Charles Tillinghast,Timothy Pickering
November 24, 1787
Charles Tillinghast to Timothy Pickering:
Presuming on the many Proofs of Friendship and Confidence, with which you have been pleased to Honour me, I have taken the Liberty to enclose a Pamphlet lately published here, on the Constitution pro-posed by the late Convention from an attentive reading of which, and a serious Examination of the Constitution itself, I cannot but consider it as very dangerous to the liberties of the People of this Continent-I do not consider myself competent to a perfect Knowledge of the more intricate parts of Government, but as I conceive the one in Question to be deficient in the grand Essentials requisite for the Security of those Rights for which we have so ably and successfully contended with Great-Britain, I have concluded, and I hope not impertinently, to ask your sentiments on this momentous Business.
If I am wrong in making this request, permit me to plead the indulgence you have always, generously, given me, in permitting me freely to write and speak my sentiments on every Subject, and as I have the utmost confidence in your disinterestedness in matters of a public as well as of a private nature, and that you never had, nor do I believe you ever will have, any views inconsistent with what you consider to be the true interest of the States, your Opinion, if you are so obliging as give it, I shall receive with the greatest Pleasure, and as I have the greatest con-fidence in your judgment, it will enable me to view the Government proposed in its true light.
Timothy Pickering to Charles Tillinghast:
Philadelphia, 6 December
I recd. your favour, inclosing a pamphlet signed the federal farmer, and requesting my opinion on the Constitution proposed by the Genl. Convention for the government of the United States.-I will give it to you as soon as I find leisure to write so long a letter as the subject will require, if I assign any reasons for my opinion. In the mean time I will give you that opinion, which is, That we ought not to hesitate to adopt the Constitution. The federal farmer is not a fair reasoner; and like all other opposers alarms himself & would alarm his readers with imaginary fears.
Tillinghast Philadelphia, 24 December
I acknowledged the receipt of your letter of Novr. 24th & in compliance with your request promised to write particularly my sentiments on the proposed constitution for the United States: but I expected my letter might be abridged, or superseded, by a publication of the debates in the convention of Pennsylvania, in which Mr. Wilson gave a satisfactory explanation of the plan, & convincing reasons for its adoption: this publication, however, I find will be delayed, by reason of the great length of the debates. I will therefore enter upon a more minute consideration of consider the subject as far as my leisure will permit; and as I know you possess great candour, & seek, for truth above all things, I shall write with pleasure; and, if reasons can be offered which prove that the constitution will not endanger, but on the contrary, be the means of preserving the liberties of our country, I am sure you will give it your zealous support.-As your fears have been excited principally by the pamphlet you sent me, I will examine the chief parts of it; and if I show that the writer is chargeable with sophistry, with a want of candour, and with designed misrepresentations, you will give him up as one who under pretence of securing the freedom of the people, has very different objects in view; and tho’ these may not be very obvious, yet we may be sure they exist: for honest intentions will put on no disguise.
I may first notice the art of the writer in assuming the title of The Federal Farmer & professing his “federal attachments” to prepossess his federal readers with an opinion that he really wishes to have established a good federal government for these states: but, Sir, I think it will appear that he is a wolfe in sheep’s cloathing.-His next attempt is to prejudice his readers against the constitution, by insinuating suggesting exciting suspicions of the eminent characters by whom it was formed; suggesting that the leading men in the convention were of aristocratic principles & seized the opportunity of laying the foundation of one general aristocratic government for the United States; and at the same time affecting deeply to lament the non-attendance of a few members whose presence & influence would have prevented it. Who those non-attending members were, I know not: probably some were necessarily absent; others perhaps from too great an indifference about the important interests of their country, and whose absence therefore is not a subject for lamentation: at all events, it must be admitted that the attending members were abundantly fully competent to the task of forming a plan of government for the U.S: and if we examine the characters of those who concurred in its adoption, we shall be satisfied that they aimed at forming a good one-the best indeed that could be agreed on.
Before I proceed to the plan itself let me remark another artifice of the federal farmer, and other opponents of the New Constitution, in raising a cry about aristocracy, as being (what it really is) the most oppressive kind of government; and then perpetually suggesting that the General Convention & the present defenders advocates of the constitution, designed & wished to introduce & establish that oppressive very government. But, my dear sir, be not alarmed with empty sounds. In the proposed constitution there is no foundation for an aristocracy: for its officers (including in that term as well the legislative as the executive branches) do not hold their places by hereditary right, nor for life, nor by electing one another; neither is any portion of wealth or property a necessary qualification. If a man has virtue & abilities, tho’ not worth a shilling, he may be the president of the United States. Does this savour of ARISTOCRACY? On the contrary, does it not manifest the marked regard of the Convention to preserve the equal rights of the people, without suffering mere wealth to hold the smallest preeminence over poverty attended with virtue and abilities. It deserves, indeed, particular notice, that while several of the state constitutions prescribe certain degrees of property as indispensable qualifications for offices, this which is proposed for the U.S. throws the door wide open for the entrance of every man who enjoys the confidence of his fellow citizens. We should also observe, that titles of nobility, a great stimulus to ambition, & the most odious as well as most dangerous distinction between the members of a community, are pointedly excluded from this system. If great hereditary estates, the foundation of nobility, are suffered to continue or to be created by entails it will be the fault, of the individual states, and not of the general government of the union. The laws of most, if not all, of the states admit the distribution of the property of a deceased citizen among all his children; and no entails ought to be permitted. And when all existing entails shall be broken, & future ones forbidden, we may make ourselves easy about aristocratic ambition. Great accumulations of wealth will then be rare, of short continuance, and consequently never dangerous.
The federal farmer describes three different forms of free government, under [either?] of which he says the United States may exist as a nation. The first is that which is at present established by the articles of confederation. The second is a government which might be grounded on the annihilation of the state governments, & a perfect union or consolidation of all the states under one entire government. The third will consolidate the states for certain national objects, and leave them severally distinct, independent republics as to internal police generally. The last is the form of government he would choose; and ’tis the last which has been chosen and recommended to the people by the general convention. The only difference, then, between them, should arise about the distribution of powers to be vested in the general government, & the governments of the several states. On this point we may expect men will differ: the general convention acknowledged the difficulty of drawing with precision the line between those rights which must be surrendered, & those which may be reserved. Let us now view their plan, & after a dispassionate consideration of it, seriously ask ourselves whether a bet-ter distribution of powers could be made? whether any are granted assigned to the general national government which do not strictly embrace national objects? & whether with less power the general government can preserve the union, establish justice, insure domestic tranquility, provide for the common defence & general welfare of the United States, & secure the blessings of liberty to ourselves and our posterity?
I shall not spend your time in descanting on one entire government for the United States, which would abolish all the state governments: for as such a government is not in contemplation, we have nothing to do with it. I will only remark, that as ’tis admitted by all, to be a form of government unsafe for a country so extensive as ours, the federal farmer and other opposers of the constitution, endeavour, by their bold, but unwarrantable assertions, to persuade their readers, not only that it will issue in such an entire government, but that its framers “proposed the partial consolidation with a view to collect all powers, ultimately in the United States into one entire government.” This, indeed, is an extraordinary conclusion. The federal farmer admits the necessity of the “partial consolidation as the only plan of government which can secure the freedom & happiness of this people”: and yet, when the Convention have proposed a “partial consolidation” he says they evidently designed thereby to effect ultimately an entire consolidation! (See page 10.)
In respect to the organization of the federal go general government, the federal farmer, as well as other opposers, object to the smallness of the representation of the people in the House of Representatives; and uniformly reason upon the supposition that it will never consist of more than 65 members; which is the number it is to be composed of only until the actual enumeration of the people shall have been made. As soon as that shall be effected, the House of Representatives, reckoning one member for every 30 th[ousand] of the people, will consist probably of at least one hundred members; and in 25 years more, of 200 members; and in half a century, it would consist of 400 members. It is true the Congress will possess a power of limiting the number of representatives, so that they shall never exceed one for every 30 thousand & they may be less; this power of regulating & [limiting?] the number of representatives is properly vested in Congress; otherwise that House would in a century become a most unweildy body, and as very a mob as the British House of Commons. Such a power of regulating the number of the representatives in the legislature is not a novelty. In Pennsylvania, where the proposed Constitution has been so violently opposed, there is vested in the Legislature a similar power.-The capital error of all these objectors and which reduces all their reasoning to mere sophistry, is their assuming for granted that our federal rulers will necessarily have interests sepirate from those of the people, and exercise the powers of government not only arbitrarily, but even wantonly. But, sir, on what do they ground such wild surmises? Why they tell you that Congress will have power to regulate the elections to senators & representatives, and that possessing this power, they will exercise it to deprive the people of the freedom of election. The federal farmer says (page 16) “The general legislature may so regulate elections as to secure the choice of any particular description of men-it may make the whole state one district-make the capital, or any places in the state, the place or places of election” -& so forth, in the same chimerical strain. But does he,-does any man of common sense, really believe that the Congress will ever be guilty of so wanton an exercise of power? Will the immediate representatives of the people in Congress ever consent to so oppressive a regulation? For whose benefit would they do it? Would not the first attempt certainly exclude them-selves? And would not the state legislatures at their next election of sen-ators, as certainly reject every one who should give his assent to such a law? And if the president did not firmly give his partial qualified negative to it, would he ever again be placed in the chair of government? What other oppressive regulation can they make which will not immediately, or in a short time, affect them in common with their fellow citizens? What then have we to fear on this head?-But will no advantage arise from this controuling power of Congress? Yes, certainly. I say a controuling power, because a candid interpretation of that clause in the constitution will convince us that it was designed only to enable the Congress to establish a uniformity in the mode of election that all the members of the legislature may stand on equal ground to cause it to be made in due time that the formation of a Congress may not be delayed by the delinquency of particular states and at places convenient to the people—section in the constitution will show that it is intended and expected that the times, places & modes of electing senators & representatives should be regulated by the state legislatures; but that if any particular state government should be refractory, and in the pride of state sovereignty, or influenced by any other improper motive, should either make no such regulations, or improper ones, then the Congress will have power to make such regulations as will insure to the people their rights of election, and establish a uniformity in the mode of constituting the members of the Senate & House of Representatives. If we give a loose to our imaginations, we may suppose that the State governments may abuse their power, and regulate these elections in such manner as would be highly inconvenient to the people, & injurious to the common interests of the States. And if such abuses should be attempted, will not the people rejoice that Congress have a constitutional power of correcting them?
The next objection is made to the constitution of the Senate, where the smallest state as “Delaware will have as much constitutional influence as the largest in the Union.” This objection is made with an ill grace by those who pretend to be advocates for a federal in opposition to a consolidated government. The federal farmer confesses that “the senate is entirely on the federal plan.” And tell me sir, without this equality of voice in the senate what constitutional means have the small states, of pre-serving that portion of independency which by this constitution they will retain. This reservation to each state of equal power in the senate is one striking proof that an entire consolidation or union of all the powers of government in the general legislature, was never intended: For in such a union of powers, the representation of each state in the senate should, like that in the House of Representatives be proportioned to the numbers of the people. But whether this equal power of each state in the Senate be proper or not what other provision could be made? The states represented in the General Convention were each sovereign & independent; and if the small states refused to yield that point, what was to be done? Was the union to be dissolved?-Notwithstanding this equality of power in the Senators of each state, have not the larger states made a great acquisition, by obtaining in the other branch of the legislature a representation proportioned to their strength & importance? How much more equal just will be their representation in the general government, by the proposed constitution, than it is now under the old articles of confederation?-In the choice of the president & Vice President the large states have also a voice proportioned to their numbers: unless in the case of the president no one candidate has a majority of the votes; for then the federal principle is again to operate, and the president is to be selected by the votes of the states, the representatives of each having one vote.—
On this branch of the general government, the federal farmer makes this observation-“I suppose it was impracticable for the three large states, as they were called, to get the senate formed on any other principles: But this only proves, that we cannot form one general government on equal & just principles and that we ought not to lodge in it such extensive powers before we are convinced of the practicability of organizing it on just and equal principles.”-Here we see the issue of all the objections of the federal farmer & other opposers of the Constitution: they go to the rejection of every form of an efficient government for the United States; and if these gentlemen could prevail, no such government would obtain, & the union would soon be dissolved: The fatal mischiefs that would result from such a dissolution need not be pointed out. I am happy however to find their opinions have so little influence. Two states have already unanimously adopted the Constitution. The opposition to it in Pennsylvania is evidently the opposition of a State-Party. This party is distinguished by the term Constitutionalists, which title they assumed as the warm advocates of the ill-arranged constitution of this state. Their opponents called themselves Republicans. And the politics of the state have been constantly vibrating as the one or the other party gained an ascendancy in the government. On the present question however the scene is greatly changed. Many, & those of the most sensible and worthy among the Constitutionalists, have decidedly declared themselves in favour of the proposed constitution, for the United States and the Republicans to a man (I believe) are its determined advocates. If it meets any opposition in the N. England states, it will be chiefly from the Shayites & Paper-Money-men: but their numbers & characters are alike contemptible.
But to return to the federal farmer. He mentions, as an objection, the eligibility of the members of Congress to offices civil and military, but without subjoining that the moment they accept any such offices they lose their seats in Congress. He objects also to the powers of the senate as too extensive, & thinks they will too much controul the president: and he even affects to tremble for the House of Representatives itself, as in danger of being oppressed by this Mighty Senate; (see page 20.) which is truly ridiculous. Can the Senate make war-raise armies, build navies, or raise a shilling of money without the House of Representatives? No! Where then is the danger that this House will be oppressed?-But the Senate have in effect the power of conferring offices. No such thing: they can only approve those whom the president shall name to offices; and the president, like the members of the House of Representatives, is to be chosen mediately by the people. The president will have no dependence on the state governments, & therefore will feel no inducements to submit himself to their representatives. Even the federal farmer admits “that the election of the president & Vice president seems to be properly secured.”
He objects to the powers of the judicial department, saying “in the Judges of the supreme court are lodged the law, the equity, and the fact.” These powers, he says, in well balanced governments are ever kept distinct. Why, sir, there are no such governments in the world, save the British, and those which have been formed on the British model, that is, the governments of the United States. Except in those governments, a court of equity, distinct from a court of law, is unknown. And among the U.S. two or three only I believe have such distinct courts of equity; in the rest, the courts of law possess also the powers of courts of equity for the most common & useful purposes. “It is (says the federal farmer) very dangerous to vest in the same judge power to decide on the law, and also general powers in equity; for if the law restrain him, he is only to step into his shoes of equity, and give what judgement his reason or opinion may dictate.” Sir, this is all stuff. Read a few passages in Blackstone’s commentaries and you will be convinced of it. “Equity (says he B. III. Ch. 27.)-is the soul & spirit of all law. Positive (or statute) law is construed; and rational law is made, by it. In this, equity is synonymous to Justice; in that, to the true sense & sound interpretation of the rule. But the very terms of a court of equity and a court of law, as contrasted to each other, are apt to confound & mislead us: as if the one judged without equity, & the other was not bound by any law. Whereas every definition or illustration to be met with which now draws a line between the two jurisdictions, by setting law & equity in opposition to each other, will be found either totally erroneous, or erroneous to a certain degree.” “Thus it is said that it is the business of a court of equity in England to abate the rigour of the Common Law. But no such power is contended for.” “It is also said, that a court of equity determines according to the spirit of the rule, and not according to the strictness of the letter. But so also does a court of law. Both, for instance, are equally bound, and equally profess, to interpret statutes according to the true intent of the Legislature.”-“There is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law & equity.”-“Each endeavours to fix and adopt the true sense of the law in question; neither can enlarge, diminish, or alter that sense in a single title.” Wherein then, you will ask, consists the essential difference between the two courts? Take Blackstone’s answer. “It principally consists in the different modes of administering justice in each; in the mode of proof the mode of trial, & the mode of relief. “;-From him also you will learn, that an act of parliament, was passed in the reign of Edward I (See Commentaries B III. Ch. 4) making a pro-vision which, by a little liberality in the Judges of the courts of law “might have effectually answered all the purposes of a court of equity.”-As our ideas of a court of equity are derived from the English Jurisprudence, so doubtless the Convention, in declaring that the judicial power shall extend to all cases in equity as well as law, under the federal jurisdiction, had principally a reference to the mode of administering justice, in cases of equity, agreeably to the practice of the court of Chancery in England.
I intended, my dear sir, to have examined all the principal objections of the federal farmer: but to do it particularly, I find would oblige me to write a volume: and I see in every page of his pamphlet so much disinginuity, I confess that I lose my patience: neither have I time to treat the subject much farther in detail. Let me observe generally, that the federal farmer, & other writers of the same stamp, upon reciting the powers of the Congress artfully throw in expressions, unduly to alarm their readers, with ideas that those powers will be arbitrarily exercised.-Such as “Will & pleasure” at Discretion-“Absolute power.” &c. (In page 21.), he says “a power to lay & collect taxes at discretion, is in itself of very great importance.” This is very true; but what then? Does not the legislature of New-York, & of every other state, possess the power of taxing the people at discretion? at will & pleasure? and in this as well as many other things is not their power absolute? But the presumption is, that this discretion, will & pleasure, & absolute power, will be under the direction of reason, and this presumption is so well founded, that the people are, in fact, under no apprehensions of oppression from the exercise of such powers.
I mentioned the disingenuity of the federal farmer. In addition to the instances already noticed, take the following. In letter 3d. p. 15 refer-ring to the proposed constitution, he says, “I wish the system adopted, with a few alterations; but those in my mind are essential ones.” Attend then to his remarks on the system, and you will find he objects to every essential part. To the smallness of the house of representatives-To the federal & small representation of the States in the Senate-And to the presi-dent as “a new species of executive,” and possessing too little power-To the Judiciary as vested with sundry powers which ought to be separated & exercised by different courts & bodies of men-And to the Congress, generally, as vested with too many powers. In a word, he objects to the whole system in the following passage, page 15. “I am fully convinced that we must organize the national government on different principles, and make the parts of it more efficient, and secure in it more effectually the different interests in the community; or else leave in the State governments some powers proposed to be lodged in it-at least till such an organization shall be found practicable.” In page 20. he admits “the formation of the Senate & the smallness of the House (of representatives.) to be the result of our situation, & the actual state of things:” such, consequently, as if we have any general government at all, we must be contented with; yet immediately after, he “endeavours to alarm us with the apprehensions of corruption in those assemblies, because so few may constitute a majority in each, and therefore easily “be influenced by bribes, offices & civilities”! -In page 21. he admits that the powers of regulating commerce, imposts, coin &c. ought clearly to be vested in Congress: yet in the next page joining the powers respecting coin and commerce with others he says they “will probably soon defeat the operations of the state laws & governments”! Thus he, like the other anti-federal writers, is perpetually conceding and retracting. They all know that the people of these states feel the necessity of an efficient federal government; & therefore they affect to desire the same thing: but in order to defeat the measure not only object to every material part of the system, but artfully start vain objects of fear & throw in here & there a sentence importing that such an efficient general government consistent with the liberties of the people is in the nature of things impracticable.
I will now as concisely as possible take notice of the powers of Congress, and enquire whether any which are improper or dangerous are proposed to be granted to them. But let me previously remark-That the people of the United States form one nation-that is evidently their interest and desire to continue one nation-altho’ for the more easy and advantageous management of the affairs of particular districts, the people have formed themselves into 13 seperate communities, or states; that the people of these distinct states, having certain common & general interests, it is obviously necessary that one common & general government should be erected, to manage those interests for the best good of the whole; that as all power resides originally in the people, they have a right to make such a distribution of it as they judge their true interests require. Consequently, they may constitute such officers as they think best, and with such powers as they think proper to confer, for the management of the affairs of their respective communities; and at the same time appoint another set of officers with general powers to conduct the common concerns of all the communities or states united.
Let us now see whether a single power is proposed to be vested in the general government, which does not concern more than a single state.
The Congress The General Government will have power to declare war-to provide for the common defence, and general welfare of the United States; to borrow money on their credit; to raise armies-build navies-and to make treaties with foreign nations. Now when powers are given to accomplish any particular thing, it is the dictate of common sense that such other subordinate powers as are indispensably necessary to that end should also be given, either expressly or by fair implication. But without the power of direct taxation how can the general government with certainty provide for the common defence raise armies, build navies, or repay monies which it shall have borrowed? The imposts may be insufficient. Other sources of revenue therefore must be opened. “It will be said-it has been said-the Congress may make requisitions on the several States!”-True, and be denied! “But if any state refuses to furnish its quota let the Congress have the power of compelling payment to be made by such delinquent state.”-And do you think sir this compulsive mode more eligible, than in the first instance to vest Congress with a Constitutional power of levying taxes for necessary national purposes? When a person has once refused what he ought to grant, do we not often see that from mere pride & obstinacy he persists in the refusal? States are composed of men, and are influenced by similar passions.-What if the 13 States were quite removed from the sea-coast, and revenues from imposts were consequently out of the question; at the same time their situation & circumstances should, as at present, require an intimate union, for their common good & security? How should the common treasury be supplied? We have had too melancholly proofs that requisitions on the 13 “sovereign & independent States” would be fruitless.-The Congress must then in such case have the power of direct taxation. And what would then be necessary for the entire supplies to the public treasury, may in our present situation be equally necessary to make good the deficiencies of the revenues arising from commerce. I therefore am willing, to submit to such direct taxation, whenever it shall be nec-essary to support the general government, & maintain the faith of the United States. And I am satisfied that as every such tax will equally affect the persons & estates of all the members of the general legislature, the power of levying it will be exercised with that prudence & propriety which we have a right to expect from wise and honest representatives-for if they are not wise and honest, it will be our own fault in choosing them; when we shall have no right to complain.
On a like principle it is proper that Congress should have power to provide for organizing, arming, and disciplining the militia, and for calling it forth to execute the laws of the union, suppress insurrections, & repel invasions. As the militia of different states may serve together, the great advantages of uniformity in their organization, arms & discipline must be obvious to every man who is possessed of any degree of military knowledge. But this uniformity can be introduced & maintained only by the power of the general government. It is also equally necessary that Congress should have power to call forth the militia for the purposes expressed in the constitution. In the late war, pressing as was the common danger, we have been witnesses of the delays of states to furnish their contingents, and of their unequal exertions. If this power is vested in Congress, the calls will ever be proportioned, in time as well as extent, to the exigency of the service. Yet this power, useful & necessary as it is, has been objected to as dangerous, & in its nature oppressive; and therefore, it is concluded that it ought to remain with the state legislatures. But who are they? The servants of the people,-chosen by them to superintend the local concerns of their particular states. And who are the Congress?-Can you give a different answer? Are not they also the servants of the people, -chosen by them to superintend their general concerns in the United States?-Only bear always in your mind, sir, that the inhabitants of the United States are but one people, one nation, and all fears and jealousies about the annihilation of State governments will vanish. Some men pride themselves in their particular state sovereignties; and are extremely jealous that the general government of the United States will swallow them up. Ridiculous!-Do not the people constitute the states? Are not the people the fountain of all power? & Whether this flow in 13 distinct streams,-or in one larger stream, with thirteen branches, is not the fountain still the same? and the Majesty of the People undiminished?
These objectors make a loud out-cry about standing armies; as tho’ a large and oppressive one, like the armies of the European nations, must be the necessary consequence of the adoption of this system: but this proceeds either from a want of discernment, or a design to excite a false alarm. We have a standing army at this hour-a small one indeed, & probably not adequate to the security of our frontiers; (tho’ Congress have not the means of enlarging it, however necessary it may become:) And whilst we have frontiers to defend, and arsenals to secure, we must continue to have a standing army.-The fallacy lies here. In Europe large standing armies are kept up to maintain the power of their hereditary monarchs, who generally are absolute. In these cases the standing armies are instruments to keep the people in slavery. But remember that in the United States a standing army cannot be raised or kept up without the consent of the people, by their representatives in Congress-representatives whose powers will have very limited durations, and who cannot lay a single burthen on the people of which they and their children will not bear their proportion. The English (& no people have been more jealous of their liberty) have never gone farther than to declare that a standing army ought not to be kept up without the consent of parliament. It is very possible indeed that this consent may sometimes be improperly obtained, through the undue and corrupt influence of an hereditary monarch: But as we have not nor in the ordinary course of our affairs have reason to expect any such creature in the United States, we may make ourselves easy on this head.-On this subject I will add one remark-That vesting Congress with power to call out the militia, as the exigencies of the union may require, instead of being complained of as a grievance, demands the warmest approbation of those who are in dread of a standing army; for that efficient command of the militia will forever render it unnecessary to raise a permanent body of troops, excepting only the necessary guards requisite for the frontiers & arsenals.
There is but one other objection which I have time to notice. That respects the judicial powers. The federal farmer, and other objectors, say the causes between a state & citizens of another state-between citizens of different states-and between a state, or the citizens thereof, and the citizens or subjects of foreign states, should be left, as they now are, to the decision of the particular state courts. The other cases enumerated in the constitution, seem to be admitted as properly cognizable in the federal courts. With respect to all the former, it may be said generally, that as the local laws of the several states may differ from each other-as particular states may pass laws unjust in their nature, or partially unjust as they regard foreigners and the citizens of other states, it seems to be a wise provision, which puts it in the power of such foreigners & citizens to resort to a court where they may reasonably expect to obtain impartial justice. But as the courts of particular states will in these cases have a concurrent jurisdiction, so whilst they proceed with reasonable dispatch, & support their characters by upright decisions, they will probably be almost exclusively resorted to: But there is a particular & very cogent reason for securing to foreigners a trial, either in the first instance, or by appeal, in a federal court. With respect to foreigners, all the states form but one nation. This nation is responsible for the conduct of all its members towards foreign nations, their citizens & subjects; and therefore ought to possess the power of doing justice to the latter. With-out this power, a single state, or one of its citizens, might embroil the whole union in a foreign war. The trial by jury in civil cases, I grant, is not explicitly secured by the constitution: but we have been told the reason of the omission; and to me it is satisfactory. In many of the civil causes subject to the jurisdiction of the federal courts, trial by jury would evidently be improper; in others, it was found impracticable in the convention to fix on the mode of constituting juries. But we may assure ourselves that the first Congress will make provision for introducing it in every case in which it shall be proper & practicable. Recollect that the Congress of 1775 directed jury trials in the cases of captures at sea: and that the inconveniences soon discovered in that mode of trial, obliged them to recommend an alteration, & to commit all admiralty causes to the decision of the judge alone. So if the Convention had positively fixed a trial by jury in all the civil cases in which it is contended that it ought to have been established,-it might have been found as highly inconvenient in practice as the case above stated; but being fixed by the constitution, the inconvenience must be endured (whatever mischief might arise from it) until the Constitution itself should be altered.
I have passed over unnoticed the other powers proposed to be vested in the Congress, because it seems to be generally admitted that they can properly be lodged no where else.
I now hope sir that I have presented you with such a view of the federal constitution, as will make it appear to you not that engine of tyranny which its enemies would fain persuade us it will prove. On the contrary, I hope you will be convinced that ’tis the best constitution we at present have any right to expect; & therefore that we ought readily to adopt it. Future experience may suggest improvements which may be engrafted into it. To satisfy you of my hearty approbation of it, I seriously assure you, that if I were now on my dying bed, & my sons were of mature age, my last words to them would be adopt this constitution. But for a clear and satisfactory explanation of it, I must refer you to Mr. Wilson’s speeches in the convention of this state. I am just informed that they will be published by themselves & therefore appear sooner than I before expected. Read them with attention and you may read them with confidence: for he is a great and a good man.
P.S. If this letter or any parts of it your doubts & fears, perhaps it may produce the like effect on the minds of some other candid enquirers; and therefore you may use it as you think proper-but only as from a friend, without suffering my name to appear, as it is of too little consequence to add weight to my sentiment, except with an intimate friendlike you.