Federal Farmer IV


October 12, 1787

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It is said, that when the people make a constitution, and delegate powers
that all powers not delegated by them to those who govern is reserved in the people; and that the people, in the present case, have reserved
in themselves, and in their state governments, every right and power not
expressly given by the federal constitution to those who shall administer the
national government. It is said, on the other hand, that the people, when they
make a constitution, yield all power not expressly reserved to themselves. The
truth is, in either case, it is mere matter of opinion, and men usually take
either side of the argument, as will best answer their purposes: But the
general presumption being, that men who govern, will, in doubtful cases,
construe laws and constitutions most favourably for encreasing 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 1781 the people of the United States make 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 constitutions, 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 part of the compact between the people of each state and their
rulers, that no EXPOST FACTO laws shall be made. But the convention, by
Art. I 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 neighbourhood,—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 useless; it must be frequently
taken ex-parte, 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. …

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