Federal Farmer: Will the Judiciary Preserve or Destroy Liberty?

By: TJ Martinell

While many anti-federalists, including Patrick Henry, regarded the judicial branch of the federal government under the proposed U.S. Constitution with deep suspicion, the Federal Farmer took a more moderate, albeit guarded stance.

In his fifteenth letter dated Jan. 18, 1788, he wrote that hostility toward the overall concept of the federal judicial branch was not warranted. (bold emphasis added):

“These clauses present to view the constitutional features of the federal judiciary: this has been called a monster by some of the opponents, and some, even of the able advocates, have confessed they do not comprehend it. For myself, I confess, I see some good things in it, and some very extraordinary ones. ‘There shall be one supreme court.’ There ought in every government to be one court, in which all great questions in law shall finally meet and be determined.”

Like the general government itself, the Federal Farmer believed that a federal court was needed. However, he also believed it would be difficult to set it up properly, and in a way that preserved liberty. (bold emphasis added):

“In forming this branch, our objects are—a fair and open, a wise and impartial interpretation of the laws—a prompt and impartial administration of justice, between the public and individuals, and between man and man. I believe, there is no feature in a free government more difficult to be well formed than this, especially in an extensive country, where the courts must be numerous, or the citizens travel to obtain justice.”

While the Federal Farmer supported the idea of a federal court, he was wary, believing it was the branch that had the greatest potential to destroy freedom.

“It is true, the laws are made by the legislature; but the judges and juries, in their interpretations, and in directing the execution of them, have a very extensive influence for preserving or destroying liberty, and for changing the nature of the government. …These men, such is the state even of the best laws, may do wrong, perhaps, in a thousand cases, sometimes with, and sometimes without design, yet it may be impracticable to convict them of misconduct. These considerations shew, how cautious a free people ought to be in forming this, as well as the other branches of their government, especially when connected with other considerations equally deserving of notice and attention.”

The Federal Farmer worried that the judiciary would be able to operate under the public’s radar.

He argued that people are more inclined to watch over elected officials than those holding appointed offices. In addition to a lack of public oversight, judges could also err in their rulings. That, he worried, could  go unnoticed by most people.

“… A bad law immediately excites a general alarm; a bad judicial determination, though not less pernicious in its consequences, is immediately felt, probably, by a single individual only, and noticed only by his neighbours, and a few spectators in the court. In this country, we have been always jealous of the legislature, and especially the executive; but not always of the judiciary: but very few men attentively consider the essential parts of it, and its proceedings, as they tend to support or to destroy free government: only a few professional men are in a situation properly to do this; and it is often alledged, that instances have not frequently occurred, in which they have been found very alert watchmen in the cause of liberty, or in the cause of democratic republics.”

The Federal Farmer did concur with Patrick Henry on the importance of the right to a trial by jury (bold emphasis added).

“The jury trial, especially politically considered, is by far the most important feature in the judicial department in a free country, and the right in question is far the most valuable part, and the last that ought to be yielded, of this trial.”

He went on to explain that juries allow the “body of the people” to have direct influence on the operations of the government.

“Juries are constantly and frequently drawn from the body of the people, and freemen of the country; and by holding the jury’s right to return a general verdict in all cases sacred, we secure to the people at large, their just and rightful controul in the judicial department.”

The Federal Farmer went on to say that “if the conduct of judges shall be severe and arbitrary, and tend to subvert the laws, and change the forms of government, the jury may check them, by deciding against their opinions and determinations.”

He added that because the body of the people bear the burdens of the community, “they of right ought to have a controul in its important concerns, both in making and executing the laws, otherwise they may, in a short time, be ruined.”

“Nor is it merely this controul alone we are to attend to; the jury trial brings with it an open and public discussion of all causes, and excludes secret and arbitrary proceedings. This, and the democratic branch in the legislature, as was formerly observed, are the means by which the people are let into the knowledge of public affairs—are enabled to stand as the guardians of each others rights, and to restrain, by regular and legal measures, those who otherwise might infringe upon them.”

Although he doesn’t outright claim, as Henry did, that the Supreme Court would undermine the right to a trial by jury, the Federal Farmer notes that the constitutional language gives the high court the final word (bold emphasis added):

“To dwell a few minutes on this material point: the supreme court shall have jurisdiction both as to law and fact. What is meant by court? Is the jury included in the term, or is it not? I conceive it is not included: and so the members of convention, I am very sure, understand it.”

The Federal Farmer also observes that while the federal judiciary could undermine liberties, there were options under the Constitution to rectify it. One way was for Congress to strip the Supreme Court’s authority to rule on certain issues.

Yet, he didn’t think that would allow Congress to include jury trials under the purview of the “supreme court.” (bold emphasis added):

“But the supreme court is to have jurisdiction as to law and fact, under such regulations as congress shall make. I confess it is impossible to say how far congress may, with propriety, extend their regulations in this respect. I conceive, however, they cannot by any reasonable construction go so far as to admit the jury, on true common law principles, to try the fact, and give a general verdict. I have repeatedly examined this article: I think the meaning of it is, that the judges in all final questions, as to property and damages, shall have complete jurisdiction, to consider the whole cause, to examine the facts, and on a general view of them, and on principles of equity, as well as law, to give judgment.”

In his sixteenth letter dated Jan. 20, 1788, the Federal Farmer revisited the issue of jury trials, arguing that civil cases should be included in that right. (bold emphasis added):

The trial by jury in criminal as well as in civil causes, has long been considered as one of our fundamental rights, and has been repeatedly recognized and confirmed by most of the state conventions. But the constitution expressly establishes this trial in criminal, and wholly omits it in civil causes.

I have already observed upon the excellency and importance of the jury trial in civil as well as in criminal causes, instead of establishing it in criminal causes only; we ought to establish it generally;—instead of the clause of forty or fifty words relative to this subject, why not use the language that has always been used in this country, and say, “the people of the United States shall always be entitled to the trial by jury.” 

The Federal Farmer said this would “preserve the jury trial in all cases.”

“I have observed before, that it is the jury trial we want; the little different appendages and modifications tacked to it in the different states, are no more than a drop in the ocean: the jury trial is a solid uniform feature in a free government; it is the substance we would save, not the little articles of form.”