode of
reasoning is rather specious than solid. 
The powers, rights and authority, granted
to the general government by this
Constitution, are as complete, with
respect to every object to which they
extend, as that of any State government-it
reaches to every thing which concerns
human happiness-life, liberty, and
property are under its control.  There is
the same reason, therefore, that the
exercise of power, in this case, should be
restrained within proper limits, as in
that of the State governments.  To set
this matter in a clear light, permit me to
instance some of the articles of the bills
of rights of the individual States, and
apply them to the case in question.
     For the security of life, in criminal
prosecutions, the bills of rights of most
of the States have declared, that no man
shall be held to answer for a crime until
he is made fully acquainted with the
charge brought against him; he shall not
be compelled to accuse, or furnish
evidence against himself-the witnesses
against him shall be brought face to face,
and he shall be fully heard by himself or
counsel.  That it is essential to the
security of life and liberty, that trial
of facts be in the vicinity where they
happen.  Are not provisions of this kind
as necessary in the general government, as
in that of a particular State?  The powers
vested in the new Congress extend in many
cases to life; they are authorized
to provide for the punishment of a variety
of capital crimes, and no restraint is
laid upon them in its exercise, save only,
that "the trial of all crimes, except in
cases of impeachment, shall be by jury;
and such trial shall be in the State where
the said crimes shall have been
committed." No man is secure of a trial in
the county where he is charged to have
committed a crime; he may be brought from
Niagara to New York, or carried from
Kentucky to Richmond for trial for an
offense supposed to be committed.  What
security is there, that a man shall be
furnished with a full and plain
description of the charges against him? 
That he shall be allowed to produce all
proof he can in his favor?  That he shall
see the witnesses against him face to
face, or that he shall be fully heard in
his own defense by himself or counsel?
     For the security of liberty it has
been declared, "that excessive bail should
not be required, nor excessive fines
imposed, nor cruel or unusual punishments
inflicted.  That all warrants, without
oath or affirmation, to search suspected
places, or seize any person, his papers or
property, are grievous and oppressive."
     These provisions are as necessary
under the general government as under that
of the individual States; for the power of 
the former is as complete to the purpose
of requiring bail, imposing fines,
inflicting punishments, granting search
warrants, and seizing persons, papers, or
property, in certain cases, as the other.
     For the purpose of securing the
property of the citizens, it is declared
by all the States, "that in all
controversies at law, respecting property,
the ancient mode of trial by jury is one
of the best securities of the rights of
the people, and ought to remain sacred and
inviolable."
     Does not the same necessity exist of
reserving this right under their national
compact, as in that of the States?  Yet
nothing is said respecting it.  In the
bills of rights of the States it is
declared, that a well regulated militia is
the proper and natural defense of a free
government; that as standing armies in
time of peace are dangerous, they are not
to be kept up, and that the military
should be kept under strict subordination
to, and controlled by, the civil power.
      The same security is as necessary in
this Constitution, and much more so; for
the general government will have the sole
power to raise and to pay armies, and are
under no control in the exercise of it;
yet nothing of this is to be found in this
new system.
     I might proceed to instance a number
of other rights, which were as necessary
to be reserved, such as, that elections
should be free, that the liberty of the
press should be held sacred; but the
instances adduced are sufficient to prove
that this argument is without foundation. 
Besides, it is evident that the reason
here assigned was not the true one, why
the framers of this Constitution omitted
a bill of rights; if it had been, they
would not have made certain reservations,
while they totally omitted others of more
importance.  We find they have, in the
ninth section of the first article
declared, that the writ of habeas corpus
shall not be suspended, unless in cases of
rebellion,-that no bill of attainder, or
ex post facto law, shall be passed,-that
no title of nobility shall be granted by
the United States, etc.  If every thing
which is not given is reserved, what
propriety is there in these exceptions? 
Does this Constitution any where grant the
power of suspending the habeas corpus, to
make ex post facto laws, pass bills of
attainder, or grant titles of nobility? 
It certainly does not in express terms. 
The only answer that can be given is, that
these are implied in the general powers
granted.  With equal truth it may be said,
that all the powers which the bills of
rights guard against the abuse of, are
contained or implied in the general ones
granted by this Constitution.
     So far is it from being true, that a
bill of rights is less necessary in the
general Constitution than in those of the
States, the contrary is evidently the
fact.  This system, if it is possible for
the people of America to accede to it,
will be an original compact; and being the
last wilt, in the nature of things, vacate
every former agreement inconsistent with
it.  For it being a plan of government
received and ratified by the whole people,
all other forms which are in existence at
the time of its adoption, must yield to
it.  This is expressed in positive and
unequivocal terms in the sixth article:
"That this 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, any thing in the Constitution, or
laws of any State, to the contrary
notwithstanding."
     "The senators and representatives
before-mentioned, and the members of the
several State legislatures, and all
executive and judicial officers, both of
the United States, and of the several
States, shall be bound, by oath or
affirmation, to support this
Constitution."
      It is therefore not only necessarily
implied thereby, but positively expressed,
that the different State Constitutions are
repealed and entirely done away, so far as
they are inconsistent with this, with the
laws which shall be made in pursuance
thereof, or with treaties made, or which
shall be made, under the authority of the
United States.  Of what avail will the
Constitutions of the respective States be
to preserve the rights of its citizens? 
Should they be pled, the answer would be,
the Constitution of the United States, and
the laws made in pursuance thereof, is the
supreme law, and all legislatures and
judicial officers, whether of the General
or State governments, are bound by oath to
support it.  No privilege, reserved by the
bills of rights, or secured by the State
governments, can limit the power granted
by this, or restrain any laws made in
pursuance of it.  It stands, therefore, on
its own bottom, and must receive a
construction by itself, without any
reference to any other.  And hence it was
of the highest importance, that the most
precise and express declarations and
reservations of rights should have been
made.
     This will appear the more necessary,
when it is considered, that not only the
Constitution and laws made in pursuance
thereof, but alt treaties made, under the
authority of the United States, are the
supreme law of the land, and supersede the
Constitutions of all the States.  The
power to make treaties, is vested in the
president, by and with the advice and
consent of two-thirds of the senate.  I do
not find any limitation or restriction to
the exercise of this power.  The most
important article in any Constitution may
therefore be repealed, even without a
legislative act.  Ought not a government,
vested with such extensive and indefinite
authority, to have been restricted by a
declaration of rights?  It certainly
ought.
     So clear a point is this, that I
cannot help suspecting that persons who
attempt to persuade people that such
reservations were less necessary under
this Constitution than under those of the
States, are wilfully endeavoring to
deceive, and to lead you into an absolute
state of vassalage.
                         BRUTUS

 

Antifederalist No. 85

CONCLUDING REMARKS: EVILS UNDER
CONFEDERATION EXAGGERATED; CONSTITUTION
MUST BE DRASTICALLY REVISED BEFORE
ADOPTION



By Melancthon Smith (a "PLEBIAN") 


    . . . . It is agreed, the plan is
defective-that some of the powers granted
are dangerous-others not well defined-and
amendments are necessary why then not
amend it?  Why not remove the cause of
danger, and, possible, even the
apprehension of it?  The instrument is yet
in the hands of the people; it is not
signed, sealed, and delivered, and they
have power to give it any form they
please.
     But it is contended, adopt it first,
and then amend it.  I ask, why not amend,
and then adopt it?  Most certainly the
latter mode of proceeding is more
consistent with our ideas of prudence in
the ordinary concerns of life If men were
about entering into a contract respecting
their private concerns it would be highly
absurd in them to sign and seal an
instrument containing stipulations which
are contrary to their interests and
wishes, under the expectation, that the
parties, after its execution, would agree
to make alteration agreeable to their
desire.  They would insist upon the
exceptionable clause being altered before
they would ratify the contract.  And is a
compact for the government of ourselves
and our posterity of less moment than
contract between individuals?  Certainly
not.  But
to this reasoning, which at first vie
would appear to admit of no reply, a
variety of objections are made, and number
of reasons urged for adopting the system,
and afterwards proposing amendments.  Such
as have come under my observation, I shall
state, an remark upon.
     It is insisted, that the present
situation of our country is such, as not t
admit of a delay in forming a new
government, or of time sufficient t
deliberate and agree upon the amendments
which are proper, without involving
ourselves in a state of anarchy and
confusion.
     On this head, all the powers of
rhetoric, and arts of description, ar
employed to paint the condition of this
country, in the most hideous an frightful
colors.  We are told, that agriculture is
without encouragement trade is
languishing; private faith and credit are
disregarded, and public credit is
prostrate; that the laws and magistrates
are condemned and set at naught; that a
spirit of licentiousness is rampant, and
ready to break over every bound set to it
by the government; that private
embarrassments and distresses invade the
house of every man of middling property,
and insecurity threatens every man in
affluent circumstances: in short, that we
are in a state of the most grievous
calamity at home, and that we are
contemptible abroad, the scorn of foreign
nations, and the ridicule of the world. 
From this high wrought picture, one would
suppose that we were in a condition the
most deplorable of any people upon earth. 
But suffer me, my countrymen, to call your
attention to a serious and sober estimate
of the situation in which you are placed,
while I trace the embarrassments under
which you labor, to their true sources,
What is your condition?  Does not every
man sit under his own vine and under his
own fig-tree, having none to make him
afraid?  Does not every one follow his
calling without impediments and receive
the reward of his well-earned industry? 
The farmer cultivates his land, and
reaps the fruit which the bounty of heaven
bestows on his honest toil.  The mechanic
is exercised in his art, and receives the
reward of his labor.  The merchant drives
his commerce, and none can deprive him of
the gain he honestly acquires; all classes
and callings of men amongst us are
protected in their various pursuits, and
secured by the laws in the possession and
enjoyment of the property obtained in
those pursuits.  The laws are as well
executed as they ever were, in this or any
other country.  Neither the hand of
private violence, nor the more to be
dreaded hand of legal oppression, are
reached out to distress us.
     It is true, many individuals labor
under embarrassments, but these are to be
imputed to the unavoidable circumstances
of things, rather than to any defect in
our governments.  We have just emerged
from a long and expensive war.  During its
existence few people were in a situation
to increase their fortunes, but many to
diminish them.  Debts contracted before
the war were left unpaid while it existed,
and these were left a burden too heavy to
be home at the commencement of peace.  Add
to these, that when the war was over, too
many of us, instead of reassuming our old
habits of frugality, and industry, by
which alone every country must be placed
in a prosperous condition, took up the
profuse use of foreign commodities.  The
country was deluged with articles imported
from abroad, and the cash of the country
has been sent to pay for them, and still
left us laboring under the weight of a
huge debt to persons abroad.  These are
the true sources to which we are to trace
all the private difficulties of
individuals.  But will a new government
relieve you from these? ... Your present
condition is such as is common to take
place after the conclusion of a war. 
Those who can remember our situation after
the termination of the war preceding the
last, will recollect that our condition
was similar to the present, but time and
industry soon recovered us from it.  Money
was scarce, the produce of the country
much lower than it has been since the
peace, and many individuals were extremely
embarrassed with debts; and this happened
although we did not experience the
ravages, desolations, and loss of
property, that were suffered during the
late war.
     With regard to our public and
national concerns, what is there in our
condition that threatens us with any
immediate danger?  We are at peace with
all the world; no nation menaces us with
war; nor are we called upon by any cause
of sufficient importance to attack any
nation.  The state governments answer the
purposes of preserving the peace, and
providing for present exigencies.  Our
condition as a nation is in no respect
worse than it has been for several years
past.  Our public debt has been lessened
in various ways, and the western
territory, which has been relied upon as a
productive fund to discharge the national
debt has at length been brought to market,
and a considerable part actually applied
to its reduction.  I mention these things
to show, that there is nothing special, in
our present situation, as it respects our
national affairs, that should induce us to
accept the proffered system, without
taking sufficient time to consider and
amend it.  I do not mean by this, to
insinuate, that our government does not
stand in need of reform.  It is admitted
by all parties, that alterations are
necessary in our federal constitution, but
the circumstances of our case do by no
means oblige us to precipitate this
business, or require that we should adopt
a system materially defective.  We may
safely take time to deliberate and amend,
without in the meantime hazarding a
condition, in any considerable degree,
worse than the present.
     But it is said that if we postpone
the ratification of this system until the
necessary amendments are first
incorporated, the consequence will be a
civil war among the states. . . . The idea
of [New York] being attacked by the other
states, will appear visionary and
chimerical, if we consider that tho'
several of them have adopted the new
constitution, yet the opposition to it has
been numerous and formidable.  The eastern
states from whom we are told we have most
to fear, should a civil war be blown up,
would have full employ to keep in awe
those who are opposed to it in their own
governments.  Massachusetts, after a long
and dubious contest in their convention,
has adopted it by an inconsiderable
majority, and in the very act has marked
it with a stigma in its present form.  No
man of candor, judging from their public
proceedings, will undertake to say on
which side the majority of the people are. 
Connecticut, it is true, have acceded to
it, by a large majority of their
convention; but it is a fact well known,
that a large proportion of the yeomanry of
the country are against it.  And it is
equally true, that a considerable part of
those who voted for it in the convention,
wish to see it altered.  In both these
states the body of the common people, who
always do the fighting of a country, would
be more likely to fight against than for
it.  Can it then be presumed, that a
country divided among themselves, upon a
question where even the advocates for it,
admit the system they contend for needs
amendments, would make war upon a sister
state? . . . The idea is preposterous. . .
     The reasonings made use of to
persuade us, that no alterations can be
agreed upon previous to the adoption of
the system, are as curious as they are
futile.  It is alleged, that there was
great diversity of sentiments in forming
the proposed constitution; that it was the
effect of mutual concessions and a spirit
of accommodation, and from hence it is
inferred, that further changes cannot be
hoped for.  I should suppose that the
contrary inference was the fair one.  If
the convention, who framed this plan, were
possessed of such a spirit of moderation
and condescension, as to be induced to
yield to each other certain points, and to
accommodate themselves to each other's
opinions, and even prejudices, there is
reason to expect, that this same spirit
will continue and prevail in a future
convention, and produce an union of
sentiments on the points objected to. 
There is more reason to hope for this,
because the subject has received a full
discussion, and the minds of the people
much better known than they were when the
convention sat.  Previous to the meeting
of the convention, the subject of a new
form of government had been little thought
of, and scarcely written upon at all.  It
is true, it was the general opinion, that
some alterations were requisite in the
federal system.  This subject had been
contemplated by almost every thinking man
in the union.  It had been the subject of
many well- written essays, and it was the
anxious wish of every true friend to
America.  But it was Dever in the
contemplation of one in a thousand of
those who had reflected on the matter, to
have an entire change in the nature of our
federal government-to alter it from a
confederation of states, to that of one
entire government, which will swallow up
that of the individual states.  I will
venture to say, that the idea of a
government similar to the one proposed,
never entered the minds of the
legislatures who appointed the convention,
and of but very few of the members who
composed it, until they had assembled and
heard it proposed in that body: much less
had the people any conception of such a
plan until after it was promulgated, While
it was agitated, the debates of the
convention were kept an impenetrable
secret, and no opportunity was given for
well informed men to offer their
sentiments upon the subject.  The system
was therefore never publicly discussed,
nor indeed could be, because it was not
known to the people until after it was
proposed.  Since then, it has been the
object of universal attention-it has been
thought of by every reflecting man-been
discussed in a public and private manner,
in conversation and in print; its defects
have been pointed out, and every
objection to it stated; able advocates
have written in its favor, and able
opponents have written against it. And
what is the result?  It cannot be denied
but that the general opinion is, that it
contains material errors, and requires
important amendments.  This then being the
general sentiment, both of the friends and
foes of the system, can it be doubted,
that another convention would concur in
such amendments as would quiet the fears
of the opposers, and effect a great degree
of union on the subject?  -- An event most
devoutly to be wished.  But it is further
said, that there can be no prospect of
procuring alterations before it is acceded
to, because those who oppose it do not
agree among themselves with respect to the
amendments that are necessary.  To this I
reply, that this may be urged against
attempting alterations after it is
received, with as much force as before;
and therefore, if it concludes anything,
it is that we must receive any system of
government proposed to us, because those
who object to it do not entirely concur
in their objections.  But the assertion is
not true to any considerable extent. 
There is a remarkable uniformity in the
objections made to the constitution, on
the most important points.  It is also
worthy of notice, that very few of the
matters found fault with in it, are of a
local nature, or such as affect any
particular state; on the contrary, they
are such as concern the principles of
general liberty, in which the people of
New Hampshire, New York and Georgia are
equally interested. . . .
     It has been objected too that the new
system . . . is calculated to and will
effect such a consolidation of the States,
as to supplant and overturn the state
governments....
     It has been said that the
representation in the general legislature
is too small to secure liberty, or to
answer the intention of representation. 
In this there is an union of sentiments in
the opposers.
     The constitution has been opposed,
because it gives to the legislature an
unlimited power of taxation both with
respect to direct and indirect taxes, a
right to lay and collect taxes, duties,
imposts and excises of every kind and
description, and to any amount.  In this
there has been as general a concurrence of
opinion as in the former.
     The opposers to the constitution have
said that it is dangerous, because the
judicial power may extend to many cases
which ought to be reserved to the decision
of the State courts, and because the right
of trial by jury is not secured in the
judicial courts of the general government,
in civil cases.  All the opposers are
agreed in this objection.
     The power of the general legislature
to alter and regulate the time, place and
manner of holding elections, has been
stated as an argument against the adoption
of the system.  The opposers to the
constitution universally agree in this
objection. . .
     The mixture of legislative, judicial,
and executive powers in the Senate; the
little degree of responsibility under
which the great officers of government
will be held; and the liberty granted by
the system to establish and maintain a
standing army without any limitation or
restriction, are also objected to the
constitution; and in these there is a
great degree of unanimity of sentiment in
the opposers. . . .
     You have heard that both sides on
this great question, agree, that there are
in it great defects; yet the one side tell
you, choose such men as will adopt it, and
then amend it-while the other say, amend
previous to its adoption.  I have stated
to you my reasons for the latter, and I
think they are unanswerable.  Consider,
you the common people, the yeomanry of the
country, for to such I principally address
myself, you are to be the principal
losers, if the constitution should prove
oppressive.  When a tyranny is
established, there are always masters as
well as slaves; the great and well-born
are generally the former, and the middling
class the latter.  Attempts have been
made, and will be repeated, to alarm you
with the fear of consequences; but reflect
there are consequences on both sides, and
none can be apprehended more dreadful,
than entailing on ourselves and posterity
a government which will raise a few to the
height of human greatness and wealth,
while it will depress the many to the
extreme of poverty and wretchedness. 
Consequences are under the control of that
all-wise and all-powerful being, whose
providence conducts the affairs of all
men.  Our part is to act right, and we may
then have confidence that the consequences
will be favorable.  The path in which
you should walk is plain and open before
you; be united as one man, and direct your
choice to such men as have been uniform in
their opposition to the proposed system in
its present form, or without proper
alterations.  In men of this description
you have reason to place confidence, while
on the other hand, you have just cause to
distrust those who urge the adoption of a
bad constitution, under the delusive
expectation of making amendments after it
is acceded to.  Your jealousy of such
characters should be the more excited,
when you consider that the advocates for
the constitution have shifted their
ground.  When men are uniform in their
opinions, it affords evidence that they
are sincere.  When they are shifting, it
gives reason to believe, they do not
change from conviction.  It must be
recollected, that when this plan was first
announced to the public, its supporters
cried it up as the most perfect production
of human wisdom, It was represented either
as having no defects, or if it had, they
were so trifling and inconsiderable, that
they served only, as the shades in a fine
picture, to set off the piece to the
greater advantage.  One gentleman in
Philadelphia went so far in the ardor of
his enthusiasm in its favor, as to
pronounce, that the men who formed it were
as really under the guidance of Divine
Revelation, as was Moses, the Jewish
lawgiver.  Their language is now changed;
the question has been discussed; the
objections to the plan ably stated, and
they are admitted to be unanswerable.  The
same men who held it almost perfect, now
admit it is very imperfect; that it is
necessary it should be amended.  The only
question between us, is simply this@hall
we accede to a bad constitution, under the
uncertain prospect of getting it amended,
after we have received it, or shall we
amend it before we adopt it?  Common sense
will point out which is the most rational,
which is the most secure line of conduct. 
May heaven inspire you with wisdom, union,
moderation and firmness, and give you
hearts to make a proper estimate of your
invaluable privileges, and preserve them
to you, to be transmitted to your
posterity unimpaired, and may they be
maintained in this our country, while Sun
and Moon endure.
                       A PLEBEIAN