The Federalist Papers
FEDERALIST. No. 1
General Introduction
For the Independent Journal.
HAMILTON
To the People of the State of New York:
AFTER an unequivocal experience of the inefficacy of the
subsisting federal government, you are called upon to deliberate on
a new Constitution for the United States of America. The subject
speaks its own importance; comprehending in its consequences
nothing less than the existence of the UNION, the safety and welfare
of the parts of which it is composed, the fate of an empire in many
respects the most interesting in the world. It has been frequently
remarked that it seems to have been reserved to the people of this
country, by their conduct and example, to decide the important
question, whether societies of men are really capable or not of
establishing good government from reflection and choice, or whether
they are forever destined to depend for their political
constitutions on accident and force. If there be any truth in the
remark, the crisis at which we are arrived may with propriety be
regarded as the era in which that decision is to be made; and a
wrong election of the part we shall act may, in this view, deserve
to be considered as the general misfortune of mankind.
This idea will add the inducements of philanthropy to those of
patriotism, to heighten the solicitude which all considerate and
good men must feel for the event. Happy will it be if our choice
should be directed by a judicious estimate of our true interests,
unperplexed and unbiased by considerations not connected with the
public good. But this is a thing more ardently to be wished than
seriously to be expected. The plan offered to our deliberations
affects too many particular interests, innovates upon too many local
institutions, not to involve in its discussion a variety of objects
foreign to its merits, and of views, passions and prejudices little
favorable to the discovery of truth.
Among the most formidable of the obstacles which the new
Constitution will have to encounter may readily be distinguished the
obvious interest of a certain class of men in every State to resist
all changes which may hazard a diminution of the power, emolument,
and consequence of the offices they hold under the State
establishments; and the perverted ambition of another class of men,
who will either hope to aggrandize themselves by the confusions of
their country, or will flatter themselves with fairer prospects of
elevation from the subdivision of the empire into several partial
confederacies than from its union under one government.
It is not, however, my design to dwell upon observations of this
nature. I am well aware that it would be disingenuous to resolve
indiscriminately the opposition of any set of men (merely because
their situations might subject them to suspicion) into interested or
ambitious views. Candor will oblige us to admit that even such men
may be actuated by upright intentions; and it cannot be doubted
that much of the opposition which has made its appearance, or may
hereafter make its appearance, will spring from sources, blameless
at least, if not respectable--the honest errors of minds led astray
by preconceived jealousies and fears. So numerous indeed and so
powerful are the causes which serve to give a false bias to the
judgment, that we, upon many occasions, see wise and good men on the
wrong as well as on the right side of questions of the first
magnitude to society. This circumstance, if duly attended to, would
furnish a lesson of moderation to those who are ever so much
persuaded of their being in the right in any controversy. And a
further reason for caution, in this respect, might be drawn from the
reflection that we are not always sure that those who advocate the
truth are influenced by purer principles than their antagonists.
Ambition, avarice, personal animosity, party opposition, and many
other motives not more laudable than these, are apt to operate as
well upon those who support as those who oppose the right side of a
question. Were there not even these inducements to moderation,
nothing could be more ill-judged than that intolerant spirit which
has, at all times, characterized political parties. For in
politics, as in religion, it is equally absurd to aim at making
proselytes by fire and sword. Heresies in either can rarely be
cured by persecution.
And yet, however just these sentiments will be allowed to be, we
have already sufficient indications that it will happen in this as
in all former cases of great national discussion. A torrent of
angry and malignant passions will be let loose. To judge from the
conduct of the opposite parties, we shall be led to conclude that
they will mutually hope to evince the justness of their opinions,
and to increase the number of their converts by the loudness of
their declamations and the bitterness of their invectives. An
enlightened zeal for the energy and efficiency of government will be
stigmatized as the offspring of a temper fond of despotic power and
hostile to the principles of liberty. An over-scrupulous jealousy
of danger to the rights of the people, which is more commonly the
fault of the head than of the heart, will be represented as mere
pretense and artifice, the stale bait for popularity at the expense
of the public good. It will be forgotten, on the one hand, that
jealousy is the usual concomitant of love, and that the noble
enthusiasm of liberty is apt to be infected with a spirit of narrow
and illiberal distrust. On the other hand, it will be equally
forgotten that the vigor of government is essential to the security
of liberty; that, in the contemplation of a sound and well-informed
judgment, their interest can never be separated; and that a
dangerous ambition more often lurks behind the specious mask of zeal
for the rights of the people than under the forbidden appearance of
zeal for the firmness and efficiency of government. History will
teach us that the former has been found a much more certain road to
the introduction of despotism than the latter, and that of those men
who have overturned the liberties of republics, the greatest number
have begun their career by paying an obsequious court to the people;
commencing demagogues, and ending tyrants.
In the course of the preceding observations, I have had an eye,
my fellow-citizens, to putting you upon your guard against all
attempts, from whatever quarter, to influence your decision in a
matter of the utmost moment to your welfare, by any impressions
other than those which may result from the evidence of truth. You
will, no doubt, at the same time, have collected from the general
scope of them, that they proceed from a source not unfriendly to the
new Constitution. Yes, my countrymen, I own to you that, after
having given it an attentive consideration, I am clearly of opinion
it is your interest to adopt it. I am convinced that this is the
safest course for your liberty, your dignity, and your happiness. I
affect not reserves which I do not feel. I will not amuse you with
an appearance of deliberation when I have decided. I frankly
acknowledge to you my convictions, and I will freely lay before you
the reasons on which they are founded. The consciousness of good
intentions disdains ambiguity. I shall not, however, multiply
professions on this head. My motives must remain in the depository
of my own breast. My arguments will be open to all, and may be
judged of by all. They shall at least be offered in a spirit which
will not disgrace the cause of truth.
I propose, in a series of papers, to discuss the following
interesting particulars:
THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY
THE INSUFFICIENCY OF THE PRESENT CONFEDERATION
TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST
EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS
OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE
PRINCIPLES OF REPUBLICAN GOVERNMENT
ITS ANALOGY TO YOUR OWN STATE CONSTITUTION
and lastly, THE ADDITIONAL SECURITY WHICH ITS
ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF
GOVERNMENT, TO LIBERTY, AND TO PROPERTY.
In the progress of this discussion I shall endeavor to give a
satisfactory answer to all the objections which shall have made
their appearance, that may seem to have any claim to your attention.
It may perhaps be thought superfluous to offer arguments to
prove the utility of the UNION, a point, no doubt, deeply engraved
on the hearts of the great body of the people in every State, and
one, which it may be imagined, has no adversaries. But the fact is,
that we already hear it whispered in the private circles of those
who oppose the new Constitution, that the thirteen States are of too
great extent for any general system, and that we must of necessity
resort to separate confederacies of distinct portions of the
whole.1 This doctrine will, in all probability, be gradually
propagated, till it has votaries enough to countenance an open
avowal of it. For nothing can be more evident, to those who are
able to take an enlarged view of the subject, than the alternative
of an adoption of the new Constitution or a dismemberment of the
Union. It will therefore be of use to begin by examining the
advantages of that Union, the certain evils, and the probable
dangers, to which every State will be exposed from its dissolution.
This shall accordingly constitute the subject of my next address.
PUBLIUS.
1 The same idea, tracing the arguments to their consequences, is
held out in several of the late publications against the new
Constitution.
FEDERALIST No. 2
Concerning Dangers from Foreign Force and Influence
For the Independent Journal.
JAY
To the People of the State of New York:
WHEN the people of America reflect that they are now called upon
to decide a question, which, in its consequences, must prove one of
the most important that ever engaged their attention, the propriety
of their taking a very comprehensive, as well as a very serious,
view of it, will be evident.
Nothing is more certain than the indispensable necessity of
government, and it is equally undeniable, that whenever and however
it is instituted, the people must cede to it some of their natural
rights in order to vest it with requisite powers. It is well worthy
of consideration therefore, whether it would conduce more to the
interest of the people of America that they should, to all general
purposes, be one nation, under one federal government, or that they
should divide themselves into separate confederacies, and give to
the head of each the same kind of powers which they are advised to
place in one national government.
It has until lately been a received and uncontradicted opinion
that the prosperity of the people of America depended on their
continuing firmly united, and the wishes, prayers, and efforts of
our best and wisest citizens have been constantly directed to that
object. But politicians now appear, who insist that this opinion is
erroneous, and that instead of looking for safety and happiness in
union, we ought to seek it in a division of the States into distinct
confederacies or sovereignties. However extraordinary this new
doctrine may appear, it nevertheless has its advocates; and certain
characters who were much opposed to it formerly, are at present of
the number. Whatever may be the arguments or inducements which have
wrought this change in the sentiments and declarations of these
gentlemen, it certainly would not be wise in the people at large to
adopt these new political tenets without being fully convinced that
they are founded in truth and sound policy.
It has often given me pleasure to observe that independent
America was not composed of detached and distant territories, but
that one connected, fertile, widespreading country was the portion
of our western sons of liberty. Providence has in a particular
manner blessed it with a variety of soils and productions, and
watered it with innumerable streams, for the delight and
accommodation of its inhabitants. A succession of navigable waters
forms a kind of chain round its borders, as if to bind it together;
while the most noble rivers in the world, running at convenient
distances, present them with highways for the easy communication of
friendly aids, and the mutual transportation and exchange of their
various commodities.
With equal pleasure I have as often taken notice that Providence
has been pleased to give this one connected country to one united
people--a people descended from the same ancestors, speaking the same
language, professing the same religion, attached to the same
principles of government, very similar in their manners and customs,
and who, by their joint counsels, arms, and efforts, fighting side
by side throughout a long and bloody war, have nobly established
general liberty and independence.
This country and this people seem to have been made for each
other, and it appears as if it was the design of Providence, that an
inheritance so proper and convenient for a band of brethren, united
to each other by the strongest ties, should never be split into a
number of unsocial, jealous, and alien sovereignties.
Similar sentiments have hitherto prevailed among all orders and
denominations of men among us. To all general purposes we have
uniformly been one people each individual citizen everywhere
enjoying the same national rights, privileges, and protection. As a
nation we have made peace and war; as a nation we have vanquished
our common enemies; as a nation we have formed alliances, and made
treaties, and entered into various compacts and conventions with
foreign states.
A strong sense of the value and blessings of union induced the
people, at a very early period, to institute a federal government to
preserve and perpetuate it. They formed it almost as soon as they
had a political existence; nay, at a time when their habitations
were in flames, when many of their citizens were bleeding, and when
the progress of hostility and desolation left little room for those
calm and mature inquiries and reflections which must ever precede
the formation of a wise and wellbalanced government for a free
people. It is not to be wondered at, that a government instituted
in times so inauspicious, should on experiment be found greatly
deficient and inadequate to the purpose it was intended to answer.
This intelligent people perceived and regretted these defects.
Still continuing no less attached to union than enamored of
liberty, they observed the danger which immediately threatened the
former and more remotely the latter; and being pursuaded that ample
security for both could only be found in a national government more
wisely framed, they as with one voice, convened the late convention
at Philadelphia, to take that important subject under consideration.
This convention composed of men who possessed the confidence of
the people, and many of whom had become highly distinguished by
their patriotism, virtue and wisdom, in times which tried the minds
and hearts of men, undertook the arduous task. In the mild season
of peace, with minds unoccupied by other subjects, they passed many
months in cool, uninterrupted, and daily consultation; and finally,
without having been awed by power, or influenced by any passions
except love for their country, they presented and recommended to the
people the plan produced by their joint and very unanimous councils.
Admit, for so is the fact, that this plan is only RECOMMENDED,
not imposed, yet let it be remembered that it is neither recommended
to BLIND approbation, nor to BLIND reprobation; but to that sedate
and candid consideration which the magnitude and importance of the
subject demand, and which it certainly ought to receive. But this
(as was remarked in the foregoing number of this paper) is more to
be wished than expected, that it may be so considered and examined.
Experience on a former occasion teaches us not to be too sanguine
in such hopes. It is not yet forgotten that well-grounded
apprehensions of imminent danger induced the people of America to
form the memorable Congress of 1774. That body recommended certain
measures to their constituents, and the event proved their wisdom;
yet it is fresh in our memories how soon the press began to teem
with pamphlets and weekly papers against those very measures. Not
only many of the officers of government, who obeyed the dictates of
personal interest, but others, from a mistaken estimate of
consequences, or the undue influence of former attachments, or whose
ambition aimed at objects which did not correspond with the public
good, were indefatigable in their efforts to pursuade the people to
reject the advice of that patriotic Congress. Many, indeed, were
deceived and deluded, but the great majority of the people reasoned
and decided judiciously; and happy they are in reflecting that they
did so.
They considered that the Congress was composed of many wise and
experienced men. That, being convened from different parts of the
country, they brought with them and communicated to each other a
variety of useful information. That, in the course of the time they
passed together in inquiring into and discussing the true interests
of their country, they must have acquired very accurate knowledge on
that head. That they were individually interested in the public
liberty and prosperity, and therefore that it was not less their
inclination than their duty to recommend only such measures as,
after the most mature deliberation, they really thought prudent and
advisable.
These and similar considerations then induced the people to rely
greatly on the judgment and integrity of the Congress; and they
took their advice, notwithstanding the various arts and endeavors
used to deter them from it. But if the people at large had reason
to confide in the men of that Congress, few of whom had been fully
tried or generally known, still greater reason have they now to
respect the judgment and advice of the convention, for it is well
known that some of the most distinguished members of that Congress,
who have been since tried and justly approved for patriotism and
abilities, and who have grown old in acquiring political
information, were also members of this convention, and carried into
it their accumulated knowledge and experience.
It is worthy of remark that not only the first, but every
succeeding Congress, as well as the late convention, have invariably
joined with the people in thinking that the prosperity of America
depended on its Union. To preserve and perpetuate it was the great
object of the people in forming that convention, and it is also the
great object of the plan which the convention has advised them to
adopt. With what propriety, therefore, or for what good purposes,
are attempts at this particular period made by some men to
depreciate the importance of the Union? Or why is it suggested that
three or four confederacies would be better than one? I am
persuaded in my own mind that the people have always thought right
on this subject, and that their universal and uniform attachment to
the cause of the Union rests on great and weighty reasons, which I
shall endeavor to develop and explain in some ensuing papers. They
who promote the idea of substituting a number of distinct
confederacies in the room of the plan of the convention, seem
clearly to foresee that the rejection of it would put the
continuance of the Union in the utmost jeopardy. That certainly
would be the case, and I sincerely wish that it may be as clearly
foreseen by every good citizen, that whenever the dissolution of the
Union arrives, America will have reason to exclaim, in the words of
the poet: ``FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS.''
PUBLIUS.
FEDERALIST No. 3
The Same Subject Continued
(Concerning Dangers From Foreign Force and Influence)
For the Independent Journal.
JAY
To the People of the State of New York:
IT IS not a new observation that the people of any country (if,
like the Americans, intelligent and wellinformed) seldom adopt and
steadily persevere for many years in an erroneous opinion respecting
their interests. That consideration naturally tends to create great
respect for the high opinion which the people of America have so
long and uniformly entertained of the importance of their continuing
firmly united under one federal government, vested with sufficient
powers for all general and national purposes.
The more attentively I consider and investigate the reasons
which appear to have given birth to this opinion, the more I become
convinced that they are cogent and conclusive.
Among the many objects to which a wise and free people find it
necessary to direct their attention, that of providing for their
SAFETY seems to be the first. The SAFETY of the people doubtless
has relation to a great variety of circumstances and considerations,
and consequently affords great latitude to those who wish to define
it precisely and comprehensively.
At present I mean only to consider it as it respects security
for the preservation of peace and tranquillity, as well as against
dangers from FOREIGN ARMS AND INFLUENCE, as from dangers of the LIKE
KIND arising from domestic causes. As the former of these comes
first in order, it is proper it should be the first discussed. Let
us therefore proceed to examine whether the people are not right in
their opinion that a cordial Union, under an efficient national
government, affords them the best security that can be devised
against HOSTILITIES from abroad.
The number of wars which have happened or will happen in the
world will always be found to be in proportion to the number and
weight of the causes, whether REAL or PRETENDED, which PROVOKE or
INVITE them. If this remark be just, it becomes useful to inquire
whether so many JUST causes of war are likely to be given by UNITED
AMERICA as by DISUNITED America; for if it should turn out that
United America will probably give the fewest, then it will follow
that in this respect the Union tends most to preserve the people in
a state of peace with other nations.
The JUST causes of war, for the most part, arise either from
violation of treaties or from direct violence. America has already
formed treaties with no less than six foreign nations, and all of
them, except Prussia, are maritime, and therefore able to annoy and
injure us. She has also extensive commerce with Portugal, Spain,
and Britain, and, with respect to the two latter, has, in addition,
the circumstance of neighborhood to attend to.
It is of high importance to the peace of America that she
observe the laws of nations towards all these powers, and to me it
appears evident that this will be more perfectly and punctually done
by one national government than it could be either by thirteen
separate States or by three or four distinct confederacies.
Because when once an efficient national government is
established, the best men in the country will not only consent to
serve, but also will generally be appointed to manage it; for,
although town or country, or other contracted influence, may place
men in State assemblies, or senates, or courts of justice, or
executive departments, yet more general and extensive reputation for
talents and other qualifications will be necessary to recommend men
to offices under the national government,--especially as it will have
the widest field for choice, and never experience that want of
proper persons which is not uncommon in some of the States. Hence,
it will result that the administration, the political counsels, and
the judicial decisions of the national government will be more wise,
systematical, and judicious than those of individual States, and
consequently more satisfactory with respect to other nations, as
well as more SAFE with respect to us.
Because, under the national government, treaties and articles of
treaties, as well as the laws of nations, will always be expounded
in one sense and executed in the same manner,--whereas, adjudications
on the same points and questions, in thirteen States, or in three or
four confederacies, will not always accord or be consistent; and
that, as well from the variety of independent courts and judges
appointed by different and independent governments, as from the
different local laws and interests which may affect and influence
them. The wisdom of the convention, in committing such questions to
the jurisdiction and judgment of courts appointed by and responsible
only to one national government, cannot be too much commended.
Because the prospect of present loss or advantage may often
tempt the governing party in one or two States to swerve from good
faith and justice; but those temptations, not reaching the other
States, and consequently having little or no influence on the
national government, the temptation will be fruitless, and good
faith and justice be preserved. The case of the treaty of peace
with Britain adds great weight to this reasoning.
Because, even if the governing party in a State should be
disposed to resist such temptations, yet as such temptations may,
and commonly do, result from circumstances peculiar to the State,
and may affect a great number of the inhabitants, the governing
party may not always be able, if willing, to prevent the injustice
meditated, or to punish the aggressors. But the national
government, not being affected by those local circumstances, will
neither be induced to commit the wrong themselves, nor want power or
inclination to prevent or punish its commission by others.
So far, therefore, as either designed or accidental violations
of treaties and the laws of nations afford JUST causes of war, they
are less to be apprehended under one general government than under
several lesser ones, and in that respect the former most favors the
SAFETY of the people.
As to those just causes of war which proceed from direct and
unlawful violence, it appears equally clear to me that one good
national government affords vastly more security against dangers of
that sort than can be derived from any other quarter.
Because such violences are more frequently caused by the
passions and interests of a part than of the whole; of one or two
States than of the Union. Not a single Indian war has yet been
occasioned by aggressions of the present federal government, feeble
as it is; but there are several instances of Indian hostilities
having been provoked by the improper conduct of individual States,
who, either unable or unwilling to restrain or punish offenses, have
given occasion to the slaughter of many innocent inhabitants.
The neighborhood of Spanish and British territories, bordering
on some States and not on others, naturally confines the causes of
quarrel more immediately to the borderers. The bordering States, if
any, will be those who, under the impulse of sudden irritation, and
a quick sense of apparent interest or injury, will be most likely,
by direct violence, to excite war with these nations; and nothing
can so effectually obviate that danger as a national government,
whose wisdom and prudence will not be diminished by the passions
which actuate the parties immediately interested.
But not only fewer just causes of war will be given by the
national government, but it will also be more in their power to
accommodate and settle them amicably. They will be more temperate
and cool, and in that respect, as well as in others, will be more in
capacity to act advisedly than the offending State. The pride of
states, as well as of men, naturally disposes them to justify all
their actions, and opposes their acknowledging, correcting, or
repairing their errors and offenses. The national government, in
such cases, will not be affected by this pride, but will proceed
with moderation and candor to consider and decide on the means most
proper to extricate them from the difficulties which threaten them.
Besides, it is well known that acknowledgments, explanations,
and compensations are often accepted as satisfactory from a strong
united nation, which would be rejected as unsatisfactory if offered
by a State or confederacy of little consideration or power.
In the year 1685, the state of Genoa having offended Louis XIV.,
endeavored to appease him. He demanded that they should send their
Doge, or chief magistrate, accompanied by four of their
senators, to FRANCE, to ask his pardon and receive his terms. They
were obliged to submit to it for the sake of peace. Would he on any
occasion either have demanded or have received the like humiliation
from Spain, or Britain, or any other POWERFUL nation?
PUBLIUS.
FEDERALIST No. 4
The Same Subject Continued
(Concerning Dangers From Foreign Force and Influence)
For the Independent Journal.
JAY
To the People of the State of New York:
MY LAST paper assigned several reasons why the safety of the
people would be best secured by union against the danger it may be
exposed to by JUST causes of war given to other nations; and those
reasons show that such causes would not only be more rarely given,
but would also be more easily accommodated, by a national government
than either by the State governments or the proposed little
confederacies.
But the safety of the people of America against dangers from
FOREIGN force depends not only on their forbearing to give JUST
causes of war to other nations, but also on their placing and
continuing themselves in such a situation as not to INVITE hostility
or insult; for it need not be observed that there are PRETENDED as
well as just causes of war.
It is too true, however disgraceful it may be to human nature,
that nations in general will make war whenever they have a prospect
of getting anything by it; nay, absolute monarchs will often make
war when their nations are to get nothing by it, but for the
purposes and objects merely personal, such as thirst for military
glory, revenge for personal affronts, ambition, or private compacts
to aggrandize or support their particular families or partisans.
These and a variety of other motives, which affect only the mind of
the sovereign, often lead him to engage in wars not sanctified by
justice or the voice and interests of his people. But, independent
of these inducements to war, which are more prevalent in absolute
monarchies, but which well deserve our attention, there are others
which affect nations as often as kings; and some of them will on
examination be found to grow out of our relative situation and
circumstances.
With France and with Britain we are rivals in the fisheries, and
can supply their markets cheaper than they can themselves,
notwithstanding any efforts to prevent it by bounties on their own
or duties on foreign fish.
With them and with most other European nations we are rivals in
navigation and the carrying trade; and we shall deceive ourselves
if we suppose that any of them will rejoice to see it flourish;
for, as our carrying trade cannot increase without in some degree
diminishing theirs, it is more their interest, and will be more
their policy, to restrain than to promote it.
In the trade to China and India, we interfere with more than one
nation, inasmuch as it enables us to partake in advantages which
they had in a manner monopolized, and as we thereby supply ourselves
with commodities which we used to purchase from them.
The extension of our own commerce in our own vessels cannot give
pleasure to any nations who possess territories on or near this
continent, because the cheapness and excellence of our productions,
added to the circumstance of vicinity, and the enterprise and
address of our merchants and navigators, will give us a greater
share in the advantages which those territories afford, than
consists with the wishes or policy of their respective sovereigns.
Spain thinks it convenient to shut the Mississippi against us on
the one side, and Britain excludes us from the Saint Lawrence on the
other; nor will either of them permit the other waters which are
between them and us to become the means of mutual intercourse and
traffic.
From these and such like considerations, which might, if
consistent with prudence, be more amplified and detailed, it is easy
to see that jealousies and uneasinesses may gradually slide into the
minds and cabinets of other nations, and that we are not to expect
that they should regard our advancement in union, in power and
consequence by land and by sea, with an eye of indifference and
composure.
The people of America are aware that inducements to war may
arise out of these circumstances, as well as from others not so
obvious at present, and that whenever such inducements may find fit
time and opportunity for operation, pretenses to color and justify
them will not be wanting. Wisely, therefore, do they consider union
and a good national government as necessary to put and keep them in
SUCH A SITUATION as, instead of INVITING war, will tend to repress
and discourage it. That situation consists in the best possible
state of defense, and necessarily depends on the government, the
arms, and the resources of the country.
As the safety of the whole is the interest of the whole, and
cannot be provided for without government, either one or more or
many, let us inquire whether one good government is not, relative to
the object in question, more competent than any other given number
whatever.
One government can collect and avail itself of the talents and
experience of the ablest men, in whatever part of the Union they may
be found. It can move on uniform principles of policy. It can
harmonize, assimilate, and protect the several parts and members,
and extend the benefit of its foresight and precautions to each. In
the formation of treaties, it will regard the interest of the whole,
and the particular interests of the parts as connected with that of
the whole. It can apply the resources and power of the whole to the
defense of any particular part, and that more easily and
expeditiously than State governments or separate confederacies can
possibly do, for want of concert and unity of system. It can place
the militia under one plan of discipline, and, by putting their
officers in a proper line of subordination to the Chief Magistrate,
will, as it were, consolidate them into one corps, and thereby
render them more efficient than if divided into thirteen or into
three or four distinct independent companies.
What would the militia of Britain be if the English militia
obeyed the government of England, if the Scotch militia obeyed the
government of Scotland, and if the Welsh militia obeyed the
government of Wales? Suppose an invasion; would those three
governments (if they agreed at all) be able, with all their
respective forces, to operate against the enemy so effectually as
the single government of Great Britain would?
We have heard much of the fleets of Britain, and the time may
come, if we are wise, when the fleets of America may engage
attention. But if one national government, had not so regulated the
navigation of Britain as to make it a nursery for seamen--if one
national government had not called forth all the national means and
materials for forming fleets, their prowess and their thunder would
never have been celebrated. Let England have its navigation and
fleet--let Scotland have its navigation and fleet--let Wales have its
navigation and fleet--let Ireland have its navigation and fleet--let
those four of the constituent parts of the British empire be be
under four independent governments, and it is easy to perceive how
soon they would each dwindle into comparative insignificance.
Apply these facts to our own case. Leave America divided into
thirteen or, if you please, into three or four independent
governments--what armies could they raise and pay--what fleets could
they ever hope to have? If one was attacked, would the others fly
to its succor, and spend their blood and money in its defense?
Would there be no danger of their being flattered into neutrality
by its specious promises, or seduced by a too great fondness for
peace to decline hazarding their tranquillity and present safety for
the sake of neighbors, of whom perhaps they have been jealous, and
whose importance they are content to see diminished? Although such
conduct would not be wise, it would, nevertheless, be natural. The
history of the states of Greece, and of other countries, abounds
with such instances, and it is not improbable that what has so often
happened would, under similar circumstances, happen again.
But admit that they might be willing to help the invaded State
or confederacy. How, and when, and in what proportion shall aids of
men and money be afforded? Who shall command the allied armies, and
from which of them shall he receive his orders? Who shall settle
the terms of peace, and in case of disputes what umpire shall decide
between them and compel acquiescence? Various difficulties and
inconveniences would be inseparable from such a situation; whereas
one government, watching over the general and common interests, and
combining and directing the powers and resources of the whole, would
be free from all these embarrassments, and conduce far more to the
safety of the people.
But whatever may be our situation, whether firmly united under
one national government, or split into a number of confederacies,
certain it is, that foreign nations will know and view it exactly as
it is; and they will act toward us accordingly. If they see that
our national government is efficient and well administered, our
trade prudently regulated, our militia properly organized and
disciplined, our resources and finances discreetly managed, our
credit re-established, our people free, contented, and united, they
will be much more disposed to cultivate our friendship than provoke
our resentment. If, on the other hand, they find us either
destitute of an effectual government (each State doing right or
wrong, as to its rulers may seem convenient), or split into three or
four independent and probably discordant republics or confederacies,
one inclining to Britain, another to France, and a third to Spain,
and perhaps played off against each other by the three, what a poor,
pitiful figure will America make in their eyes! How liable would
she become not only to their contempt but to their outrage, and how
soon would dear-bought experience proclaim that when a people or
family so divide, it never fails to be against themselves.
PUBLIUS.
FEDERALIST No. 5
The Same Subject Continued
(Concerning Dangers From Foreign Force and Influence)
For the Independent Journal.
JAY
To the People of the State of New York:
QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch
Parliament, makes some observations on the importance of the UNION
then forming between England and Scotland, which merit our attention.
I shall present the public with one or two extracts from it: ``An
entire and perfect union will be the solid foundation of lasting
peace: It will secure your religion, liberty, and property; remove
the animosities amongst yourselves, and the jealousies and
differences betwixt our two kingdoms. It must increase your
strength, riches, and trade; and by this union the whole island,
being joined in affection and free from all apprehensions of
different interest, will be ENABLED TO RESIST ALL ITS ENEMIES.''
``We most earnestly recommend to you calmness and unanimity in this
great and weighty affair, that the union may be brought to a happy
conclusion, being the only EFFECTUAL way to secure our present and
future happiness, and disappoint the designs of our and your
enemies, who will doubtless, on this occasion, USE THEIR UTMOST
ENDEAVORS TO PREVENT OR DELAY THIS UNION.''
It was remarked in the preceding paper, that weakness and
divisions at home would invite dangers from abroad; and that
nothing would tend more to secure us from them than union, strength,
and good government within ourselves. This subject is copious and
cannot easily be exhausted.
The history of Great Britain is the one with which we are in
general the best acquainted, and it gives us many useful lessons.
We may profit by their experience without paying the price which it
cost them. Although it seems obvious to common sense that the
people of such an island should be but one nation, yet we find that
they were for ages divided into three, and that those three were
almost constantly embroiled in quarrels and wars with one another.
Notwithstanding their true interest with respect to the continental
nations was really the same, yet by the arts and policy and
practices of those nations, their mutual jealousies were perpetually
kept inflamed, and for a long series of years they were far more
inconvenient and troublesome than they were useful and assisting to
each other.
Should the people of America divide themselves into three or
four nations, would not the same thing happen? Would not similar
jealousies arise, and be in like manner cherished? Instead of their
being ``joined in affection'' and free from all apprehension of
different ``interests,'' envy and jealousy would soon extinguish
confidence and affection, and the partial interests of each
confederacy, instead of the general interests of all America, would
be the only objects of their policy and pursuits. Hence, like most
other BORDERING nations, they would always be either involved in
disputes and war, or live in the constant apprehension of them.
The most sanguine advocates for three or four confederacies
cannot reasonably suppose that they would long remain exactly on an
equal footing in point of strength, even if it was possible to form
them so at first; but, admitting that to be practicable, yet what
human contrivance can secure the continuance of such equality?
Independent of those local circumstances which tend to beget and
increase power in one part and to impede its progress in another, we
must advert to the effects of that superior policy and good
management which would probably distinguish the government of one
above the rest, and by which their relative equality in strength and
consideration would be destroyed. For it cannot be presumed that
the same degree of sound policy, prudence, and foresight would
uniformly be observed by each of these confederacies for a long
succession of years.
Whenever, and from whatever causes, it might happen, and happen
it would, that any one of these nations or confederacies should rise
on the scale of political importance much above the degree of her
neighbors, that moment would those neighbors behold her with envy
and with fear. Both those passions would lead them to countenance,
if not to promote, whatever might promise to diminish her
importance; and would also restrain them from measures calculated
to advance or even to secure her prosperity. Much time would not be
necessary to enable her to discern these unfriendly dispositions.
She would soon begin, not only to lose confidence in her neighbors,
but also to feel a disposition equally unfavorable to them.
Distrust naturally creates distrust, and by nothing is good-will
and kind conduct more speedily changed than by invidious jealousies
and uncandid imputations, whether expressed or implied.
The North is generally the region of strength, and many local
circumstances render it probable that the most Northern of the
proposed confederacies would, at a period not very distant, be
unquestionably more formidable than any of the others. No sooner
would this become evident than the NORTHERN HIVE would excite the
same ideas and sensations in the more southern parts of America
which it formerly did in the southern parts of Europe. Nor does it
appear to be a rash conjecture that its young swarms might often be
tempted to gather honey in the more blooming fields and milder air
of their luxurious and more delicate neighbors.
They who well consider the history of similar divisions and
confederacies will find abundant reason to apprehend that those in
contemplation would in no other sense be neighbors than as they
would be borderers; that they would neither love nor trust one
another, but on the contrary would be a prey to discord, jealousy,
and mutual injuries; in short, that they would place us exactly in
the situations in which some nations doubtless wish to see us, viz.,
FORMIDABLE ONLY TO EACH OTHER.
From these considerations it appears that those gentlemen are
greatly mistaken who suppose that alliances offensive and defensive
might be formed between these confederacies, and would produce that
combination and union of wills of arms and of resources, which would
be necessary to put and keep them in a formidable state of defense
against foreign enemies.
When did the independent states, into which Britain and Spain
were formerly divided, combine in such alliance, or unite their
forces against a foreign enemy? The proposed confederacies will be
DISTINCT NATIONS. Each of them would have its commerce with
foreigners to regulate by distinct treaties; and as their
productions and commodities are different and proper for different
markets, so would those treaties be essentially different.
Different commercial concerns must create different interests, and
of course different degrees of political attachment to and
connection with different foreign nations. Hence it might and
probably would happen that the foreign nation with whom the SOUTHERN
confederacy might be at war would be the one with whom the NORTHERN
confederacy would be the most desirous of preserving peace and
friendship. An alliance so contrary to their immediate interest
would not therefore be easy to form, nor, if formed, would it be
observed and fulfilled with perfect good faith.
Nay, it is far more probable that in America, as in Europe,
neighboring nations, acting under the impulse of opposite interests
and unfriendly passions, would frequently be found taking different
sides. Considering our distance from Europe, it would be more
natural for these confederacies to apprehend danger from one another
than from distant nations, and therefore that each of them should be
more desirous to guard against the others by the aid of foreign
alliances, than to guard against foreign dangers by alliances
between themselves. And here let us not forget how much more easy
it is to receive foreign fleets into our ports, and foreign armies
into our country, than it is to persuade or compel them to depart.
How many conquests did the Romans and others make in the characters
of allies, and what innovations did they under the same character
introduce into the governments of those whom they pretended to
protect.
Let candid men judge, then, whether the division of America into
any given number of independent sovereignties would tend to secure
us against the hostilities and improper interference of foreign
nations.
PUBLIUS.
FEDERALIST No. 6
Concerning Dangers from Dissensions Between the States
For the Independent Journal.
HAMILTON
To the People of the State of New York:
THE three last numbers of this paper have been dedicated to an
enumeration of the dangers to which we should be exposed, in a state
of disunion, from the arms and arts of foreign nations. I shall now
proceed to delineate dangers of a different and, perhaps, still more
alarming kind--those which will in all probability flow from
dissensions between the States themselves, and from domestic
factions and convulsions. These have been already in some instances
slightly anticipated; but they deserve a more particular and more
full investigation.
A man must be far gone in Utopian speculations who can seriously
doubt that, if these States should either be wholly disunited, or
only united in partial confederacies, the subdivisions into which
they might be thrown would have frequent and violent contests with
each other. To presume a want of motives for such contests as an
argument against their existence, would be to forget that men are
ambitious, vindictive, and rapacious. To look for a continuation of
harmony between a number of independent, unconnected sovereignties
in the same neighborhood, would be to disregard the uniform course
of human events, and to set at defiance the accumulated experience
of ages.
The causes of hostility among nations are innumerable. There
are some which have a general and almost constant operation upon the
collective bodies of society. Of this description are the love of
power or the desire of pre-eminence and dominion--the jealousy of
power, or the desire of equality and safety. There are others which
have a more circumscribed though an equally operative influence
within their spheres. Such are the rivalships and competitions of
commerce between commercial nations. And there are others, not less
numerous than either of the former, which take their origin entirely
in private passions; in the attachments, enmities, interests,
hopes, and fears of leading individuals in the communities of which
they are members. Men of this class, whether the favorites of a
king or of a people, have in too many instances abused the
confidence they possessed; and assuming the pretext of some public
motive, have not scrupled to sacrifice the national tranquillity to
personal advantage or personal gratification.
The celebrated Pericles, in compliance with the resentment of a
prostitute,1 at the expense of much of the blood and treasure of
his countrymen, attacked, vanquished, and destroyed the city of the
SAMNIANS. The same man, stimulated by private pique against the
MEGARENSIANS,2 another nation of Greece, or to avoid a
prosecution with which he was threatened as an accomplice of a
supposed theft of the statuary Phidias,3 or to get rid of the
accusations prepared to be brought against him for dissipating the
funds of the state in the purchase of popularity,4 or from a
combination of all these causes, was the primitive author of that
famous and fatal war, distinguished in the Grecian annals by the
name of the PELOPONNESIAN war; which, after various vicissitudes,
intermissions, and renewals, terminated in the ruin of the Athenian
commonwealth.
The ambitious cardinal, who was prime minister to Henry VIII.,
permitting his vanity to aspire to the triple crown,5
entertained hopes of succeeding in the acquisition of that splendid
prize by the influence of the Emperor Charles V. To secure the
favor and interest of this enterprising and powerful monarch, he
precipitated England into a war with France, contrary to the
plainest dictates of policy, and at the hazard of the safety and
independence, as well of the kingdom over which he presided by his
counsels, as of Europe in general. For if there ever was a
sovereign who bid fair to realize the project of universal monarchy,
it was the Emperor Charles V., of whose intrigues Wolsey was at once
the instrument and the dupe.
The influence which the bigotry of one female,6 the
petulance of another,7 and the cabals of a third,8 had in
the contemporary policy, ferments, and pacifications, of a
considerable part of Europe, are topics that have been too often
descanted upon not to be generally known.
To multiply examples of the agency of personal considerations in
the production of great national events, either foreign or domestic,
according to their direction, would be an unnecessary waste of time.
Those who have but a superficial acquaintance with the sources from
which they are to be drawn, will themselves recollect a variety of
instances; and those who have a tolerable knowledge of human nature
will not stand in need of such lights to form their opinion either
of the reality or extent of that agency. Perhaps, however, a
reference, tending to illustrate the general principle, may with
propriety be made to a case which has lately happened among
ourselves. If Shays had not been a DESPERATE DEBTOR, it is much to
be doubted whether Massachusetts would have been plunged into a
civil war.
But notwithstanding the concurring testimony of experience, in
this particular, there are still to be found visionary or designing
men, who stand ready to advocate the paradox of perpetual peace
between the States, though dismembered and alienated from each other.
The genius of republics (say they) is pacific; the spirit of
commerce has a tendency to soften the manners of men, and to
extinguish those inflammable humors which have so often kindled into
wars. Commercial republics, like ours, will never be disposed to
waste themselves in ruinous contentions with each other. They will
be governed by mutual interest, and will cultivate a spirit of
mutual amity and concord.
Is it not (we may ask these projectors in politics) the true
interest of all nations to cultivate the same benevolent and
philosophic spirit? If this be their true interest, have they in
fact pursued it? Has it not, on the contrary, invariably been found
that momentary passions, and immediate interest, have a more active
and imperious control over human conduct than general or remote
considerations of policy, utility or justice? Have republics in
practice been less addicted to war than monarchies? Are not the
former administered by MEN as well as the latter? Are there not
aversions, predilections, rivalships, and desires of unjust
acquisitions, that affect nations as well as kings? Are not popular
assemblies frequently subject to the impulses of rage, resentment,
jealousy, avarice, and of other irregular and violent propensities?
Is it not well known that their determinations are often governed
by a few individuals in whom they place confidence, and are, of
course, liable to be tinctured by the passions and views of those
individuals? Has commerce hitherto done anything more than change
the objects of war? Is not the love of wealth as domineering and
enterprising a passion as that of power or glory? Have there not
been as many wars founded upon commercial motives since that has
become the prevailing system of nations, as were before occasioned
by the cupidity of territory or dominion? Has not the spirit of
commerce, in many instances, administered new incentives to the
appetite, both for the one and for the other? Let experience, the
least fallible guide of human opinions, be appealed to for an answer
to these inquiries.
Sparta, Athens, Rome, and Carthage were all republics; two of
them, Athens and Carthage, of the commercial kind. Yet were they as
often engaged in wars, offensive and defensive, as the neighboring
monarchies of the same times. Sparta was little better than a
wellregulated camp; and Rome was never sated of carnage and
conquest.
Carthage, though a commercial republic, was the aggressor in the
very war that ended in her destruction. Hannibal had carried her
arms into the heart of Italy and to the gates of Rome, before
Scipio, in turn, gave him an overthrow in the territories of
Carthage, and made a conquest of the commonwealth.
Venice, in later times, figured more than once in wars of
ambition, till, becoming an object to the other Italian states, Pope
Julius II. found means to accomplish that formidable league,9
which gave a deadly blow to the power and pride of this haughty
republic.
The provinces of Holland, till they were overwhelmed in debts
and taxes, took a leading and conspicuous part in the wars of Europe.
They had furious contests with England for the dominion of the
sea, and were among the most persevering and most implacable of the
opponents of Louis XIV.
In the government of Britain the representatives of the people
compose one branch of the national legislature. Commerce has been
for ages the predominant pursuit of that country. Few nations,
nevertheless, have been more frequently engaged in war; and the
wars in which that kingdom has been engaged have, in numerous
instances, proceeded from the people.
There have been, if I may so express it, almost as many popular
as royal wars. The cries of the nation and the importunities of
their representatives have, upon various occasions, dragged their
monarchs into war, or continued them in it, contrary to their
inclinations, and sometimes contrary to the real interests of the
State. In that memorable struggle for superiority between the rival
houses of AUSTRIA and BOURBON, which so long kept Europe in a flame,
it is well known that the antipathies of the English against the
French, seconding the ambition, or rather the avarice, of a favorite
leader,10 protracted the war beyond the limits marked out by
sound policy, and for a considerable time in opposition to the views
of the court.
The wars of these two last-mentioned nations have in a great
measure grown out of commercial considerations,--the desire of
supplanting and the fear of being supplanted, either in particular
branches of traffic or in the general advantages of trade and
navigation.
From this summary of what has taken place in other countries,
whose situations have borne the nearest resemblance to our own, what
reason can we have to confide in those reveries which would seduce
us into an expectation of peace and cordiality between the members
of the present confederacy, in a state of separation? Have we not
already seen enough of the fallacy and extravagance of those idle
theories which have amused us with promises of an exemption from the
imperfections, weaknesses and evils incident to society in every
shape? Is it not time to awake from the deceitful dream of a golden
age, and to adopt as a practical maxim for the direction of our
political conduct that we, as well as the other inhabitants of the
globe, are yet remote from the happy empire of perfect wisdom and
perfect virtue?
Let the point of extreme depression to which our national
dignity and credit have sunk, let the inconveniences felt everywhere
from a lax and ill administration of government, let the revolt of a
part of the State of North Carolina, the late menacing disturbances
in Pennsylvania, and the actual insurrections and rebellions in
Massachusetts, declare--!
So far is the general sense of mankind from corresponding with
the tenets of those who endeavor to lull asleep our apprehensions of
discord and hostility between the States, in the event of disunion,
that it has from long observation of the progress of society become
a sort of axiom in politics, that vicinity or nearness of situation,
constitutes nations natural enemies. An intelligent writer
expresses himself on this subject to this effect: ``NEIGHBORING
NATIONS (says he) are naturally enemies of each other unless their
common weakness forces them to league in a CONFEDERATE REPUBLIC, and
their constitution prevents the differences that neighborhood
occasions, extinguishing that secret jealousy which disposes all
states to aggrandize themselves at the expense of their
neighbors.''11 This passage, at the same time, points out the
EVIL and suggests the REMEDY.
PUBLIUS.
1 Aspasia, vide ``Plutarch's Life of Pericles.''
2 Ibid.
3 Ibid.
4 ] Ibid. Phidias was supposed to have stolen some public
gold, with the connivance of Pericles, for the embellishment of the
statue of Minerva.
5 P Worn by the popes.
6 Madame de Maintenon.
7 Duchess of Marlborough.
8 Madame de Pompadour.
9 The League of Cambray, comprehending the Emperor, the King of
France, the King of Aragon, and most of the Italian princes and
states.
10 The Duke of Marlborough.
11 Vide ``Principes des Negociations'' par 1'Abbe de Mably.
FEDERALIST. No. 7
The Same Subject Continued
(Concerning Dangers from Dissensions Between the States)
For the Independent Journal.
HAMILTON
To the People of the State of New York:
IT IS sometimes asked, with an air of seeming triumph, what
inducements could the States have, if disunited, to make war upon
each other? It would be a full answer to this question to
say--precisely the same inducements which have, at different times,
deluged in blood all the nations in the world. But, unfortunately
for us, the question admits of a more particular answer. There are
causes of differences within our immediate contemplation, of the
tendency of which, even under the restraints of a federal
constitution, we have had sufficient experience to enable us to form
a judgment of what might be expected if those restraints were
removed.
Territorial disputes have at all times been found one of the
most fertile sources of hostility among nations. Perhaps the
greatest proportion of wars that have desolated the earth have
sprung from this origin. This cause would exist among us in full
force. We have a vast tract of unsettled territory within the
boundaries of the United States. There still are discordant and
undecided claims between several of them, and the dissolution of the
Union would lay a foundation for similar claims between them all.
It is well known that they have heretofore had serious and animated
discussion concerning the rights to the lands which were ungranted
at the time of the Revolution, and which usually went under the name
of crown lands. The States within the limits of whose colonial
governments they were comprised have claimed them as their property,
the others have contended that the rights of the crown in this
article devolved upon the Union; especially as to all that part of
the Western territory which, either by actual possession, or through
the submission of the Indian proprietors, was subjected to the
jurisdiction of the king of Great Britain, till it was relinquished
in the treaty of peace. This, it has been said, was at all events
an acquisition to the Confederacy by compact with a foreign power.
It has been the prudent policy of Congress to appease this
controversy, by prevailing upon the States to make cessions to the
United States for the benefit of the whole. This has been so far
accomplished as, under a continuation of the Union, to afford a
decided prospect of an amicable termination of the dispute. A
dismemberment of the Confederacy, however, would revive this
dispute, and would create others on the same subject. At present, a
large part of the vacant Western territory is, by cession at least,
if not by any anterior right, the common property of the Union. If
that were at an end, the States which made the cession, on a
principle of federal compromise, would be apt when the motive of the
grant had ceased, to reclaim the lands as a reversion. The other
States would no doubt insist on a proportion, by right of
representation. Their argument would be, that a grant, once made,
could not be revoked; and that the justice of participating in
territory acquired or secured by the joint efforts of the
Confederacy, remained undiminished. If, contrary to probability, it
should be admitted by all the States, that each had a right to a
share of this common stock, there would still be a difficulty to be
surmounted, as to a proper rule of apportionment. Different
principles would be set up by different States for this purpose;
and as they would affect the opposite interests of the parties,
they might not easily be susceptible of a pacific adjustment.
In the wide field of Western territory, therefore, we perceive
an ample theatre for hostile pretensions, without any umpire or
common judge to interpose between the contending parties. To reason
from the past to the future, we shall have good ground to apprehend,
that the sword would sometimes be appealed to as the arbiter of
their differences. The circumstances of the dispute between
Connecticut and Pennsylvania, respecting the land at Wyoming,
admonish us not to be sanguine in expecting an easy accommodation of
such differences. The articles of confederation obliged the parties
to submit the matter to the decision of a federal court. The
submission was made, and the court decided in favor of Pennsylvania.
But Connecticut gave strong indications of dissatisfaction with
that determination; nor did she appear to be entirely resigned to
it, till, by negotiation and management, something like an
equivalent was found for the loss she supposed herself to have
sustained. Nothing here said is intended to convey the slightest
censure on the conduct of that State. She no doubt sincerely
believed herself to have been injured by the decision; and States,
like individuals, acquiesce with great reluctance in determinations
to their disadvantage.
Those who had an opportunity of seeing the inside of the
transactions which attended the progress of the controversy between
this State and the district of Vermont, can vouch the opposition we
experienced, as well from States not interested as from those which
were interested in the claim; and can attest the danger to which
the peace of the Confederacy might have been exposed, had this State
attempted to assert its rights by force. Two motives preponderated
in that opposition: one, a jealousy entertained of our future
power; and the other, the interest of certain individuals of
influence in the neighboring States, who had obtained grants of
lands under the actual government of that district. Even the States
which brought forward claims, in contradiction to ours, seemed more
solicitous to dismember this State, than to establish their own
pretensions. These were New Hampshire, Massachusetts, and
Connecticut. New Jersey and Rhode Island, upon all occasions,
discovered a warm zeal for the independence of Vermont; and
Maryland, till alarmed by the appearance of a connection between
Canada and that State, entered deeply into the same views. These
being small States, saw with an unfriendly eye the perspective of
our growing greatness. In a review of these transactions we may
trace some of the causes which would be likely to embroil the States
with each other, if it should be their unpropitious destiny to
become disunited.
The competitions of commerce would be another fruitful source of
contention. The States less favorably circumstanced would be
desirous of escaping from the disadvantages of local situation, and
of sharing in the advantages of their more fortunate neighbors.
Each State, or separate confederacy, would pursue a system of
commercial policy peculiar to itself. This would occasion
distinctions, preferences, and exclusions, which would beget
discontent. The habits of intercourse, on the basis of equal
privileges, to which we have been accustomed since the earliest
settlement of the country, would give a keener edge to those causes
of discontent than they would naturally have independent of this
circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE
THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF INDEPENDENT
SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The spirit of
enterprise, which characterizes the commercial part of America, has
left no occasion of displaying itself unimproved. It is not at all
probable that this unbridled spirit would pay much respect to those
regulations of trade by which particular States might endeavor to
secure exclusive benefits to their own citizens. The infractions of
these regulations, on one side, the efforts to prevent and repel
them, on the other, would naturally lead to outrages, and these to
reprisals and wars.
The opportunities which some States would have of rendering
others tributary to them by commercial regulations would be
impatiently submitted to by the tributary States. The relative
situation of New York, Connecticut, and New Jersey would afford an
example of this kind. New York, from the necessities of revenue,
must lay duties on her importations. A great part of these duties
must be paid by the inhabitants of the two other States in the
capacity of consumers of what we import. New York would neither be
willing nor able to forego this advantage. Her citizens would not
consent that a duty paid by them should be remitted in favor of the
citizens of her neighbors; nor would it be practicable, if there
were not this impediment in the way, to distinguish the customers in
our own markets. Would Connecticut and New Jersey long submit to be
taxed by New York for her exclusive benefit? Should we be long
permitted to remain in the quiet and undisturbed enjoyment of a
metropolis, from the possession of which we derived an advantage so
odious to our neighbors, and, in their opinion, so oppressive?
Should we be able to preserve it against the incumbent weight of
Connecticut on the one side, and the co-operating pressure of New
Jersey on the other? These are questions that temerity alone will
answer in the affirmative.
The public debt of the Union would be a further cause of
collision between the separate States or confederacies. The
apportionment, in the first instance, and the progressive
extinguishment afterward, would be alike productive of ill-humor and
animosity. How would it be possible to agree upon a rule of
apportionment satisfactory to all? There is scarcely any that can
be proposed which is entirely free from real objections. These, as
usual, would be exaggerated by the adverse interest of the parties.
There are even dissimilar views among the States as to the general
principle of discharging the public debt. Some of them, either less
impressed with the importance of national credit, or because their
citizens have little, if any, immediate interest in the question,
feel an indifference, if not a repugnance, to the payment of the
domestic debt at any rate. These would be inclined to magnify the
difficulties of a distribution. Others of them, a numerous body of
whose citizens are creditors to the public beyond proportion of the
State in the total amount of the national debt, would be strenuous
for some equitable and effective provision. The procrastinations of
the former would excite the resentments of the latter. The
settlement of a rule would, in the meantime, be postponed by real
differences of opinion and affected delays. The citizens of the
States interested would clamour; foreign powers would urge for the
satisfaction of their just demands, and the peace of the States
would be hazarded to the double contingency of external invasion and
internal contention.
Suppose the difficulties of agreeing upon a rule surmounted, and
the apportionment made. Still there is great room to suppose that
the rule agreed upon would, upon experiment, be found to bear harder
upon some States than upon others. Those which were sufferers by it
would naturally seek for a mitigation of the burden. The others
would as naturally be disinclined to a revision, which was likely to
end in an increase of their own incumbrances. Their refusal would
be too plausible a pretext to the complaining States to withhold
their contributions, not to be embraced with avidity; and the
non-compliance of these States with their engagements would be a
ground of bitter discussion and altercation. If even the rule
adopted should in practice justify the equality of its principle,
still delinquencies in payments on the part of some of the States
would result from a diversity of other causes--the real deficiency of
resources; the mismanagement of their finances; accidental
disorders in the management of the government; and, in addition to
the rest, the reluctance with which men commonly part with money for
purposes that have outlived the exigencies which produced them, and
interfere with the supply of immediate wants. Delinquencies, from
whatever causes, would be productive of complaints, recriminations,
and quarrels. There is, perhaps, nothing more likely to disturb the
tranquillity of nations than their being bound to mutual
contributions for any common object that does not yield an equal and
coincident benefit. For it is an observation, as true as it is
trite, that there is nothing men differ so readily about as the
payment of money.
Laws in violation of private contracts, as they amount to
aggressions on the rights of those States whose citizens are injured
by them, may be considered as another probable source of hostility.
We are not authorized to expect that a more liberal or more
equitable spirit would preside over the legislations of the
individual States hereafter, if unrestrained by any additional
checks, than we have heretofore seen in too many instances
disgracing their several codes. We have observed the disposition to
retaliation excited in Connecticut in consequence of the enormities
perpetrated by the Legislature of Rhode Island; and we reasonably
infer that, in similar cases, under other circumstances, a war, not
of PARCHMENT, but of the sword, would chastise such atrocious
breaches of moral obligation and social justice.
The probability of incompatible alliances between the different
States or confederacies and different foreign nations, and the
effects of this situation upon the peace of the whole, have been
sufficiently unfolded in some preceding papers. From the view they
have exhibited of this part of the subject, this conclusion is to be
drawn, that America, if not connected at all, or only by the feeble
tie of a simple league, offensive and defensive, would, by the
operation of such jarring alliances, be gradually entangled in all
the pernicious labyrinths of European politics and wars; and by the
destructive contentions of the parts into which she was divided,
would be likely to become a prey to the artifices and machinations
of powers equally the enemies of them all. Divide et
impera1 must be the motto of every nation that either hates or
fears us.2 PUBLIUS.
1 Divide and command.
2 In order that the whole subject of these papers may as soon as
possible be laid before the public, it is proposed to publish them
four times a week--on Tuesday in the New York Packet and on
Thursday in the Daily Advertiser.
FEDERALIST No. 8
The Consequences of Hostilities Between the States
From the New York Packet.
Tuesday, November 20, 1787.
HAMILTON
To the People of the State of New York:
ASSUMING it therefore as an established truth that the several
States, in case of disunion, or such combinations of them as might
happen to be formed out of the wreck of the general Confederacy,
would be subject to those vicissitudes of peace and war, of
friendship and enmity, with each other, which have fallen to the lot
of all neighboring nations not united under one government, let us
enter into a concise detail of some of the consequences that would
attend such a situation.
War between the States, in the first period of their separate
existence, would be accompanied with much greater distresses than it
commonly is in those countries where regular military establishments
have long obtained. The disciplined armies always kept on foot on
the continent of Europe, though they bear a malignant aspect to
liberty and economy, have, notwithstanding, been productive of the
signal advantage of rendering sudden conquests impracticable, and of
preventing that rapid desolation which used to mark the progress of
war prior to their introduction. The art of fortification has
contributed to the same ends. The nations of Europe are encircled
with chains of fortified places, which mutually obstruct invasion.
Campaigns are wasted in reducing two or three frontier garrisons,
to gain admittance into an enemy's country. Similar impediments
occur at every step, to exhaust the strength and delay the progress
of an invader. Formerly, an invading army would penetrate into the
heart of a neighboring country almost as soon as intelligence of its
approach could be received; but now a comparatively small force of
disciplined troops, acting on the defensive, with the aid of posts,
is able to impede, and finally to frustrate, the enterprises of one
much more considerable. The history of war, in that quarter of the
globe, is no longer a history of nations subdued and empires
overturned, but of towns taken and retaken; of battles that decide
nothing; of retreats more beneficial than victories; of much
effort and little acquisition.
In this country the scene would be altogether reversed. The
jealousy of military establishments would postpone them as long as
possible. The want of fortifications, leaving the frontiers of one
state open to another, would facilitate inroads. The populous
States would, with little difficulty, overrun their less populous
neighbors. Conquests would be as easy to be made as difficult to be
retained. War, therefore, would be desultory and predatory.
PLUNDER and devastation ever march in the train of irregulars. The
calamities of individuals would make the principal figure in the
events which would characterize our military exploits.
This picture is not too highly wrought; though, I confess, it
would not long remain a just one. Safety from external danger is
the most powerful director of national conduct. Even the ardent
love of liberty will, after a time, give way to its dictates. The
violent destruction of life and property incident to war, the
continual effort and alarm attendant on a state of continual danger,
will compel nations the most attached to liberty to resort for
repose and security to institutions which have a tendency to destroy
their civil and political rights. To be more safe, they at length
become willing to run the risk of being less free.
The institutions chiefly alluded to are STANDING ARMIES and the
correspondent appendages of military establishments. Standing
armies, it is said, are not provided against in the new
Constitution; and it is therefore inferred that they may exist
under it.1 Their existence, however, from the very terms of the
proposition, is, at most, problematical and uncertain. But standing
armies, it may be replied, must inevitably result from a dissolution
of the Confederacy. Frequent war and constant apprehension, which
require a state of as constant preparation, will infallibly produce
them. The weaker States or confederacies would first have recourse
to them, to put themselves upon an equality with their more potent
neighbors. They would endeavor to supply the inferiority of
population and resources by a more regular and effective system of
defense, by disciplined troops, and by fortifications. They would,
at the same time, be necessitated to strengthen the executive arm of
government, in doing which their constitutions would acquire a
progressive direction toward monarchy. It is of the nature of war
to increase the executive at the expense of the legislative
authority.
The expedients which have been mentioned would soon give the
States or confederacies that made use of them a superiority over
their neighbors. Small states, or states of less natural strength,
under vigorous governments, and with the assistance of disciplined
armies, have often triumphed over large states, or states of greater
natural strength, which have been destitute of these advantages.
Neither the pride nor the safety of the more important States or
confederacies would permit them long to submit to this mortifying
and adventitious superiority. They would quickly resort to means
similar to those by which it had been effected, to reinstate
themselves in their lost pre-eminence. Thus, we should, in a little
time, see established in every part of this country the same engines
of despotism which have been the scourge of the Old World. This, at
least, would be the natural course of things; and our reasonings
will be the more likely to be just, in proportion as they are
accommodated to this standard.
These are not vague inferences drawn from supposed or
speculative defects in a Constitution, the whole power of which is
lodged in the hands of a people, or their representatives and
delegates, but they are solid conclusions, drawn from the natural
and necessary progress of human affairs.
It may, perhaps, be asked, by way of objection to this, why did
not standing armies spring up out of the contentions which so often
distracted the ancient republics of Greece? Different answers,
equally satisfactory, may be given to this question. The
industrious habits of the people of the present day, absorbed in the
pursuits of gain, and devoted to the improvements of agriculture and
commerce, are incompatible with the condition of a nation of
soldiers, which was the true condition of the people of those
republics. The means of revenue, which have been so greatly
multiplied by the increase of gold and silver and of the arts of
industry, and the science of finance, which is the offspring of
modern times, concurring with the habits of nations, have produced
an entire revolution in the system of war, and have rendered
disciplined armies, distinct from the body of the citizens, the
inseparable companions of frequent hostility.
There is a wide difference, also, between military
establishments in a country seldom exposed by its situation to
internal invasions, and in one which is often subject to them, and
always apprehensive of them. The rulers of the former can have a
good pretext, if they are even so inclined, to keep on foot armies
so numerous as must of necessity be maintained in the latter. These
armies being, in the first case, rarely, if at all, called into
activity for interior defense, the people are in no danger of being
broken to military subordination. The laws are not accustomed to
relaxations, in favor of military exigencies; the civil state
remains in full vigor, neither corrupted, nor confounded with the
principles or propensities of the other state. The smallness of the
army renders the natural strength of the community an over-match for
it; and the citizens, not habituated to look up to the military
power for protection, or to submit to its oppressions, neither love
nor fear the soldiery; they view them with a spirit of jealous
acquiescence in a necessary evil, and stand ready to resist a power
which they suppose may be exerted to the prejudice of their rights.
The army under such circumstances may usefully aid the magistrate
to suppress a small faction, or an occasional mob, or insurrection;
but it will be unable to enforce encroachments against the united
efforts of the great body of the people.
In a country in the predicament last described, the contrary of
all this happens. The perpetual menacings of danger oblige the
government to be always prepared to repel it; its armies must be
numerous enough for instant defense. The continual necessity for
their services enhances the importance of the soldier, and
proportionably degrades the condition of the citizen. The military
state becomes elevated above the civil. The inhabitants of
territories, often the theatre of war, are unavoidably subjected to
frequent infringements on their rights, which serve to weaken their
sense of those rights; and by degrees the people are brought to
consider the soldiery not only as their protectors, but as their
superiors. The transition from this disposition to that of
considering them masters, is neither remote nor difficult; but it
is very difficult to prevail upon a people under such impressions,
to make a bold or effectual resistance to usurpations supported by
the military power.
The kingdom of Great Britain falls within the first description.
An insular situation, and a powerful marine, guarding it in a great
measure against the possibility of foreign invasion, supersede the
necessity of a numerous army within the kingdom. A sufficient force
to make head against a sudden descent, till the militia could have
time to rally and embody, is all that has been deemed requisite. No
motive of national policy has demanded, nor would public opinion
have tolerated, a larger number of troops upon its domestic
establishment. There has been, for a long time past, little room
for the operation of the other causes, which have been enumerated as
the consequences of internal war. This peculiar felicity of
situation has, in a great degree, contributed to preserve the
liberty which that country to this day enjoys, in spite of the
prevalent venality and corruption. If, on the contrary, Britain had
been situated on the continent, and had been compelled, as she would
have been, by that situation, to make her military establishments at
home coextensive with those of the other great powers of Europe,
she, like them, would in all probability be, at this day, a victim
to the absolute power of a single man. 'T is possible, though not
easy, that the people of that island may be enslaved from other
causes; but it cannot be by the prowess of an army so
inconsiderable as that which has been usually kept up within the
kingdom.
If we are wise enough to preserve the Union we may for ages
enjoy an advantage similar to that of an insulated situation.
Europe is at a great distance from us. Her colonies in our
vicinity will be likely to continue too much disproportioned in
strength to be able to give us any dangerous annoyance. Extensive
military establishments cannot, in this position, be necessary to
our security. But if we should be disunited, and the integral parts
should either remain separated, or, which is most probable, should
be thrown together into two or three confederacies, we should be, in
a short course of time, in the predicament of the continental powers
of Europe --our liberties would be a prey to the means of defending
ourselves against the ambition and jealousy of each other.
This is an idea not superficial or futile, but solid and weighty.
It deserves the most serious and mature consideration of every
prudent and honest man of whatever party. If such men will make a
firm and solemn pause, and meditate dispassionately on the
importance of this interesting idea; if they will contemplate it in
all its attitudes, and trace it to all its consequences, they will
not hesitate to part with trivial objections to a Constitution, the
rejection of which would in all probability put a final period to
the Union. The airy phantoms that flit before the distempered
imaginations of some of its adversaries would quickly give place to
the more substantial forms of dangers, real, certain, and formidable.
PUBLIUS.
1 This objection will be fully examined in its proper place, and
it will be shown that the only natural precaution which could have
been taken on this subject has been taken; and a much better one
than is to be found in any constitution that has been heretofore
framed in America, most of which contain no guard at all on this
subject.
FEDERALIST No. 9
The Union as a Safeguard Against Domestic Faction and Insurrection
For the Independent Journal.
HAMILTON
To the People of the State of New York:
A FIRM Union will be of the utmost moment to the peace and
liberty of the States, as a barrier against domestic faction and
insurrection. It is impossible to read the history of the petty
republics of Greece and Italy without feeling sensations of horror
and disgust at the distractions with which they were continually
agitated, and at the rapid succession of revolutions by which they
were kept in a state of perpetual vibration between the extremes of
tyranny and anarchy. If they exhibit occasional calms, these only
serve as short-lived contrast to the furious storms that are to
succeed. If now and then intervals of felicity open to view, we
behold them with a mixture of regret, arising from the reflection
that the pleasing scenes before us are soon to be overwhelmed by the
tempestuous waves of sedition and party rage. If momentary rays of
glory break forth from the gloom, while they dazzle us with a
transient and fleeting brilliancy, they at the same time admonish us
to lament that the vices of government should pervert the direction
and tarnish the lustre of those bright talents and exalted
endowments for which the favored soils that produced them have been
so justly celebrated.
From the disorders that disfigure the annals of those republics
the advocates of despotism have drawn arguments, not only against
the forms of republican government, but against the very principles
of civil liberty. They have decried all free government as
inconsistent with the order of society, and have indulged themselves
in malicious exultation over its friends and partisans. Happily for
mankind, stupendous fabrics reared on the basis of liberty, which
have flourished for ages, have, in a few glorious instances, refuted
their gloomy sophisms. And, I trust, America will be the broad and
solid foundation of other edifices, not less magnificent, which will
be equally permanent monuments of their errors.
But it is not to be denied that the portraits they have sketched
of republican government were too just copies of the originals from
which they were taken. If it had been found impracticable to have
devised models of a more perfect structure, the enlightened friends
to liberty would have been obliged to abandon the cause of that
species of government as indefensible. The science of politics,
however, like most other sciences, has received great improvement.
The efficacy of various principles is now well understood, which
were either not known at all, or imperfectly known to the ancients.
The regular distribution of power into distinct departments; the
introduction of legislative balances and checks; the institution of
courts composed of judges holding their offices during good
behavior; the representation of the people in the legislature by
deputies of their own election: these are wholly new discoveries,
or have made their principal progress towards perfection in modern
times. They are means, and powerful means, by which the excellences
of republican government may be retained and its imperfections
lessened or avoided. To this catalogue of circumstances that tend
to the amelioration of popular systems of civil government, I shall
venture, however novel it may appear to some, to add one more, on a
principle which has been made the foundation of an objection to the
new Constitution; I mean the ENLARGEMENT of the ORBIT within which
such systems are to revolve, either in respect to the dimensions of
a single State or to the consolidation of several smaller States
into one great Confederacy. The latter is that which immediately
concerns the object under consideration. It will, however, be of
use to examine the principle in its application to a single State,
which shall be attended to in another place.
The utility of a Confederacy, as well to suppress faction and to
guard the internal tranquillity of States, as to increase their
external force and security, is in reality not a new idea. It has
been practiced upon in different countries and ages, and has
received the sanction of the most approved writers on the subject of
politics. The opponents of the plan proposed have, with great
assiduity, cited and circulated the observations of Montesquieu on
the necessity of a contracted territory for a republican government.
But they seem not to have been apprised of the sentiments of that
great man expressed in another part of his work, nor to have
adverted to the consequences of the principle to which they
subscribe with such ready acquiescence.
When Montesquieu recommends a small extent for republics, the
standards he had in view were of dimensions far short of the limits
of almost every one of these States. Neither Virginia,
Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia
can by any means be compared with the models from which he reasoned
and to which the terms of his description apply. If we therefore
take his ideas on this point as the criterion of truth, we shall be
driven to the alternative either of taking refuge at once in the
arms of monarchy, or of splitting ourselves into an infinity of
little, jealous, clashing, tumultuous commonwealths, the wretched
nurseries of unceasing discord, and the miserable objects of
universal pity or contempt. Some of the writers who have come
forward on the other side of the question seem to have been aware of
the dilemma; and have even been bold enough to hint at the division
of the larger States as a desirable thing. Such an infatuated
policy, such a desperate expedient, might, by the multiplication of
petty offices, answer the views of men who possess not
qualifications to extend their influence beyond the narrow circles
of personal intrigue, but it could never promote the greatness or
happiness of the people of America.
Referring the examination of the principle itself to another
place, as has been already mentioned, it will be sufficient to
remark here that, in the sense of the author who has been most
emphatically quoted upon the occasion, it would only dictate a
reduction of the SIZE of the more considerable MEMBERS of the Union,
but would not militate against their being all comprehended in one
confederate government. And this is the true question, in the
discussion of which we are at present interested.
So far are the suggestions of Montesquieu from standing in
opposition to a general Union of the States, that he explicitly
treats of a CONFEDERATE REPUBLIC as the expedient for extending the
sphere of popular government, and reconciling the advantages of
monarchy with those of republicanism.
``It is very probable,'' (says he1) ``that mankind would
have been obliged at length to live constantly under the government
of a single person, had they not contrived a kind of constitution
that has all the internal advantages of a republican, together with
the external force of a monarchical government. I mean a
CONFEDERATE REPUBLIC.
``This form of government is a convention by which several
smaller STATES agree to become members of a larger ONE, which they
intend to form. It is a kind of assemblage of societies that
constitute a new one, capable of increasing, by means of new
associations, till they arrive to such a degree of power as to be
able to provide for the security of the united body.
``A republic of this kind, able to withstand an external force,
may support itself without any internal corruptions. The form of
this society prevents all manner of inconveniences.
``If a single member should attempt to usurp the supreme
authority, he could not be supposed to have an equal authority and
credit in all the confederate states. Were he to have too great
influence over one, this would alarm the rest. Were he to subdue a
part, that which would still remain free might oppose him with
forces independent of those which he had usurped and overpower him
before he could be settled in his usurpation.
``Should a popular insurrection happen in one of the confederate
states the others are able to quell it. Should abuses creep into
one part, they are reformed by those that remain sound. The state
may be destroyed on one side, and not on the other; the confederacy
may be dissolved, and the confederates preserve their sovereignty.
``As this government is composed of small republics, it enjoys
the internal happiness of each; and with respect to its external
situation, it is possessed, by means of the association, of all the
advantages of large monarchies.''
I have thought it proper to quote at length these interesting
passages, because they contain a luminous abridgment of the
principal arguments in favor of the Union, and must effectually
remove the false impressions which a misapplication of other parts
of the work was calculated to make. They have, at the same time, an
intimate connection with the more immediate design of this paper;
which is, to illustrate the tendency of the Union to repress
domestic faction and insurrection.
A distinction, more subtle than accurate, has been raised
between a CONFEDERACY and a CONSOLIDATION of the States. The
essential characteristic of the first is said to be, the restriction
of its authority to the members in their collective capacities,
without reaching to the individuals of whom they are composed. It
is contended that the national council ought to have no concern with
any object of internal administration. An exact equality of
suffrage between the members has also been insisted upon as a
leading feature of a confederate government. These positions are,
in the main, arbitrary; they are supported neither by principle nor
precedent. It has indeed happened, that governments of this kind
have generally operated in the manner which the distinction taken
notice of, supposes to be inherent in their nature; but there have
been in most of them extensive exceptions to the practice, which
serve to prove, as far as example will go, that there is no absolute
rule on the subject. And it will be clearly shown in the course of
this investigation that as far as the principle contended for has
prevailed, it has been the cause of incurable disorder and
imbecility in the government.
The definition of a CONFEDERATE REPUBLIC seems simply to be ``an
assemblage of societies,'' or an association of two or more states
into one state. The extent, modifications, and objects of the
federal authority are mere matters of discretion. So long as the
separate organization of the members be not abolished; so long as
it exists, by a constitutional necessity, for local purposes;
though it should be in perfect subordination to the general
authority of the union, it would still be, in fact and in theory, an
association of states, or a confederacy. The proposed Constitution,
so far from implying an abolition of the State governments, makes
them constituent parts of the national sovereignty, by allowing them
a direct representation in the Senate, and leaves in their
possession certain exclusive and very important portions of
sovereign power. This fully corresponds, in every rational import
of the terms, with the idea of a federal government.
In the Lycian confederacy, which consisted of twenty-three
CITIES or republics, the largest were entitled to THREE votes in the
COMMON COUNCIL, those of the middle class to TWO, and the smallest
to ONE. The COMMON COUNCIL had the appointment of all the judges
and magistrates of the respective CITIES. This was certainly the
most, delicate species of interference in their internal
administration; for if there be any thing that seems exclusively
appropriated to the local jurisdictions, it is the appointment of
their own officers. Yet Montesquieu, speaking of this association,
says: ``Were I to give a model of an excellent Confederate
Republic, it would be that of Lycia.'' Thus we perceive that the
distinctions insisted upon were not within the contemplation of this
enlightened civilian; and we shall be led to conclude, that they
are the novel refinements of an erroneous theory.
PUBLIUS.
1 ``Spirit of Lawa,'' vol. i., book ix., chap. i.
FEDERALIST No. 10
The Same Subject Continued
(The Union as a Safeguard Against Domestic Faction and
Insurrection)
From the New York Packet.
Friday, November 23, 1787.
MADISON
To the People of the State of New York:
AMONG the numerous advantages promised by a wellconstructed
Union, none deserves to be more accurately developed than its
tendency to break and control the violence of faction. The friend
of popular governments never finds himself so much alarmed for their
character and fate, as when he contemplates their propensity to this
dangerous vice. He will not fail, therefore, to set a due value on
any plan which, without violating the principles to which he is
attached, provides a proper cure for it. The instability,
injustice, and confusion introduced into the public councils, have,
in truth, been the mortal diseases under which popular governments
have everywhere perished; as they continue to be the favorite and
fruitful topics from which the adversaries to liberty derive their
most specious declamations. The valuable improvements made by the
American constitutions on the popular models, both ancient and
modern, cannot certainly be too much admired; but it would be an
unwarrantable partiality, to contend that they have as effectually
obviated the danger on this side, as was wished and expected.
Complaints are everywhere heard from our most considerate and
virtuous citizens, equally the friends of public and private faith,
and of public and personal liberty, that our governments are too
unstable, that the public good is disregarded in the conflicts of
rival parties, and that measures are too often decided, not
according to the rules of justice and the rights of the minor party,
but by the superior force of an interested and overbearing majority.
However anxiously we may wish that these complaints had no
foundation, the evidence, of known facts will not permit us to deny
that they are in some degree true. It will be found, indeed, on a
candid review of our situation, that some of the distresses under
which we labor have been erroneously charged on the operation of our
governments; but it will be found, at the same time, that other
causes will not alone account for many of our heaviest misfortunes;
and, particularly, for that prevailing and increasing distrust of
public engagements, and alarm for private rights, which are echoed
from one end of the continent to the other. These must be chiefly,
if not wholly, effects of the unsteadiness and injustice with which
a factious spirit has tainted our public administrations.
By a faction, I understand a number of citizens, whether
amounting to a majority or a minority of the whole, who are united
and actuated by some common impulse of passion, or of interest,
adversed to the rights of other citizens, or to the permanent and
aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the
one, by removing its causes; the other, by controlling its effects.
There are again two methods of removing the causes of faction:
the one, by destroying the liberty which is essential to its
existence; the other, by giving to every citizen the same opinions,
the same passions, and the same interests.
It could never be more truly said than of the first remedy, that
it was worse than the disease. Liberty is to faction what air is to
fire, an aliment without which it instantly expires. But it could
not be less folly to abolish liberty, which is essential to
political life, because it nourishes faction, than it would be to
wish the annihilation of air, which is essential to animal life,
because it imparts to fire its destructive agency.
The second expedient is as impracticable as the first would be
unwise. As long as the reason of man continues fallible, and he is
at liberty to exercise it, different opinions will be formed. As
long as the connection subsists between his reason and his
self-love, his opinions and his passions will have a reciprocal
influence on each other; and the former will be objects to which
the latter will attach themselves. The diversity in the faculties
of men, from which the rights of property originate, is not less an
insuperable obstacle to a uniformity of interests. The protection
of these faculties is the first object of government. From the
protection of different and unequal faculties of acquiring property,
the possession of different degrees and kinds of property
immediately results; and from the influence of these on the
sentiments and views of the respective proprietors, ensues a
division of the society into different interests and parties.
The latent causes of faction are thus sown in the nature of man;
and we see them everywhere brought into different degrees of
activity, according to the different circumstances of civil society.
A zeal for different opinions concerning religion, concerning
government, and many other points, as well of speculation as of
practice; an attachment to different leaders ambitiously contending
for pre-eminence and power; or to persons of other descriptions
whose fortunes have been interesting to the human passions, have, in
turn, divided mankind into parties, inflamed them with mutual
animosity, and rendered them much more disposed to vex and oppress
each other than to co-operate for their common good. So strong is
this propensity of mankind to fall into mutual animosities, that
where no substantial occasion presents itself, the most frivolous
and fanciful distinctions have been sufficient to kindle their
unfriendly passions and excite their most violent conflicts. But
the most common and durable source of factions has been the various
and unequal distribution of property. Those who hold and those who
are without property have ever formed distinct interests in society.
Those who are creditors, and those who are debtors, fall under a
like discrimination. A landed interest, a manufacturing interest, a
mercantile interest, a moneyed interest, with many lesser interests,
grow up of necessity in civilized nations, and divide them into
different classes, actuated by different sentiments and views. The
regulation of these various and interfering interests forms the
principal task of modern legislation, and involves the spirit of
party and faction in the necessary and ordinary operations of the
government.
No man is allowed to be a judge in his own cause, because his
interest would certainly bias his judgment, and, not improbably,
corrupt his integrity. With equal, nay with greater reason, a body
of men are unfit to be both judges and parties at the same time;
yet what are many of the most important acts of legislation, but so
many judicial determinations, not indeed concerning the rights of
single persons, but concerning the rights of large bodies of
citizens? And what are the different classes of legislators but
advocates and parties to the causes which they determine? Is a law
proposed concerning private debts? It is a question to which the
creditors are parties on one side and the debtors on the other.
Justice ought to hold the balance between them. Yet the parties
are, and must be, themselves the judges; and the most numerous
party, or, in other words, the most powerful faction must be
expected to prevail. Shall domestic manufactures be encouraged, and
in what degree, by restrictions on foreign manufactures? are
questions which would be differently decided by the landed and the
manufacturing classes, and probably by neither with a sole regard to
justice and the public good. The apportionment of taxes on the
various descriptions of property is an act which seems to require
the most exact impartiality; yet there is, perhaps, no legislative
act in which greater opportunity and temptation are given to a
predominant party to trample on the rules of justice. Every
shilling with which they overburden the inferior number, is a
shilling saved to their own pockets.
It is in vain to say that enlightened statesmen will be able to
adjust these clashing interests, and render them all subservient to
the public good. Enlightened statesmen will not always be at the
helm. Nor, in many cases, can such an adjustment be made at all
without taking into view indirect and remote considerations, which
will rarely prevail over the immediate interest which one party may
find in disregarding the rights of another or the good of the whole.
The inference to which we are brought is, that the CAUSES of
faction cannot be removed, and that relief is only to be sought in
the means of controlling its EFFECTS.
If a faction consists of less than a majority, relief is
supplied by the republican principle, which enables the majority to
defeat its sinister views by regular vote. It may clog the
administration, it may convulse the society; but it will be unable
to execute and mask its violence under the forms of the Constitution.
When a majority is included in a faction, the form of popular
government, on the other hand, enables it to sacrifice to its ruling
passion or interest both the public good and the rights of other
citizens. To secure the public good and private rights against the
danger of such a faction, and at the same time to preserve the
spirit and the form of popular government, is then the great object
to which our inquiries are directed. Let me add that it is the
great desideratum by which this form of government can be rescued
from the opprobrium under which it has so long labored, and be
recommended to the esteem and adoption of mankind.
By what means is this object attainable? Evidently by one of
two only. Either the existence of the same passion or interest in a
majority at the same time must be prevented, or the majority, having
such coexistent passion or interest, must be rendered, by their
number and local situation, unable to concert and carry into effect
schemes of oppression. If the impulse and the opportunity be
suffered to coincide, we well know that neither moral nor religious
motives can be relied on as an adequate control. They are not found
to be such on the injustice and violence of individuals, and lose
their efficacy in proportion to the number combined together, that
is, in proportion as their efficacy becomes needful.
From this view of the subject it may be concluded that a pure
democracy, by which I mean a society consisting of a small number of
citizens, who assemble and administer the government in person, can
admit of no cure for the mischiefs of faction. A common passion or
interest will, in almost every case, be felt by a majority of the
whole; a communication and concert result from the form of
government itself; and there is nothing to check the inducements to
sacrifice the weaker party or an obnoxious individual. Hence it is
that such democracies have ever been spectacles of turbulence and
contention; have ever been found incompatible with personal
security or the rights of property; and have in general been as
short in their lives as they have been violent in their deaths.
Theoretic politicians, who have patronized this species of
government, have erroneously supposed that by reducing mankind to a
perfect equality in their political rights, they would, at the same
time, be perfectly equalized and assimilated in their possessions,
their opinions, and their passions.
A republic, by which I mean a government in which the scheme of
representation takes place, opens a different prospect, and promises
the cure for which we are seeking. Let us examine the points in
which it varies from pure democracy, and we shall comprehend both
the nature of the cure and the efficacy which it must derive from
the Union.
The two great points of difference between a democracy and a
republic are: first, the delegation of the government, in the
latter, to a small number of citizens elected by the rest;
secondly, the greater number of citizens, and greater sphere of
country, over which the latter may be extended.
The effect of the first difference is, on the one hand, to
refine and enlarge the public views, by passing them through the
medium of a chosen body of citizens, whose wisdom may best discern
the true interest of their country, and whose patriotism and love of
justice will be least likely to sacrifice it to temporary or partial
considerations. Under such a regulation, it may well happen that
the public voice, pronounced by the representatives of the people,
will be more consonant to the public good than if pronounced by the
people themselves, convened for the purpose. On the other hand, the
effect may be inverted. Men of factious tempers, of local
prejudices, or of sinister designs, may, by intrigue, by corruption,
or by other means, first obtain the suffrages, and then betray the
interests, of the people. The question resulting is, whether small
or extensive republics are more favorable to the election of proper
guardians of the public weal; and it is clearly decided in favor of
the latter by two obvious considerations:
In the first place, it is to be remarked that, however small the
republic may be, the representatives must be raised to a certain
number, in order to guard against the cabals of a few; and that,
however large it may be, they must be limited to a certain number,
in order to guard against the confusion of a multitude. Hence, the
number of representatives in the two cases not being in proportion
to that of the two constituents, and being proportionally greater in
the small republic, it follows that, if the proportion of fit
characters be not less in the large than in the small republic, the
former will present a greater option, and consequently a greater
probability of a fit choice.
In the next place, as each representative will be chosen by a
greater number of citizens in the large than in the small republic,
it will be more difficult for unworthy candidates to practice with
success the vicious arts by which elections are too often carried;
and the suffrages of the people being more free, will be more
likely to centre in men who possess the most attractive merit and
the most diffusive and established characters.
It must be confessed that in this, as in most other cases, there
is a mean, on both sides of which inconveniences will be found to
lie. By enlarging too much the number of electors, you render the
representatives too little acquainted with all their local
circumstances and lesser interests; as by reducing it too much, you
render him unduly attached to these, and too little fit to
comprehend and pursue great and national objects. The federal
Constitution forms a happy combination in this respect; the great
and aggregate interests being referred to the national, the local
and particular to the State legislatures.
The other point of difference is, the greater number of citizens
and extent of territory which may be brought within the compass of
republican than of democratic government; and it is this
circumstance principally which renders factious combinations less to
be dreaded in the former than in the latter. The smaller the
society, the fewer probably will be the distinct parties and
interests composing it; the fewer the distinct parties and
interests, the more frequently will a majority be found of the same
party; and the smaller the number of individuals composing a
majority, and the smaller the compass within which they are placed,
the more easily will they concert and execute their plans of
oppression. Extend the sphere, and you take in a greater variety of
parties and interests; you make it less probable that a majority of
the whole will have a common motive to invade the rights of other
citizens; or if such a common motive exists, it will be more
difficult for all who feel it to discover their own strength, and to
act in unison with each other. Besides other impediments, it may be
remarked that, where there is a consciousness of unjust or
dishonorable purposes, communication is always checked by distrust
in proportion to the number whose concurrence is necessary.
Hence, it clearly appears, that the same advantage which a
republic has over a democracy, in controlling the effects of
faction, is enjoyed by a large over a small republic,--is enjoyed by
the Union over the States composing it. Does the advantage consist
in the substitution of representatives whose enlightened views and
virtuous sentiments render them superior to local prejudices and
schemes of injustice? It will not be denied that the representation
of the Union will be most likely to possess these requisite
endowments. Does it consist in the greater security afforded by a
greater variety of parties, against the event of any one party being
able to outnumber and oppress the rest? In an equal degree does the
increased variety of parties comprised within the Union, increase
this security. Does it, in fine, consist in the greater obstacles
opposed to the concert and accomplishment of the secret wishes of an
unjust and interested majority? Here, again, the extent of the
Union gives it the most palpable advantage.
The influence of factious leaders may kindle a flame within
their particular States, but will be unable to spread a general
conflagration through the other States. A religious sect may
degenerate into a political faction in a part of the Confederacy;
but the variety of sects dispersed over the entire face of it must
secure the national councils against any danger from that source. A
rage for paper money, for an abolition of debts, for an equal
division of property, or for any other improper or wicked project,
will be less apt to pervade the whole body of the Union than a
particular member of it; in the same proportion as such a malady is
more likely to taint a particular county or district, than an entire
State.
In the extent and proper structure of the Union, therefore, we
behold a republican remedy for the diseases most incident to
republican government. And according to the degree of pleasure and
pride we feel in being republicans, ought to be our zeal in
cherishing the spirit and supporting the character of Federalists.
PUBLIUS.
FEDERALIST No. 11
The Utility of the Union in Respect to Commercial Relations and a
Navy
For the Independent Journal.
HAMILTON
To the People of the State of New York:
THE importance of the Union, in a commercial light, is one of
those points about which there is least room to entertain a
difference of opinion, and which has, in fact, commanded the most
general assent of men who have any acquaintance with the subject.
This applies as well to our intercourse with foreign countries as
with each other.
There are appearances to authorize a supposition that the
adventurous spirit, which distinguishes the commercial character of
America, has already excited uneasy sensations in several of the
maritime powers of Europe. They seem to be apprehensive of our too
great interference in that carrying trade, which is the support of
their navigation and the foundation of their naval strength. Those
of them which have colonies in America look forward to what this
country is capable of becoming, with painful solicitude. They
foresee the dangers that may threaten their American dominions from
the neighborhood of States, which have all the dispositions, and
would possess all the means, requisite to the creation of a powerful
marine. Impressions of this kind will naturally indicate the policy
of fostering divisions among us, and of depriving us, as far as
possible, of an ACTIVE COMMERCE in our own bottoms. This would
answer the threefold purpose of preventing our interference in their
navigation, of monopolizing the profits of our trade, and of
clipping the wings by which we might soar to a dangerous greatness.
Did not prudence forbid the detail, it would not be difficult to
trace, by facts, the workings of this policy to the cabinets of
ministers.
If we continue united, we may counteract a policy so unfriendly
to our prosperity in a variety of ways. By prohibitory regulations,
extending, at the same time, throughout the States, we may oblige
foreign countries to bid against each other, for the privileges of
our markets. This assertion will not appear chimerical to those who
are able to appreciate the importance of the markets of three
millions of people--increasing in rapid progression, for the most
part exclusively addicted to agriculture, and likely from local
circumstances to remain so--to any manufacturing nation; and the
immense difference there would be to the trade and navigation of
such a nation, between a direct communication in its own ships, and
an indirect conveyance of its products and returns, to and from
America, in the ships of another country. Suppose, for instance, we
had a government in America, capable of excluding Great Britain
(with whom we have at present no treaty of commerce) from all our
ports; what would be the probable operation of this step upon her
politics? Would it not enable us to negotiate, with the fairest
prospect of success, for commercial privileges of the most valuable
and extensive kind, in the dominions of that kingdom? When these
questions have been asked, upon other occasions, they have received
a plausible, but not a solid or satisfactory answer. It has been
said that prohibitions on our part would produce no change in the
system of Britain, because she could prosecute her trade with us
through the medium of the Dutch, who would be her immediate
customers and paymasters for those articles which were wanted for
the supply of our markets. But would not her navigation be
materially injured by the loss of the important advantage of being
her own carrier in that trade? Would not the principal part of its
profits be intercepted by the Dutch, as a compensation for their
agency and risk? Would not the mere circumstance of freight
occasion a considerable deduction? Would not so circuitous an
intercourse facilitate the competitions of other nations, by
enhancing the price of British commodities in our markets, and by
transferring to other hands the management of this interesting
branch of the British commerce?
A mature consideration of the objects suggested by these
questions will justify a belief that the real disadvantages to
Britain from such a state of things, conspiring with the
pre-possessions of a great part of the nation in favor of the
American trade, and with the importunities of the West India
islands, would produce a relaxation in her present system, and would
let us into the enjoyment of privileges in the markets of those
islands elsewhere, from which our trade would derive the most
substantial benefits. Such a point gained from the British
government, and which could not be expected without an equivalent in
exemptions and immunities in our markets, would be likely to have a
correspondent effect on the conduct of other nations, who would not
be inclined to see themselves altogether supplanted in our trade.
A further resource for influencing the conduct of European
nations toward us, in this respect, would arise from the
establishment of a federal navy. There can be no doubt that the
continuance of the Union under an efficient government would put it
in our power, at a period not very distant, to create a navy which,
if it could not vie with those of the great maritime powers, would
at least be of respectable weight if thrown into the scale of either
of two contending parties. This would be more peculiarly the case
in relation to operations in the West Indies. A few ships of the
line, sent opportunely to the reinforcement of either side, would
often be sufficient to decide the fate of a campaign, on the event
of which interests of the greatest magnitude were suspended. Our
position is, in this respect, a most commanding one. And if to this
consideration we add that of the usefulness of supplies from this
country, in the prosecution of military operations in the West
Indies, it will readily be perceived that a situation so favorable
would enable us to bargain with great advantage for commercial
privileges. A price would be set not only upon our friendship, but
upon our neutrality. By a steady adherence to the Union we may
hope, erelong, to become the arbiter of Europe in America, and to be
able to incline the balance of European competitions in this part of
the world as our interest may dictate.
But in the reverse of this eligible situation, we shall discover
that the rivalships of the parts would make them checks upon each
other, and would frustrate all the tempting advantages which nature
has kindly placed within our reach. In a state so insignificant our
commerce would be a prey to the wanton intermeddlings of all nations
at war with each other; who, having nothing to fear from us, would
with little scruple or remorse, supply their wants by depredations
on our property as often as it fell in their way. The rights of
neutrality will only be respected when they are defended by an
adequate power. A nation, despicable by its weakness, forfeits even
the privilege of being neutral.
Under a vigorous national government, the natural strength and
resources of the country, directed to a common interest, would
baffle all the combinations of European jealousy to restrain our
growth. This situation would even take away the motive to such
combinations, by inducing an impracticability of success. An active
commerce, an extensive navigation, and a flourishing marine would
then be the offspring of moral and physical necessity. We might
defy the little arts of the little politicians to control or vary
the irresistible and unchangeable course of nature.
But in a state of disunion, these combinations might exist and
might operate with success. It would be in the power of the
maritime nations, availing themselves of our universal impotence, to
prescribe the conditions of our political existence; and as they
have a common interest in being our carriers, and still more in
preventing our becoming theirs, they would in all probability
combine to embarrass our navigation in such a manner as would in
effect destroy it, and confine us to a PASSIVE COMMERCE. We should
then be compelled to content ourselves with the first price of our
commodities, and to see the profits of our trade snatched from us to
enrich our enemies and p rsecutors. That unequaled spirit of
enterprise, which signalizes the genius of the American merchants
and navigators, and which is in itself an inexhaustible mine of
national wealth, would be stifled and lost, and poverty and disgrace
would overspread a country which, with wisdom, might make herself
the admiration and envy of the world.
There are rights of great moment to the trade of America which
are rights of the Union--I allude to the fisheries, to the navigation
of the Western lakes, and to that of the Mississippi. The
dissolution of the Confederacy would give room for delicate
questions concerning the future existence of these rights; which
the interest of more powerful partners would hardly fail to solve to
our disadvantage. The disposition of Spain with regard to the
Mississippi needs no comment. France and Britain are concerned with
us in the fisheries, and view them as of the utmost moment to their
navigation. They, of course, would hardly remain long indifferent
to that decided mastery, of which experience has shown us to be
possessed in this valuable branch of traffic, and by which we are
able to undersell those nations in their own markets. What more
natural than that they should be disposed to exclude from the lists
such dangerous competitors?
This branch of trade ought not to be considered as a partial
benefit. All the navigating States may, in different degrees,
advantageously participate in it, and under circumstances of a
greater extension of mercantile capital, would not be unlikely to do
it. As a nursery of seamen, it now is, or when time shall have more
nearly assimilated the principles of navigation in the several
States, will become, a universal resource. To the establishment of
a navy, it must be indispensable.
To this great national object, a NAVY, union will contribute in
various ways. Every institution will grow and flourish in
proportion to the quantity and extent of the means concentred
towards its formation and support. A navy of the United States, as
it would embrace the resources of all, is an object far less remote
than a navy of any single State or partial confederacy, which would
only embrace the resources of a single part. It happens, indeed,
that different portions of confederated America possess each some
peculiar advantage for this essential establishment. The more
southern States furnish in greater abundance certain kinds of naval
stores--tar, pitch, and turpentine. Their wood for the construction
of ships is also of a more solid and lasting texture. The
difference in the duration of the ships of which the navy might be
composed, if chiefly constructed of Southern wood, would be of
signal importance, either in the view of naval strength or of
national economy. Some of the Southern and of the Middle States
yield a greater plenty of iron, and of better quality. Seamen must
chiefly be drawn from the Northern hive. The necessity of naval
protection to external or maritime commerce does not require a
particular elucidation, no more than the conduciveness of that
species of commerce to the prosperity of a navy.
An unrestrained intercourse between the States themselves will
advance the trade of each by an interchange of their respective
productions, not only for the supply of reciprocal wants at home,
but for exportation to foreign markets. The veins of commerce in
every part will be replenished, and will acquire additional motion
and vigor from a free circulation of the commodities of every part.
Commercial enterprise will have much greater scope, from the
diversity in the productions of different States. When the staple
of one fails from a bad harvest or unproductive crop, it can call to
its aid the staple of another. The variety, not less than the
value, of products for exportation contributes to the activity of
foreign commerce. It can be conducted upon much better terms with a
large number of materials of a given value than with a small number
of materials of the same value; arising from the competitions of
trade and from the fluctations of markets. Particular articles may
be in great demand at certain periods, and unsalable at others; but
if there be a variety of articles, it can scarcely happen that they
should all be at one time in the latter predicament, and on this
account the operations of the merchant would be less liable to any
considerable obstruction or stagnation. The speculative trader will
at once perceive the force of these observations, and will
acknowledge that the aggregate balance of the commerce of the United
States would bid fair to be much more favorable than that of the
thirteen States without union or with partial unions.
It may perhaps be replied to this, that whether the States are
united or disunited, there would still be an intimate intercourse
between them which would answer the same ends; this intercourse
would be fettered, interrupted, and narrowed by a multiplicity of
causes, which in the course of these papers have been amply detailed.
A unity of commercial, as well as political, interests, can only
result from a unity of government.
There are other points of view in which this subject might be
placed, of a striking and animating kind. But they would lead us
too far into the regions of futurity, and would involve topics not
proper for a newspaper discussion. I shall briefly observe, that
our situation invites and our interests prompt us to aim at an
ascendant in the system of American affairs. The world may
politically, as well as geographically, be divided into four parts,
each having a distinct set of interests. Unhappily for the other
three, Europe, by her arms and by her negotiations, by force and by
fraud, has, in different degrees, extended her dominion over them
all. Africa, Asia, and America, have successively felt her
domination. The superiority she has long maintained has tempted her
to plume herself as the Mistress of the World, and to consider the
rest of mankind as created for her benefit. Men admired as profound
philosophers have, in direct terms, attributed to her inhabitants a
physical superiority, and have gravely asserted that all animals,
and with them the human species, degenerate in America--that even
dogs cease to bark after having breathed awhile in our
atmosphere.1 Facts have too long supported these arrogant
pretensions of the Europeans. It belongs to us to vindicate the
honor of the human race, and to teach that assuming brother,
moderation. Union will enable us to do it. Disunion will will add
another victim to his triumphs. Let Americans disdain to be the
instruments of European greatness! Let the thirteen States, bound
together in a strict and indissoluble Union, concur in erecting one
great American system, superior to the control of all transatlantic
force or influence, and able to dictate the terms of the connection
between the old and the new world!
PUBLIUS.
``Recherches philosophiques sur les Americains.''
FEDERALIST No. 12
The Utility of the Union In Respect to Revenue
From the New York Packet.
Tuesday, November 27, 1787.
HAMILTON
To the People of the State of New York:
THE effects of Union upon the commercial prosperity of the
States have been sufficiently delineated. Its tendency to promote
the interests of revenue will be the subject of our present inquiry.
The prosperity of commerce is now perceived and acknowledged by
all enlightened statesmen to be the most useful as well as the most
productive source of national wealth, and has accordingly become a
primary object of their political cares. By multipying the means of
gratification, by promoting the introduction and circulation of the
precious metals, those darling objects of human avarice and
enterprise, it serves to vivify and invigorate the channels of
industry, and to make them flow with greater activity and
copiousness. The assiduous merchant, the laborious husbandman, the
active mechanic, and the industrious manufacturer,--all orders of
men, look forward with eager expectation and growing alacrity to
this pleasing reward of their toils. The often-agitated question
between agriculture and commerce has, from indubitable experience,
received a decision which has silenced the rivalship that once
subsisted between them, and has proved, to the satisfaction of their
friends, that their interests are intimately blended and interwoven.
It has been found in various countries that, in proportion as
commerce has flourished, land has risen in value. And how could it
have happened otherwise? Could that which procures a freer vent for
the products of the earth, which furnishes new incitements to the
cultivation of land, which is the most powerful instrument in
increasing the quantity of money in a state--could that, in fine,
which is the faithful handmaid of labor and industry, in every
shape, fail to augment that article, which is the prolific parent of
far the greatest part of the objects upon which they are exerted?
It is astonishing that so simple a truth should ever have had an
adversary; and it is one, among a multitude of proofs, how apt a
spirit of ill-informed jealousy, or of too great abstraction and
refinement, is to lead men astray from the plainest truths of reason
and conviction.
The ability of a country to pay taxes must always be
proportioned, in a great degree, to the quantity of money in
circulation, and to the celerity with which it circulates.
Commerce, contributing to both these objects, must of necessity
render the payment of taxes easier, and facilitate the requisite
supplies to the treasury. The hereditary dominions of the Emperor
of Germany contain a great extent of fertile, cultivated, and
populous territory, a large proportion of which is situated in mild
and luxuriant climates. In some parts of this territory are to be
found the best gold and silver mines in Europe. And yet, from the
want of the fostering influence of commerce, that monarch can boast
but slender revenues. He has several times been compelled to owe
obligations to the pecuniary succors of other nations for the
preservation of his essential interests, and is unable, upon the
strength of his own resources, to sustain a long or continued war.
But it is not in this aspect of the subject alone that Union
will be seen to conduce to the purpose of revenue. There are other
points of view, in which its influence will appear more immediate
and decisive. It is evident from the state of the country, from the
habits of the people, from the experience we have had on the point
itself, that it is impracticable to raise any very considerable sums
by direct taxation. Tax laws have in vain been multiplied; new
methods to enforce the collection have in vain been tried; the
public expectation has been uniformly disappointed, and the
treasuries of the States have remained empty. The popular system of
administration inherent in the nature of popular government,
coinciding with the real scarcity of money incident to a languid and
mutilated state of trade, has hitherto defeated every experiment for
extensive collections, and has at length taught the different
legislatures the folly of attempting them.
No person acquainted with what happens in other countries will
be surprised at this circumstance. In so opulent a nation as that
of Britain, where direct taxes from superior wealth must be much
more tolerable, and, from the vigor of the government, much more
practicable, than in America, far the greatest part of the national
revenue is derived from taxes of the indirect kind, from imposts,
and from excises. Duties on imported articles form a large branch
of this latter description.
In America, it is evident that we must a long time depend for
the means of revenue chiefly on such duties. In most parts of it,
excises must be confined within a narrow compass. The genius of the
people will ill brook the inquisitive and peremptory spirit of
excise laws. The pockets of the farmers, on the other hand, will
reluctantly yield but scanty supplies, in the unwelcome shape of
impositions on their houses and lands; and personal property is too
precarious and invisible a fund to be laid hold of in any other way
than by the inperceptible agency of taxes on consumption.
If these remarks have any foundation, that state of things which
will best enable us to improve and extend so valuable a resource
must be best adapted to our political welfare. And it cannot admit
of a serious doubt, that this state of things must rest on the basis
of a general Union. As far as this would be conducive to the
interests of commerce, so far it must tend to the extension of the
revenue to be drawn from that source. As far as it would contribute
to rendering regulations for the collection of the duties more
simple and efficacious, so far it must serve to answer the purposes
of making the same rate of duties more productive, and of putting it
into the power of the government to increase the rate without
prejudice to trade.
The relative situation of these States; the number of rivers
with which they are intersected, and of bays that wash there shores;
the facility of communication in every direction; the affinity of
language and manners; the familiar habits of intercourse; --all
these are circumstances that would conspire to render an illicit
trade between them a matter of little difficulty, and would insure
frequent evasions of the commercial regulations of each other. The
separate States or confederacies would be necessitated by mutual
jealousy to avoid the temptations to that kind of trade by the
lowness of their duties. The temper of our governments, for a long
time to come, would not permit those rigorous precautions by which
the European nations guard the avenues into their respective
countries, as well by land as by water; and which, even there, are
found insufficient obstacles to the adventurous stratagems of
avarice.
In France, there is an army of patrols (as they are called)
constantly employed to secure their fiscal regulations against the
inroads of the dealers in contraband trade. Mr. Neckar computes the
number of these patrols at upwards of twenty thousand. This shows
the immense difficulty in preventing that species of traffic, where
there is an inland communication, and places in a strong light the
disadvantages with which the collection of duties in this country
would be encumbered, if by disunion the States should be placed in a
situation, with respect to each other, resembling that of France
with respect to her neighbors. The arbitrary and vexatious powers
with which the patrols are necessarily armed, would be intolerable
in a free country.
If, on the contrary, there be but one government pervading all
the States, there will be, as to the principal part of our commerce,
but ONE SIDE to guard--the ATLANTIC COAST. Vessels arriving directly
from foreign countries, laden with valuable cargoes, would rarely
choose to hazard themselves to the complicated and critical perils
which would attend attempts to unlade prior to their coming into
port. They would have to dread both the dangers of the coast, and
of detection, as well after as before their arrival at the places of
their final destination. An ordinary degree of vigilance would be
competent to the prevention of any material infractions upon the
rights of the revenue. A few armed vessels, judiciously stationed
at the entrances of our ports, might at a small expense be made
useful sentinels of the laws. And the government having the same
interest to provide against violations everywhere, the co-operation
of its measures in each State would have a powerful tendency to
render them effectual. Here also we should preserve by Union, an
advantage which nature holds out to us, and which would be
relinquished by separation. The United States lie at a great
distance from Europe, and at a considerable distance from all other
places with which they would have extensive connections of foreign
trade. The passage from them to us, in a few hours, or in a single
night, as between the coasts of France and Britain, and of other
neighboring nations, would be impracticable. This is a prodigious
security against a direct contraband with foreign countries; but a
circuitous contraband to one State, through the medium of another,
would be both easy and safe. The difference between a direct
importation from abroad, and an indirect importation through the
channel of a neighboring State, in small parcels, according to time
and opportunity, with the additional facilities of inland
communication, must be palpable to every man of discernment.
It is therefore evident, that one national government would be
able, at much less expense, to extend the duties on imports, beyond
comparison, further than would be practicable to the States
separately, or to any partial confederacies. Hitherto, I believe,
it may safely be asserted, that these duties have not upon an
average exceeded in any State three per cent. In France they are
estimated to be about fifteen per cent., and in Britain they exceed
this proportion.1 There seems to be nothing to hinder their
being increased in this country to at least treble their present
amount. The single article of ardent spirits, under federal
regulation, might be made to furnish a considerable revenue. Upon a
ratio to the importation into this State, the whole quantity
imported into the United States may be estimated at four millions of
gallons; which, at a shilling per gallon, would produce two hundred
thousand pounds. That article would well bear this rate of duty;
and if it should tend to diminish the consumption of it, such an
effect would be equally favorable to the agriculture, to the
economy, to the morals, and to the health of the society. There is,
perhaps, nothing so much a subject of national extravagance as these
spirits.
What will be the consequence, if we are not able to avail
ourselves of the resource in question in its full extent? A nation
cannot long exist without revenues. Destitute of this essential
support, it must resign its independence, and sink into the degraded
condition of a province. This is an extremity to which no
government will of choice accede. Revenue, therefore, must be had
at all events. In this country, if the principal part be not drawn
from commerce, it must fall with oppressive weight upon land. It
has been already intimated that excises, in their true
signification, are too little in unison with the feelings of the
people, to admit of great use being made of that mode of taxation;
nor, indeed, in the States where almost the sole employment is
agriculture, are the objects proper for excise sufficiently numerous
to permit very ample collections in that way. Personal estate (as
has been before remarked), from the difficulty in tracing it, cannot
be subjected to large contributions, by any other means than by
taxes on consumption. In populous cities, it may be enough the
subject of conjecture, to occasion the oppression of individuals,
without much aggregate benefit to the State; but beyond these
circles, it must, in a great measure, escape the eye and the hand of
the tax-gatherer. As the necessities of the State, nevertheless,
must be satisfied in some mode or other, the defect of other
resources must throw the principal weight of public burdens on the
possessors of land. And as, on the other hand, the wants of the
government can never obtain an adequate supply, unless all the
sources of revenue are open to its demands, the finances of the
community, under such embarrassments, cannot be put into a situation
consistent with its respectability or its security. Thus we shall
not even have the consolations of a full treasury, to atone for the
oppression of that valuable class of the citizens who are employed
in the cultivation of the soil. But public and private distress
will keep pace with each other in gloomy concert; and unite in
deploring the infatuation of those counsels which led to disunion.
PUBLIUS.
1 If my memory be right they amount to twenty per cent.
FEDERALIST No. 13
Advantage of the Union in Respect to Economy in Government
For the Independent Journal.
HAMILTON
To the People of the State of New York:
As CONNECTED with the subject of revenue, we may with propriety
consider that of economy. The money saved from one object may be
usefully applied to another, and there will be so much the less to
be drawn from the pockets of the people. If the States are united
under one government, there will be but one national civil list to
support; if they are divided into several confederacies, there will
be as many different national civil lists to be provided for--and
each of them, as to the principal departments, coextensive with that
which would be necessary for a government of the whole. The entire
separation of the States into thirteen unconnected sovereignties is
a project too extravagant and too replete with danger to have many
advocates. The ideas of men who speculate upon the dismemberment of
the empire seem generally turned toward three confederacies--one
consisting of the four Northern, another of the four Middle, and a
third of the five Southern States. There is little probability that
there would be a greater number. According to this distribution,
each confederacy would comprise an extent of territory larger than
that of the kingdom of Great Britain. No well-informed man will
suppose that the affairs of such a confederacy can be properly
regulated by a government less comprehensive in its organs or
institutions than that which has been proposed by the convention.
When the dimensions of a State attain to a certain magnitude, it
requires the same energy of government and the same forms of
administration which are requisite in one of much greater extent.
This idea admits not of precise demonstration, because there is no
rule by which we can measure the momentum of civil power necessary
to the government of any given number of individuals; but when we
consider that the island of Britain, nearly commensurate with each
of the supposed confederacies, contains about eight millions of
people, and when we reflect upon the degree of authority required to
direct the passions of so large a society to the public good, we
shall see no reason to doubt that the like portion of power would be
sufficient to perform the same task in a society far more numerous.
Civil power, properly organized and exerted, is capable of
diffusing its force to a very great extent; and can, in a manner,
reproduce itself in every part of a great empire by a judicious
arrangement of subordinate institutions.
The supposition that each confederacy into which the States
would be likely to be divided would require a government not less
comprehensive than the one proposed, will be strengthened by another
supposition, more probable than that which presents us with three
confederacies as the alternative to a general Union. If we attend
carefully to geographical and commercial considerations, in
conjunction with the habits and prejudices of the different States,
we shall be led to conclude that in case of disunion they will most
naturally league themselves under two governments. The four Eastern
States, from all the causes that form the links of national sympathy
and connection, may with certainty be expected to unite. New York,
situated as she is, would never be unwise enough to oppose a feeble
and unsupported flank to the weight of that confederacy. There are
other obvious reasons that would facilitate her accession to it.
New Jersey is too small a State to think of being a frontier, in
opposition to this still more powerful combination; nor do there
appear to be any obstacles to her admission into it. Even
Pennsylvania would have strong inducements to join the Northern
league. An active foreign commerce, on the basis of her own
navigation, is her true policy, and coincides with the opinions and
dispositions of her citizens. The more Southern States, from
various circumstances, may not think themselves much interested in
the encouragement of navigation. They may prefer a system which
would give unlimited scope to all nations to be the carriers as well
as the purchasers of their commodities. Pennsylvania may not choose
to confound her interests in a connection so adverse to her policy.
As she must at all events be a frontier, she may deem it most
consistent with her safety to have her exposed side turned towards
the weaker power of the Southern, rather than towards the stronger
power of the Northern, Confederacy. This would give her the fairest
chance to avoid being the Flanders of America. Whatever may be the
determination of Pennsylvania, if the Northern Confederacy includes
New Jersey, there is no likelihood of more than one confederacy to
the south of that State.
Nothing can be more evident than that the thirteen States will
be able to support a national government better than one half, or
one third, or any number less than the whole. This reflection must
have great weight in obviating that objection to the proposed plan,
which is founded on the principle of expense; an objection,
however, which, when we come to take a nearer view of it, will
appear in every light to stand on mistaken ground.
If, in addition to the consideration of a plurality of civil
lists, we take into view the number of persons who must necessarily
be employed to guard the inland communication between the different
confederacies against illicit trade, and who in time will infallibly
spring up out of the necessities of revenue; and if we also take
into view the military establishments which it has been shown would
unavoidably result from the jealousies and conflicts of the several
nations into which the States would be divided, we shall clearly
discover that a separation would be not less injurious to the
economy, than to the tranquillity, commerce, revenue, and liberty of
every part.
PUBLIUS.
FEDERALIST No. 14
Objections to the Proposed Constitution From Extent of Territory
Answered
From the New York Packet.
Friday, November 30, 1787.
MADISON
To the People of the State of New York:
WE HAVE seen the necessity of the Union, as our bulwark against
foreign danger, as the conservator of peace among ourselves, as the
guardian of our commerce and other common interests, as the only
substitute for those military establishments which have subverted
the liberties of the Old World, and as the proper antidote for the
diseases of faction, which have proved fatal to other popular
governments, and of which alarming symptoms have been betrayed by
our own. All that remains, within this branch of our inquiries, is
to take notice of an objection that may be drawn from the great
extent of country which the Union embraces. A few observations on
this subject will be the more proper, as it is perceived that the
adversaries of the new Constitution are availing themselves of the
prevailing prejudice with regard to the practicable sphere of
republican administration, in order to supply, by imaginary
difficulties, the want of those solid objections which they endeavor
in vain to find.
The error which limits republican government to a narrow
district has been unfolded and refuted in preceding papers. I
remark here only that it seems to owe its rise and prevalence
chiefly to the confounding of a republic with a democracy, applying
to the former reasonings drawn from the nature of the latter. The
true distinction between these forms was also adverted to on a
former occasion. It is, that in a democracy, the people meet and
exercise the government in person; in a republic, they assemble and
administer it by their representatives and agents. A democracy,
consequently, will be confined to a small spot. A republic may be
extended over a large region.
To this accidental source of the error may be added the artifice
of some celebrated authors, whose writings have had a great share in
forming the modern standard of political opinions. Being subjects
either of an absolute or limited monarchy, they have endeavored to
heighten the advantages, or palliate the evils of those forms, by
placing in comparison the vices and defects of the republican, and
by citing as specimens of the latter the turbulent democracies of
ancient Greece and modern Italy. Under the confusion of names, it
has been an easy task to transfer to a republic observations
applicable to a democracy only; and among others, the observation
that it can never be established but among a small number of people,
living within a small compass of territory.
Such a fallacy may have been the less perceived, as most of the
popular governments of antiquity were of the democratic species;
and even in modern Europe, to which we owe the great principle of
representation, no example is seen of a government wholly popular,
and founded, at the same time, wholly on that principle. If Europe
has the merit of discovering this great mechanical power in
government, by the simple agency of which the will of the largest
political body may be concentred, and its force directed to any
object which the public good requires, America can claim the merit
of making the discovery the basis of unmixed and extensive republics.
It is only to be lamented that any of her citizens should wish to
deprive her of the additional merit of displaying its full efficacy
in the establishment of the comprehensive system now under her
consideration.
As the natural limit of a democracy is that distance from the
central point which will just permit the most remote citizens to
assemble as often as their public functions demand, and will include
no greater number than can join in those functions; so the natural
limit of a republic is that distance from the centre which will
barely allow the representatives to meet as often as may be
necessary for the administration of public affairs. Can it be said
that the limits of the United States exceed this distance? It will
not be said by those who recollect that the Atlantic coast is the
longest side of the Union, that during the term of thirteen years,
the representatives of the States have been almost continually
assembled, and that the members from the most distant States are not
chargeable with greater intermissions of attendance than those from
the States in the neighborhood of Congress.
That we may form a juster estimate with regard to this
interesting subject, let us resort to the actual dimensions of the
Union. The limits, as fixed by the treaty of peace, are: on the
east the Atlantic, on the south the latitude of thirty-one degrees,
on the west the Mississippi, and on the north an irregular line
running in some instances beyond the forty-fifth degree, in others
falling as low as the forty-second. The southern shore of Lake Erie
lies below that latitude. Computing the distance between the
thirty-first and forty-fifth degrees, it amounts to nine hundred and
seventy-three common miles; computing it from thirty-one to
forty-two degrees, to seven hundred and sixty-four miles and a half.
Taking the mean for the distance, the amount will be eight hundred
and sixty-eight miles and three-fourths. The mean distance from the
Atlantic to the Mississippi does not probably exceed seven hundred
and fifty miles. On a comparison of this extent with that of
several countries in Europe, the practicability of rendering our
system commensurate to it appears to be demonstrable. It is not a
great deal larger than Germany, where a diet representing the whole
empire is continually assembled; or than Poland before the late
dismemberment, where another national diet was the depositary of the
supreme power. Passing by France and Spain, we find that in Great
Britain, inferior as it may be in size, the representatives of the
northern extremity of the island have as far to travel to the
national council as will be required of those of the most remote
parts of the Union.
Favorable as this view of the subject may be, some observations
remain which will place it in a light still more satisfactory.
In the first place it is to be remembered that the general
government is not to be charged with the whole power of making and
administering laws. Its jurisdiction is limited to certain
enumerated objects, which concern all the members of the republic,
but which are not to be attained by the separate provisions of any.
The subordinate governments, which can extend their care to all
those other subjects which can be separately provided for, will
retain their due authority and activity. Were it proposed by the
plan of the convention to abolish the governments of the particular
States, its adversaries would have some ground for their objection;
though it would not be difficult to show that if they were
abolished the general government would be compelled, by the
principle of self-preservation, to reinstate them in their proper
jurisdiction.
A second observation to be made is that the immediate object of
the federal Constitution is to secure the union of the thirteen
primitive States, which we know to be practicable; and to add to
them such other States as may arise in their own bosoms, or in their
neighborhoods, which we cannot doubt to be equally practicable. The
arrangements that may be necessary for those angles and fractions of
our territory which lie on our northwestern frontier, must be left
to those whom further discoveries and experience will render more
equal to the task.
Let it be remarked, in the third place, that the intercourse
throughout the Union will be facilitated by new improvements. Roads
will everywhere be shortened, and kept in better order;
accommodations for travelers will be multiplied and meliorated; an
interior navigation on our eastern side will be opened throughout,
or nearly throughout, the whole extent of the thirteen States. The
communication between the Western and Atlantic districts, and
between different parts of each, will be rendered more and more easy
by those numerous canals with which the beneficence of nature has
intersected our country, and which art finds it so little difficult
to connect and complete.
A fourth and still more important consideration is, that as
almost every State will, on one side or other, be a frontier, and
will thus find, in regard to its safety, an inducement to make some
sacrifices for the sake of the general protection; so the States
which lie at the greatest distance from the heart of the Union, and
which, of course, may partake least of the ordinary circulation of
its benefits, will be at the same time immediately contiguous to
foreign nations, and will consequently stand, on particular
occasions, in greatest need of its strength and resources. It may
be inconvenient for Georgia, or the States forming our western or
northeastern borders, to send their representatives to the seat of
government; but they would find it more so to struggle alone
against an invading enemy, or even to support alone the whole
expense of those precautions which may be dictated by the
neighborhood of continual danger. If they should derive less
benefit, therefore, from the Union in some respects than the less
distant States, they will derive greater benefit from it in other
respects, and thus the proper equilibrium will be maintained
throughout.
I submit to you, my fellow-citizens, these considerations, in
full confidence that the good sense which has so often marked your
decisions will allow them their due weight and effect; and that you
will never suffer difficulties, however formidable in appearance, or
however fashionable the error on which they may be founded, to drive
you into the gloomy and perilous scene into which the advocates for
disunion would conduct you. Hearken not to the unnatural voice
which tells you that the people of America, knit together as they
are by so many cords of affection, can no longer live together as
members of the same family; can no longer continue the mutual
guardians of their mutual happiness; can no longer be
fellowcitizens of one great, respectable, and flourishing empire.
Hearken not to the voice which petulantly tells you that the form
of government recommended for your adoption is a novelty in the
political world; that it has never yet had a place in the theories
of the wildest projectors; that it rashly attempts what it is
impossible to accomplish. No, my countrymen, shut your ears against
this unhallowed language. Shut your hearts against the poison which
it conveys; the kindred blood which flows in the veins of American
citizens, the mingled blood which they have shed in defense of their
sacred rights, consecrate their Union, and excite horror at the idea
of their becoming aliens, rivals, enemies. And if novelties are to
be shunned, believe me, the most alarming of all novelties, the most
wild of all projects, the most rash of all attempts, is that of
rendering us in pieces, in order to preserve our liberties and
promote our happiness. But why is the experiment of an extended
republic to be rejected, merely because it may comprise what is new?
Is it not the glory of the people of America, that, whilst they
have paid a decent regard to the opinions of former times and other
nations, they have not suffered a blind veneration for antiquity,
for custom, or for names, to overrule the suggestions of their own
good sense, the knowledge of their own situation, and the lessons of
their own experience? To this manly spirit, posterity will be
indebted for the possession, and the world for the example, of the
numerous innovations displayed on the American theatre, in favor of
private rights and public happiness. Had no important step been
taken by the leaders of the Revolution for which a precedent could
not be discovered, no government established of which an exact model
did not present itself, the people of the United States might, at
this moment have been numbered among the melancholy victims of
misguided councils, must at best have been laboring under the weight
of some of those forms which have crushed the liberties of the rest
of mankind. Happily for America, happily, we trust, for the whole
human race, they pursued a new and more noble course. They
accomplished a revolution which has no parallel in the annals of
human society. They reared the fabrics of governments which have no
model on the face of the globe. They formed the design of a great
Confederacy, which it is incumbent on their successors to improve
and perpetuate. If their works betray imperfections, we wonder at
the fewness of them. If they erred most in the structure of the
Union, this was the work most difficult to be executed; this is the
work which has been new modelled by the act of your convention, and
it is that act on which you are now to deliberate and to decide.
PUBLIUS.
FEDERALIST No. 15
The Insufficiency of the Present Confederation to Preserve the
Union
For the Independent Journal.
HAMILTON
To the People of the State of New York.
IN THE course of the preceding papers, I have endeavored, my
fellow-citizens, to place before you, in a clear and convincing
light, the importance of Union to your political safety and
happiness. I have unfolded to you a complication of dangers to
which you would be exposed, should you permit that sacred knot which
binds the people of America together be severed or dissolved by
ambition or by avarice, by jealousy or by misrepresentation. In the
sequel of the inquiry through which I propose to accompany you, the
truths intended to be inculcated will receive further confirmation
from facts and arguments hitherto unnoticed. If the road over which
you will still have to pass should in some places appear to you
tedious or irksome, you will recollect that you are in quest of
information on a subject the most momentous which can engage the
attention of a free people, that the field through which you have to
travel is in itself spacious, and that the difficulties of the
journey have been unnecessarily increased by the mazes with which
sophistry has beset the way. It will be my aim to remove the
obstacles from your progress in as compendious a manner as it can be
done, without sacrificing utility to despatch.
In pursuance of the plan which I have laid down for the
discussion of the subject, the point next in order to be examined is
the ``insufficiency of the present Confederation to the preservation
of the Union.'' It may perhaps be asked what need there is of
reasoning or proof to illustrate a position which is not either
controverted or doubted, to which the understandings and feelings of
all classes of men assent, and which in substance is admitted by the
opponents as well as by the friends of the new Constitution. It
must in truth be acknowledged that, however these may differ in
other respects, they in general appear to harmonize in this
sentiment, at least, that there are material imperfections in our
national system, and that something is necessary to be done to
rescue us from impending anarchy. The facts that support this
opinion are no longer objects of speculation. They have forced
themselves upon the sensibility of the people at large, and have at
length extorted from those, whose mistaken policy has had the
principal share in precipitating the extremity at which we are
arrived, a reluctant confession of the reality of those defects in
the scheme of our federal government, which have been long pointed
out and regretted by the intelligent friends of the Union.
We may indeed with propriety be said to have reached almost the
last stage of national humiliation. There is scarcely anything that
can wound the pride or degrade the character of an independent
nation which we do not experience. Are there engagements to the
performance of which we are held by every tie respectable among men?
These are the subjects of constant and unblushing violation. Do we
owe debts to foreigners and to our own citizens contracted in a time
of imminent peril for the preservation of our political existence?
These remain without any proper or satisfactory provision for their
discharge. Have we valuable territories and important posts in the
possession of a foreign power which, by express stipulations, ought
long since to have been surrendered? These are still retained, to
the prejudice of our interests, not less than of our rights. Are we
in a condition to resent or to repel the aggression? We have
neither troops, nor treasury, nor government.1 Are we even in a
condition to remonstrate with dignity? The just imputations on our
own faith, in respect to the same treaty, ought first to be removed.
Are we entitled by nature and compact to a free participation in
the navigation of the Mississippi? Spain excludes us from it. Is
public credit an indispensable resource in time of public danger?
We seem to have abandoned its cause as desperate and irretrievable.
Is commerce of importance to national wealth? Ours is at the
lowest point of declension. Is respectability in the eyes of
foreign powers a safeguard against foreign encroachments? The
imbecility of our government even forbids them to treat with us.
Our ambassadors abroad are the mere pageants of mimic sovereignty.
Is a violent and unnatural decrease in the value of land a symptom
of national distress? The price of improved land in most parts of
the country is much lower than can be accounted for by the quantity
of waste land at market, and can only be fully explained by that
want of private and public confidence, which are so alarmingly
prevalent among all ranks, and which have a direct tendency to
depreciate property of every kind. Is private credit the friend and
patron of industry? That most useful kind which relates to
borrowing and lending is reduced within the narrowest limits, and
this still more from an opinion of insecurity than from the scarcity
of money. To shorten an enumeration of particulars which can afford
neither pleasure nor instruction, it may in general be demanded,
what indication is there of national disorder, poverty, and
insignificance that could befall a community so peculiarly blessed
with natural advantages as we are, which does not form a part of the
dark catalogue of our public misfortunes?
This is the melancholy situation to which we have been brought
by those very maxims and councils which would now deter us from
adopting the proposed Constitution; and which, not content with
having conducted us to the brink of a precipice, seem resolved to
plunge us into the abyss that awaits us below. Here, my countrymen,
impelled by every motive that ought to influence an enlightened
people, let us make a firm stand for our safety, our tranquillity,
our dignity, our reputation. Let us at last break the fatal charm
which has too long seduced us from the paths of felicity and
prosperity.
It is true, as has been before observed that facts, too stubborn
to be resisted, have produced a species of general assent to the
abstract proposition that there exist material defects in our
national system; but the usefulness of the concession, on the part
of the old adversaries of federal measures, is destroyed by a
strenuous opposition to a remedy, upon the only principles that can
give it a chance of success. While they admit that the government
of the United States is destitute of energy, they contend against
conferring upon it those powers which are requisite to supply that
energy. They seem still to aim at things repugnant and
irreconcilable; at an augmentation of federal authority, without a
diminution of State authority; at sovereignty in the Union, and
complete independence in the members. They still, in fine, seem to
cherish with blind devotion the political monster of an imperium
in imperio. This renders a full display of the principal defects
of the Confederation necessary, in order to show that the evils we
experience do not proceed from minute or partial imperfections, but
from fundamental errors in the structure of the building, which
cannot be amended otherwise than by an alteration in the first
principles and main pillars of the fabric.
The great and radical vice in the construction of the existing
Confederation is in the principle of LEGISLATION for STATES or
GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as
contradistinguished from the INDIVIDUALS of which they consist.
Though this principle does not run through all the powers delegated
to the Union, yet it pervades and governs those on which the
efficacy of the rest depends. Except as to the rule of appointment,
the United States has an indefinite discretion to make requisitions
for men and money; but they have no authority to raise either, by
regulations extending to the individual citizens of America. The
consequence of this is, that though in theory their resolutions
concerning those objects are laws, constitutionally binding on the
members of the Union, yet in practice they are mere recommendations
which the States observe or disregard at their option.
It is a singular instance of the capriciousness of the human
mind, that after all the admonitions we have had from experience on
this head, there should still be found men who object to the new
Constitution, for deviating from a principle which has been found
the bane of the old, and which is in itself evidently incompatible
with the idea of GOVERNMENT; a principle, in short, which, if it is
to be executed at all, must substitute the violent and sanguinary
agency of the sword to the mild influence of the magistracy.
There is nothing absurd or impracticable in the idea of a league
or alliance between independent nations for certain defined purposes
precisely stated in a treaty regulating all the details of time,
place, circumstance, and quantity; leaving nothing to future
discretion; and depending for its execution on the good faith of
the parties. Compacts of this kind exist among all civilized
nations, subject to the usual vicissitudes of peace and war, of
observance and non-observance, as the interests or passions of the
contracting powers dictate. In the early part of the present
century there was an epidemical rage in Europe for this species of
compacts, from which the politicians of the times fondly hoped for
benefits which were never realized. With a view to establishing the
equilibrium of power and the peace of that part of the world, all
the resources of negotiation were exhausted, and triple and
quadruple alliances were formed; but they were scarcely formed
before they were broken, giving an instructive but afflicting lesson
to mankind, how little dependence is to be placed on treaties which
have no other sanction than the obligations of good faith, and which
oppose general considerations of peace and justice to the impulse of
any immediate interest or passion.
If the particular States in this country are disposed to stand
in a similar relation to each other, and to drop the project of a
general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be
pernicious, and would entail upon us all the mischiefs which have
been enumerated under the first head; but it would have the merit
of being, at least, consistent and practicable Abandoning all views
towards a confederate government, this would bring us to a simple
alliance offensive and defensive; and would place us in a situation
to be alternate friends and enemies of each other, as our mutual
jealousies and rivalships, nourished by the intrigues of foreign
nations, should prescribe to us.
But if we are unwilling to be placed in this perilous situation;
if we still will adhere to the design of a national government, or,
which is the same thing, of a superintending power, under the
direction of a common council, we must resolve to incorporate into
our plan those ingredients which may be considered as forming the
characteristic difference between a league and a government; we
must extend the authority of the Union to the persons of the
citizens, --the only proper objects of government.
Government implies the power of making laws. It is essential to
the idea of a law, that it be attended with a sanction; or, in
other words, a penalty or punishment for disobedience. If there be
no penalty annexed to disobedience, the resolutions or commands
which pretend to be laws will, in fact, amount to nothing more than
advice or recommendation. This penalty, whatever it may be, can
only be inflicted in two ways: by the agency of the courts and
ministers of justice, or by military force; by the COERCION of the
magistracy, or by the COERCION of arms. The first kind can
evidently apply only to men; the last kind must of necessity, be
employed against bodies politic, or communities, or States. It is
evident that there is no process of a court by which the observance
of the laws can, in the last resort, be enforced. Sentences may be
denounced against them for violations of their duty; but these
sentences can only be carried into execution by the sword. In an
association where the general authority is confined to the
collective bodies of the communities, that compose it, every breach
of the laws must involve a state of war; and military execution
must become the only instrument of civil obedience. Such a state of
things can certainly not deserve the name of government, nor would
any prudent man choose to commit his happiness to it.
There was a time when we were told that breaches, by the States,
of the regulations of the federal authority were not to be expected;
that a sense of common interest would preside over the conduct of
the respective members, and would beget a full compliance with all
the constitutional requisitions of the Union. This language, at the
present day, would appear as wild as a great part of what we now
hear from the same quarter will be thought, when we shall have
received further lessons from that best oracle of wisdom, experience.
It at all times betrayed an ignorance of the true springs by which
human conduct is actuated, and belied the original inducements to
the establishment of civil power. Why has government been
instituted at all? Because the passions of men will not conform to
the dictates of reason and justice, without constraint. Has it been
found that bodies of men act with more rectitude or greater
disinterestedness than individuals? The contrary of this has been
inferred by all accurate observers of the conduct of mankind; and
the inference is founded upon obvious reasons. Regard to reputation
has a less active influence, when the infamy of a bad action is to
be divided among a number than when it is to fall singly upon one.
A spirit of faction, which is apt to mingle its poison in the
deliberations of all bodies of men, will often hurry the persons of
whom they are composed into improprieties and excesses, for which
they would blush in a private capacity.
In addition to all this, there is, in the nature of sovereign
power, an impatience of control, that disposes those who are
invested with the exercise of it, to look with an evil eye upon all
external attempts to restrain or direct its operations. From this
spirit it happens, that in every political association which is
formed upon the principle of uniting in a common interest a number
of lesser sovereignties, there will be found a kind of eccentric
tendency in the subordinate or inferior orbs, by the operation of
which there will be a perpetual effort in each to fly off from the
common centre. This tendency is not difficult to be accounted for.
It has its origin in the love of power. Power controlled or
abridged is almost always the rival and enemy of that power by which
it is controlled or abridged. This simple proposition will teach us
how little reason there is to expect, that the persons intrusted
with the administration of the affairs of the particular members of
a confederacy will at all times be ready, with perfect good-humor,
and an unbiased regard to the public weal, to execute the
resolutions or decrees of the general authority. The reverse of
this results from the constitution of human nature.
If, therefore, the measures of the Confederacy cannot be
executed without the intervention of the particular administrations,
there will be little prospect of their being executed at all. The
rulers of the respective members, whether they have a constitutional
right to do it or not, will undertake to judge of the propriety of
the measures themselves. They will consider the conformity of the
thing proposed or required to their immediate interests or aims;
the momentary conveniences or inconveniences that would attend its
adoption. All this will be done; and in a spirit of interested and
suspicious scrutiny, without that knowledge of national
circumstances and reasons of state, which is essential to a right
judgment, and with that strong predilection in favor of local
objects, which can hardly fail to mislead the decision. The same
process must be repeated in every member of which the body is
constituted; and the execution of the plans, framed by the councils
of the whole, will always fluctuate on the discretion of the
ill-informed and prejudiced opinion of every part. Those who have
been conversant in the proceedings of popular assemblies; who have
seen how difficult it often is, where there is no exterior pressure
of circumstances, to bring them to harmonious resolutions on
important points, will readily conceive how impossible it must be to
induce a number of such assemblies, deliberating at a distance from
each other, at different times, and under different impressions,
long to co-operate in the same views and pursuits.
In our case, the concurrence of thirteen distinct sovereign
wills is requisite, under the Confederation, to the complete
execution of every important measure that proceeds from the Union.
It has happened as was to have been foreseen. The measures of the
Union have not been executed; the delinquencies of the States have,
step by step, matured themselves to an extreme, which has, at
length, arrested all the wheels of the national government, and
brought them to an awful stand. Congress at this time scarcely
possess the means of keeping up the forms of administration, till
the States can have time to agree upon a more substantial substitute
for the present shadow of a federal government. Things did not come
to this desperate extremity at once. The causes which have been
specified produced at first only unequal and disproportionate
degrees of compliance with the requisitions of the Union. The
greater deficiencies of some States furnished the pretext of example
and the temptation of interest to the complying, or to the least
delinquent States. Why should we do more in proportion than those
who are embarked with us in the same political voyage? Why should
we consent to bear more than our proper share of the common burden?
These were suggestions which human selfishness could not withstand,
and which even speculative men, who looked forward to remote
consequences, could not, without hesitation, combat. Each State,
yielding to the persuasive voice of immediate interest or
convenience, has successively withdrawn its support, till the frail
and tottering edifice seems ready to fall upon our heads, and to
crush us beneath its ruins.
PUBLIUS.
1 ``I mean for the Union.''
FEDERALIST No. 16
The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the
Union)
From the New York Packet.
Tuesday, December 4, 1787.
HAMILTON
To the People of the State of New York:
THE tendency of the principle of legislation for States, or
communities, in their political capacities, as it has been
exemplified by the experiment we have made of it, is equally
attested by the events which have befallen all other governments of
the confederate kind, of which we have any account, in exact
proportion to its prevalence in those systems. The confirmations of
this fact will be worthy of a distinct and particular examination.
I shall content myself with barely observing here, that of all the
confederacies of antiquity, which history has handed down to us, the
Lycian and Achaean leagues, as far as there remain vestiges of them,
appear to have been most free from the fetters of that mistaken
principle, and were accordingly those which have best deserved, and
have most liberally received, the applauding suffrages of political
writers.
This exceptionable principle may, as truly as emphatically, be
styled the parent of anarchy: It has been seen that delinquencies
in the members of the Union are its natural and necessary offspring;
and that whenever they happen, the only constitutional remedy is
force, and the immediate effect of the use of it, civil war.
It remains to inquire how far so odious an engine of government,
in its application to us, would even be capable of answering its end.
If there should not be a large army constantly at the disposal of
the national government it would either not be able to employ force
at all, or, when this could be done, it would amount to a war
between parts of the Confederacy concerning the infractions of a
league, in which the strongest combination would be most likely to
prevail, whether it consisted of those who supported or of those who
resisted the general authority. It would rarely happen that the
delinquency to be redressed would be confined to a single member,
and if there were more than one who had neglected their duty,
similarity of situation would induce them to unite for common
defense. Independent of this motive of sympathy, if a large and
influential State should happen to be the aggressing member, it
would commonly have weight enough with its neighbors to win over
some of them as associates to its cause. Specious arguments of
danger to the common liberty could easily be contrived; plausible
excuses for the deficiencies of the party could, without difficulty,
be invented to alarm the apprehensions, inflame the passions, and
conciliate the good-will, even of those States which were not
chargeable with any violation or omission of duty. This would be
the more likely to take place, as the delinquencies of the larger
members might be expected sometimes to proceed from an ambitious
premeditation in their rulers, with a view to getting rid of all
external control upon their designs of personal aggrandizement; the
better to effect which it is presumable they would tamper beforehand
with leading individuals in the adjacent States. If associates
could not be found at home, recourse would be had to the aid of
foreign powers, who would seldom be disinclined to encouraging the
dissensions of a Confederacy, from the firm union of which they had
so much to fear. When the sword is once drawn, the passions of men
observe no bounds of moderation. The suggestions of wounded pride,
the instigations of irritated resentment, would be apt to carry the
States against which the arms of the Union were exerted, to any
extremes necessary to avenge the affront or to avoid the disgrace of
submission. The first war of this kind would probably terminate in
a dissolution of the Union.
This may be considered as the violent death of the Confederacy.
Its more natural death is what we now seem to be on the point of
experiencing, if the federal system be not speedily renovated in a
more substantial form. It is not probable, considering the genius
of this country, that the complying States would often be inclined
to support the authority of the Union by engaging in a war against
the non-complying States. They would always be more ready to pursue
the milder course of putting themselves upon an equal footing with
the delinquent members by an imitation of their example. And the
guilt of all would thus become the security of all. Our past
experience has exhibited the operation of this spirit in its full
light. There would, in fact, be an insuperable difficulty in
ascertaining when force could with propriety be employed. In the
article of pecuniary contribution, which would be the most usual
source of delinquency, it would often be impossible to decide
whether it had proceeded from disinclination or inability. The
pretense of the latter would always be at hand. And the case must
be very flagrant in which its fallacy could be detected with
sufficient certainty to justify the harsh expedient of compulsion.
It is easy to see that this problem alone, as often as it should
occur, would open a wide field for the exercise of factious views,
of partiality, and of oppression, in the majority that happened to
prevail in the national council.
It seems to require no pains to prove that the States ought not
to prefer a national Constitution which could only be kept in motion
by the instrumentality of a large army continually on foot to
execute the ordinary requisitions or decrees of the government. And
yet this is the plain alternative involved by those who wish to deny
it the power of extending its operations to individuals. Such a
scheme, if practicable at all, would instantly degenerate into a
military despotism; but it will be found in every light
impracticable. The resources of the Union would not be equal to the
maintenance of an army considerable enough to confine the larger
States within the limits of their duty; nor would the means ever be
furnished of forming such an army in the first instance. Whoever
considers the populousness and strength of several of these States
singly at the present juncture, and looks forward to what they will
become, even at the distance of half a century, will at once dismiss
as idle and visionary any scheme which aims at regulating their
movements by laws to operate upon them in their collective
capacities, and to be executed by a coercion applicable to them in
the same capacities. A project of this kind is little less romantic
than the monster-taming spirit which is attributed to the fabulous
heroes and demi-gods of antiquity.
Even in those confederacies which have been composed of members
smaller than many of our counties, the principle of legislation for
sovereign States, supported by military coercion, has never been
found effectual. It has rarely been attempted to be employed, but
against the weaker members; and in most instances attempts to
coerce the refractory and disobedient have been the signals of
bloody wars, in which one half of the confederacy has displayed its
banners against the other half.
The result of these observations to an intelligent mind must be
clearly this, that if it be possible at any rate to construct a
federal government capable of regulating the common concerns and
preserving the general tranquillity, it must be founded, as to the
objects committed to its care, upon the reverse of the principle
contended for by the opponents of the proposed Constitution. It
must carry its agency to the persons of the citizens. It must stand
in need of no intermediate legislations; but must itself be
empowered to employ the arm of the ordinary magistrate to execute
its own resolutions. The majesty of the national authority must be
manifested through the medium of the courts of justice. The
government of the Union, like that of each State, must be able to
address itself immediately to the hopes and fears of individuals;
and to attract to its support those passions which have the
strongest influence upon the human heart. It must, in short,
possess all the means, and have aright to resort to all the methods,
of executing the powers with which it is intrusted, that are
possessed and exercised by the government of the particular States.
To this reasoning it may perhaps be objected, that if any State
should be disaffected to the authority of the Union, it could at any
time obstruct the execution of its laws, and bring the matter to the
same issue of force, with the necessity of which the opposite scheme
is reproached.
The pausibility of this objection will vanish the moment we
advert to the essential difference between a mere NON-COMPLIANCE and
a DIRECT and ACTIVE RESISTANCE. If the interposition of the State
legislatures be necessary to give effect to a measure of the Union,
they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is
defeated. This neglect of duty may be disguised under affected but
unsubstantial provisions, so as not to appear, and of course not to
excite any alarm in the people for the safety of the Constitution.
The State leaders may even make a merit of their surreptitious
invasions of it on the ground of some temporary convenience,
exemption, or advantage.
But if the execution of the laws of the national government
should not require the intervention of the State legislatures, if
they were to pass into immediate operation upon the citizens
themselves, the particular governments could not interrupt their
progress without an open and violent exertion of an unconstitutional
power. No omissions nor evasions would answer the end. They would
be obliged to act, and in such a manner as would leave no doubt that
they had encroached on the national rights. An experiment of this
nature would always be hazardous in the face of a constitution in
any degree competent to its own defense, and of a people enlightened
enough to distinguish between a legal exercise and an illegal
usurpation of authority. The success of it would require not merely
a factious majority in the legislature, but the concurrence of the
courts of justice and of the body of the people. If the judges were
not embarked in a conspiracy with the legislature, they would
pronounce the resolutions of such a majority to be contrary to the
supreme law of the land, unconstitutional, and void. If the people
were not tainted with the spirit of their State representatives,
they, as the natural guardians of the Constitution, would throw
their weight into the national scale and give it a decided
preponderancy in the contest. Attempts of this kind would not often
be made with levity or rashness, because they could seldom be made
without danger to the authors, unless in cases of a tyrannical
exercise of the federal authority.
If opposition to the national government should arise from the
disorderly conduct of refractory or seditious individuals, it could
be overcome by the same means which are daily employed against the
same evil under the State governments. The magistracy, being
equally the ministers of the law of the land, from whatever source
it might emanate, would doubtless be as ready to guard the national
as the local regulations from the inroads of private licentiousness.
As to those partial commotions and insurrections, which sometimes
disquiet society, from the intrigues of an inconsiderable faction,
or from sudden or occasional illhumors that do not infect the great
body of the community the general government could command more
extensive resources for the suppression of disturbances of that kind
than would be in the power of any single member. And as to those
mortal feuds which, in certain conjunctures, spread a conflagration
through a whole nation, or through a very large proportion of it,
proceeding either from weighty causes of discontent given by the
government or from the contagion of some violent popular paroxysm,
they do not fall within any ordinary rules of calculation. When
they happen, they commonly amount to revolutions and dismemberments
of empire. No form of government can always either avoid or control
them. It is in vain to hope to guard against events too mighty for
human foresight or precaution, and it would be idle to object to a
government because it could not perform impossibilities.
PUBLIUS.
FEDERALIST No. 17
The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the
Union)
For the Independent Journal.
HAMILTON
To the People of the State of New York:
AN OBJECTION, of a nature different from that which has been
stated and answered, in my last address, may perhaps be likewise
urged against the principle of legislation for the individual
citizens of America. It may be said that it would tend to render
the government of the Union too powerful, and to enable it to absorb
those residuary authorities, which it might be judged proper to
leave with the States for local purposes. Allowing the utmost
latitude to the love of power which any reasonable man can require,
I confess I am at a loss to discover what temptation the persons
intrusted with the administration of the general government could
ever feel to divest the States of the authorities of that
description. The regulation of the mere domestic police of a State
appears to me to hold out slender allurements to ambition.
Commerce, finance, negotiation, and war seem to comprehend all the
objects which have charms for minds governed by that passion; and
all the powers necessary to those objects ought, in the first
instance, to be lodged in the national depository. The
administration of private justice between the citizens of the same
State, the supervision of agriculture and of other concerns of a
similar nature, all those things, in short, which are proper to be
provided for by local legislation, can never be desirable cares of a
general jurisdiction. It is therefore improbable that there should
exist a disposition in the federal councils to usurp the powers with
which they are connected; because the attempt to exercise those
powers would be as troublesome as it would be nugatory; and the
possession of them, for that reason, would contribute nothing to the
dignity, to the importance, or to the splendor of the national
government.
But let it be admitted, for argument's sake, that mere
wantonness and lust of domination would be sufficient to beget that
disposition; still it may be safely affirmed, that the sense of the
constituent body of the national representatives, or, in other
words, the people of the several States, would control the
indulgence of so extravagant an appetite. It will always be far
more easy for the State governments to encroach upon the national
authorities than for the national government to encroach upon the
State authorities. The proof of this proposition turns upon the
greater degree of influence which the State governments if they
administer their affairs with uprightness and prudence, will
generally possess over the people; a circumstance which at the same
time teaches us that there is an inherent and intrinsic weakness in
all federal constitutions; and that too much pains cannot be taken
in their organization, to give them all the force which is
compatible with the principles of liberty.
The superiority of influence in favor of the particular
governments would result partly from the diffusive construction of
the national government, but chiefly from the nature of the objects
to which the attention of the State administrations would be
directed.
It is a known fact in human nature, that its affections are
commonly weak in proportion to the distance or diffusiveness of the
object. Upon the same principle that a man is more attached to his
family than to his neighborhood, to his neighborhood than to the
community at large, the people of each State would be apt to feel a
stronger bias towards their local governments than towards the
government of the Union; unless the force of that principle should
be destroyed by a much better administration of the latter.
This strong propensity of the human heart would find powerful
auxiliaries in the objects of State regulation.
The variety of more minute interests, which will necessarily
fall under the superintendence of the local administrations, and
which will form so many rivulets of influence, running through every
part of the society, cannot be particularized, without involving a
detail too tedious and uninteresting to compensate for the
instruction it might afford.
There is one transcendant advantage belonging to the province of
the State governments, which alone suffices to place the matter in a
clear and satisfactory light,--I mean the ordinary administration of
criminal and civil justice. This, of all others, is the most
powerful, most universal, and most attractive source of popular
obedience and attachment. It is that which, being the immediate and
visible guardian of life and property, having its benefits and its
terrors in constant activity before the public eye, regulating all
those personal interests and familiar concerns to which the
sensibility of individuals is more immediately awake, contributes,
more than any other circumstance, to impressing upon the minds of
the people, affection, esteem, and reverence towards the government.
This great cement of society, which will diffuse itself almost
wholly through the channels of the particular governments,
independent of all other causes of influence, would insure them so
decided an empire over their respective citizens as to render them
at all times a complete counterpoise, and, not unfrequently,
dangerous rivals to the power of the Union.
The operations of the national government, on the other hand,
falling less immediately under the observation of the mass of the
citizens, the benefits derived from it will chiefly be perceived and
attended to by speculative men. Relating to more general interests,
they will be less apt to come home to the feelings of the people;
and, in proportion, less likely to inspire an habitual sense of
obligation, and an active sentiment of attachment.
The reasoning on this head has been abundantly exemplified by
the experience of all federal constitutions with which we are
acquainted, and of all others which have borne the least analogy to
them.
Though the ancient feudal systems were not, strictly speaking,
confederacies, yet they partook of the nature of that species of
association. There was a common head, chieftain, or sovereign,
whose authority extended over the whole nation; and a number of
subordinate vassals, or feudatories, who had large portions of land
allotted to them, and numerous trains of INFERIOR vassals or
retainers, who occupied and cultivated that land upon the tenure of
fealty or obedience, to the persons of whom they held it. Each
principal vassal was a kind of sovereign, within his particular
demesnes. The consequences of this situation were a continual
opposition to authority of the sovereign, and frequent wars between
the great barons or chief feudatories themselves. The power of the
head of the nation was commonly too weak, either to preserve the
public peace, or to protect the people against the oppressions of
their immediate lords. This period of European affairs is
emphatically styled by historians, the times of feudal anarchy.
When the sovereign happened to be a man of vigorous and warlike
temper and of superior abilities, he would acquire a personal weight
and influence, which answered, for the time, the purpose of a more
regular authority. But in general, the power of the barons
triumphed over that of the prince; and in many instances his
dominion was entirely thrown off, and the great fiefs were erected
into independent principalities or States. In those instances in
which the monarch finally prevailed over his vassals, his success
was chiefly owing to the tyranny of those vassals over their
dependents. The barons, or nobles, equally the enemies of the
sovereign and the oppressors of the common people, were dreaded and
detested by both; till mutual danger and mutual interest effected a
union between them fatal to the power of the aristocracy. Had the
nobles, by a conduct of clemency and justice, preserved the fidelity
and devotion of their retainers and followers, the contests between
them and the prince must almost always have ended in their favor,
and in the abridgment or subversion of the royal authority.
This is not an assertion founded merely in speculation or
conjecture. Among other illustrations of its truth which might be
cited, Scotland will furnish a cogent example. The spirit of
clanship which was, at an early day, introduced into that kingdom,
uniting the nobles and their dependants by ties equivalent to those
of kindred, rendered the aristocracy a constant overmatch for the
power of the monarch, till the incorporation with England subdued
its fierce and ungovernable spirit, and reduced it within those
rules of subordination which a more rational and more energetic
system of civil polity had previously established in the latter
kingdom.
The separate governments in a confederacy may aptly be compared
with the feudal baronies; with this advantage in their favor, that
from the reasons already explained, they will generally possess the
confidence and good-will of the people, and with so important a
support, will be able effectually to oppose all encroachments of the
national government. It will be well if they are not able to
counteract its legitimate and necessary authority. The points of
similitude consist in the rivalship of power, applicable to both,
and in the CONCENTRATION of large portions of the strength of the
community into particular DEPOSITS, in one case at the disposal of
individuals, in the other case at the disposal of political bodies.
A concise review of the events that have attended confederate
governments will further illustrate this important doctrine; an
inattention to which has been the great source of our political
mistakes, and has given our jealousy a direction to the wrong side.
This review shall form the subject of some ensuing papers.
PUBLIUS.
FEDERALIST No. 18
The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the
Union)
For the Independent Journal.
HAMILTON AND MADISON
To the People of the State of New York:
AMONG the confederacies of antiquity, the most considerable was
that of the Grecian republics, associated under the Amphictyonic
council. From the best accounts transmitted of this celebrated
institution, it bore a very instructive analogy to the present
Confederation of the American States.
The members retained the character of independent and sovereign
states, and had equal votes in the federal council. This council
had a general authority to propose and resolve whatever it judged
necessary for the common welfare of Greece; to declare and carry on
war; to decide, in the last resort, all controversies between the
members; to fine the aggressing party; to employ the whole force
of the confederacy against the disobedient; to admit new members.
The Amphictyons were the guardians of religion, and of the immense
riches belonging to the temple of Delphos, where they had the right
of jurisdiction in controversies between the inhabitants and those
who came to consult the oracle. As a further provision for the
efficacy of the federal powers, they took an oath mutually to defend
and protect the united cities, to punish the violators of this oath,
and to inflict vengeance on sacrilegious despoilers of the temple.
In theory, and upon paper, this apparatus of powers seems amply
sufficient for all general purposes. In several material instances,
they exceed the powers enumerated in the articles of confederation.
The Amphictyons had in their hands the superstition of the times,
one of the principal engines by which government was then
maintained; they had a declared authority to use coercion against
refractory cities, and were bound by oath to exert this authority on
the necessary occasions.
Very different, nevertheless, was the experiment from the theory.
The powers, like those of the present Congress, were administered
by deputies appointed wholly by the cities in their political
capacities; and exercised over them in the same capacities. Hence
the weakness, the disorders, and finally the destruction of the
confederacy. The more powerful members, instead of being kept in
awe and subordination, tyrannized successively over all the rest.
Athens, as we learn from Demosthenes, was the arbiter of Greece
seventy-three years. The Lacedaemonians next governed it
twenty-nine years; at a subsequent period, after the battle of
Leuctra, the Thebans had their turn of domination.
It happened but too often, according to Plutarch, that the
deputies of the strongest cities awed and corrupted those of the
weaker; and that judgment went in favor of the most powerful party.
Even in the midst of defensive and dangerous wars with Persia
and Macedon, the members never acted in concert, and were, more or
fewer of them, eternally the dupes or the hirelings of the common
enemy. The intervals of foreign war were filled up by domestic
vicissitudes convulsions, and carnage.
After the conclusion of the war with Xerxes, it appears that the
Lacedaemonians required that a number of the cities should be turned
out of the confederacy for the unfaithful part they had acted. The
Athenians, finding that the Lacedaemonians would lose fewer
partisans by such a measure than themselves, and would become
masters of the public deliberations, vigorously opposed and defeated
the attempt. This piece of history proves at once the inefficiency
of the union, the ambition and jealousy of its most powerful
members, and the dependent and degraded condition of the rest. The
smaller members, though entitled by the theory of their system to
revolve in equal pride and majesty around the common center, had
become, in fact, satellites of the orbs of primary magnitude.
Had the Greeks, says the Abbe Milot, been as wise as they were
courageous, they would have been admonished by experience of the
necessity of a closer union, and would have availed themselves of
the peace which followed their success against the Persian arms, to
establish such a reformation. Instead of this obvious policy,
Athens and Sparta, inflated with the victories and the glory they
had acquired, became first rivals and then enemies; and did each
other infinitely more mischief than they had suffered from Xerxes.
Their mutual jealousies, fears, hatreds, and injuries ended in the
celebrated Peloponnesian war; which itself ended in the ruin and
slavery of the Athenians who had begun it.
As a weak government, when not at war, is ever agitated by
internal dissentions, so these never fail to bring on fresh
calamities from abroad. The Phocians having ploughed up some
consecrated ground belonging to the temple of Apollo, the
Amphictyonic council, according to the superstition of the age,
imposed a fine on the sacrilegious offenders. The Phocians, being
abetted by Athens and Sparta, refused to submit to the decree. The
Thebans, with others of the cities, undertook to maintain the
authority of the Amphictyons, and to avenge the violated god. The
latter, being the weaker party, invited the assistance of Philip of
Macedon, who had secretly fostered the contest. Philip gladly
seized the opportunity of executing the designs he had long planned
against the liberties of Greece. By his intrigues and bribes he won
over to his interests the popular leaders of several cities; by
their influence and votes, gained admission into the Amphictyonic
council; and by his arts and his arms, made himself master of the
confederacy.
Such were the consequences of the fallacious principle on which
this interesting establishment was founded. Had Greece, says a
judicious observer on her fate, been united by a stricter
confederation, and persevered in her union, she would never have
worn the chains of Macedon; and might have proved a barrier to the
vast projects of Rome.
The Achaean league, as it is called, was another society of
Grecian republics, which supplies us with valuable instruction.
The Union here was far more intimate, and its organization much
wiser, than in the preceding instance. It will accordingly appear,
that though not exempt from a similar catastrophe, it by no means
equally deserved it.
The cities composing this league retained their municipal
jurisdiction, appointed their own officers, and enjoyed a perfect
equality. The senate, in which they were represented, had the sole
and exclusive right of peace and war; of sending and receiving
ambassadors; of entering into treaties and alliances; of
appointing a chief magistrate or praetor, as he was called, who
commanded their armies, and who, with the advice and consent of ten
of the senators, not only administered the government in the recess
of the senate, but had a great share in its deliberations, when
assembled. According to the primitive constitution, there were two
praetors associated in the administration; but on trial a single
one was preferred.
It appears that the cities had all the same laws and customs,
the same weights and measures, and the same money. But how far this
effect proceeded from the authority of the federal council is left
in uncertainty. It is said only that the cities were in a manner
compelled to receive the same laws and usages. When Lacedaemon was
brought into the league by Philopoemen, it was attended with an
abolition of the institutions and laws of Lycurgus, and an adoption
of those of the Achaeans. The Amphictyonic confederacy, of which
she had been a member, left her in the full exercise of her
government and her legislation. This circumstance alone proves a
very material difference in the genius of the two systems.
It is much to be regretted that such imperfect monuments remain
of this curious political fabric. Could its interior structure and
regular operation be ascertained, it is probable that more light
would be thrown by it on the science of federal government, than by
any of the like experiments with which we are acquainted.
One important fact seems to be witnessed by all the historians
who take notice of Achaean affairs. It is, that as well after the
renovation of the league by Aratus, as before its dissolution by the
arts of Macedon, there was infinitely more of moderation and justice
in the administration of its government, and less of violence and
sedition in the people, than were to be found in any of the cities
exercising SINGLY all the prerogatives of sovereignty. The Abbe
Mably, in his observations on Greece, says that the popular
government, which was so tempestuous elsewhere, caused no disorders
in the members of the Achaean republic, BECAUSE IT WAS THERE
TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.
We are not to conclude too hastily, however, that faction did
not, in a certain degree, agitate the particular cities; much less
that a due subordination and harmony reigned in the general system.
The contrary is sufficiently displayed in the vicissitudes and fate
of the republic.
Whilst the Amphictyonic confederacy remained, that of the
Achaeans, which comprehended the less important cities only, made
little figure on the theatre of Greece. When the former became a
victim to Macedon, the latter was spared by the policy of Philip and
Alexander. Under the successors of these princes, however, a
different policy prevailed. The arts of division were practiced
among the Achaeans. Each city was seduced into a separate interest;
the union was dissolved. Some of the cities fell under the tyranny
of Macedonian garrisons; others under that of usurpers springing
out of their own confusions. Shame and oppression erelong awaken
their love of liberty. A few cities reunited. Their example was
followed by others, as opportunities were found of cutting off their
tyrants. The league soon embraced almost the whole Peloponnesus.
Macedon saw its progress; but was hindered by internal dissensions
from stopping it. All Greece caught the enthusiasm and seemed ready
to unite in one confederacy, when the jealousy and envy in Sparta
and Athens, of the rising glory of the Achaeans, threw a fatal damp
on the enterprise. The dread of the Macedonian power induced the
league to court the alliance of the Kings of Egypt and Syria, who,
as successors of Alexander, were rivals of the king of Macedon.
This policy was defeated by Cleomenes, king of Sparta, who was led
by his ambition to make an unprovoked attack on his neighbors, the
Achaeans, and who, as an enemy to Macedon, had interest enough with
the Egyptian and Syrian princes to effect a breach of their
engagements with the league.
The Achaeans were now reduced to the dilemma of submitting to
Cleomenes, or of supplicating the aid of Macedon, its former
oppressor. The latter expedient was adopted. The contests of the
Greeks always afforded a pleasing opportunity to that powerful
neighbor of intermeddling in their affairs. A Macedonian army
quickly appeared. Cleomenes was vanquished. The Achaeans soon
experienced, as often happens, that a victorious and powerful ally
is but another name for a master. All that their most abject
compliances could obtain from him was a toleration of the exercise
of their laws. Philip, who was now on the throne of Macedon, soon
provoked by his tyrannies, fresh combinations among the Greeks. The
Achaeans, though weakenened by internal dissensions and by the
revolt of Messene, one of its members, being joined by the AEtolians
and Athenians, erected the standard of opposition. Finding
themselves, though thus supported, unequal to the undertaking, they
once more had recourse to the dangerous expedient of introducing the
succor of foreign arms. The Romans, to whom the invitation was
made, eagerly embraced it. Philip was conquered; Macedon subdued.
A new crisis ensued to the league. Dissensions broke out among it
members. These the Romans fostered. Callicrates and other popular
leaders became mercenary instruments for inveigling their countrymen.
The more effectually to nourish discord and disorder the Romans
had, to the astonishment of those who confided in their sincerity,
already proclaimed universal liberty1 throughout Greece. With
the same insidious views, they now seduced the members from the
league, by representing to their pride the violation it committed on
their sovereignty. By these arts this union, the last hope of
Greece, the last hope of ancient liberty, was torn into pieces; and
such imbecility and distraction introduced, that the arms of Rome
found little difficulty in completing the ruin which their arts had
commenced. The Achaeans were cut to pieces, and Achaia loaded with
chains, under which it is groaning at this hour.
I have thought it not superfluous to give the outlines of this
important portion of history; both because it teaches more than one
lesson, and because, as a supplement to the outlines of the Achaean
constitution, it emphatically illustrates the tendency of federal
bodies rather to anarchy among the members, than to tyranny in the
head.
PUBLIUS.
1 This was but another name more specious for the independence
of the members on the federal head.
FEDERALIST No. 19
The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the
Union)
For the Independent Journal.
HAMILTON AND MADISON
To the People of the State of New York:
THE examples of ancient confederacies, cited in my last paper,
have not exhausted the source of experimental instruction on this
subject. There are existing institutions, founded on a similar
principle, which merit particular consideration. The first which
presents itself is the Germanic body.
In the early ages of Christianity, Germany was occupied by seven
distinct nations, who had no common chief. The Franks, one of the
number, having conquered the Gauls, established the kingdom which
has taken its name from them. In the ninth century Charlemagne, its
warlike monarch, carried his victorious arms in every direction;
and Germany became a part of his vast dominions. On the
dismemberment, which took place under his sons, this part was
erected into a separate and independent empire. Charlemagne and his
immediate descendants possessed the reality, as well as the ensigns
and dignity of imperial power. But the principal vassals, whose
fiefs had become hereditary, and who composed the national diets
which Charlemagne had not abolished, gradually threw off the yoke
and advanced to sovereign jurisdiction and independence. The force
of imperial sovereignty was insufficient to restrain such powerful
dependants; or to preserve the unity and tranquillity of the empire.
The most furious private wars, accompanied with every species of
calamity, were carried on between the different princes and states.
The imperial authority, unable to maintain the public order,
declined by degrees till it was almost extinct in the anarchy, which
agitated the long interval between the death of the last emperor of
the Suabian, and the accession of the first emperor of the Austrian
lines. In the eleventh century the emperors enjoyed full
sovereignty: In the fifteenth they had little more than the symbols
and decorations of power.
Out of this feudal system, which has itself many of the
important features of a confederacy, has grown the federal system
which constitutes the Germanic empire. Its powers are vested in a
diet representing the component members of the confederacy; in the
emperor, who is the executive magistrate, with a negative on the
decrees of the diet; and in the imperial chamber and the aulic
council, two judiciary tribunals having supreme jurisdiction in
controversies which concern the empire, or which happen among its
members.
The diet possesses the general power of legislating for the
empire; of making war and peace; contracting alliances; assessing
quotas of troops and money; constructing fortresses; regulating
coin; admitting new members; and subjecting disobedient members to
the ban of the empire, by which the party is degraded from his
sovereign rights and his possessions forfeited. The members of the
confederacy are expressly restricted from entering into compacts
prejudicial to the empire; from imposing tolls and duties on their
mutual intercourse, without the consent of the emperor and diet;
from altering the value of money; from doing injustice to one
another; or from affording assistance or retreat to disturbers of
the public peace. And the ban is denounced against such as shall
violate any of these restrictions. The members of the diet, as
such, are subject in all cases to be judged by the emperor and diet,
and in their private capacities by the aulic council and imperial
chamber.
The prerogatives of the emperor are numerous. The most
important of them are: his exclusive right to make propositions to
the diet; to negative its resolutions; to name ambassadors; to
confer dignities and titles; to fill vacant electorates; to found
universities; to grant privileges not injurious to the states of
the empire; to receive and apply the public revenues; and
generally to watch over the public safety. In certain cases, the
electors form a council to him. In quality of emperor, he possesses
no territory within the empire, nor receives any revenue for his
support. But his revenue and dominions, in other qualities,
constitute him one of the most powerful princes in Europe.
From such a parade of constitutional powers, in the
representatives and head of this confederacy, the natural
supposition would be, that it must form an exception to the general
character which belongs to its kindred systems. Nothing would be
further from the reality. The fundamental principle on which it
rests, that the empire is a community of sovereigns, that the diet
is a representation of sovereigns and that the laws are addressed to
sovereigns, renders the empire a nerveless body, incapable of
regulating its own members, insecure against external dangers, and
agitated with unceasing fermentations in its own bowels.
The history of Germany is a history of wars between the emperor
and the princes and states; of wars among the princes and states
themselves; of the licentiousness of the strong, and the oppression
of the weak; of foreign intrusions, and foreign intrigues; of
requisitions of men and money disregarded, or partially complied
with; of attempts to enforce them, altogether abortive, or attended
with slaughter and desolation, involving the innocent with the
guilty; of general inbecility, confusion, and misery.
In the sixteenth century, the emperor, with one part of the
empire on his side, was seen engaged against the other princes and
states. In one of the conflicts, the emperor himself was put to
flight, and very near being made prisoner by the elector of Saxony.
The late king of Prussia was more than once pitted against his
imperial sovereign; and commonly proved an overmatch for him.
Controversies and wars among the members themselves have been so
common, that the German annals are crowded with the bloody pages
which describe them. Previous to the peace of Westphalia, Germany
was desolated by a war of thirty years, in which the emperor, with
one half of the empire, was on one side, and Sweden, with the other
half, on the opposite side. Peace was at length negotiated, and
dictated by foreign powers; and the articles of it, to which
foreign powers are parties, made a fundamental part of the Germanic
constitution.
If the nation happens, on any emergency, to be more united by
the necessity of self-defense, its situation is still deplorable.
Military preparations must be preceded by so many tedious
discussions, arising from the jealousies, pride, separate views, and
clashing pretensions of sovereign bodies, that before the diet can
settle the arrangements, the enemy are in the field; and before the
federal troops are ready to take it, are retiring into winter
quarters.
The small body of national troops, which has been judged
necessary in time of peace, is defectively kept up, badly paid,
infected with local prejudices, and supported by irregular and
disproportionate contributions to the treasury.
The impossibility of maintaining order and dispensing justice
among these sovereign subjects, produced the experiment of dividing
the empire into nine or ten circles or districts; of giving them an
interior organization, and of charging them with the military
execution of the laws against delinquent and contumacious members.
This experiment has only served to demonstrate more fully the
radical vice of the constitution. Each circle is the miniature
picture of the deformities of this political monster. They either
fail to execute their commissions, or they do it with all the
devastation and carnage of civil war. Sometimes whole circles are
defaulters; and then they increase the mischief which they were
instituted to remedy.
We may form some judgment of this scheme of military coercion
from a sample given by Thuanus. In Donawerth, a free and imperial
city of the circle of Suabia, the Abb 300 de St. Croix enjoyed
certain immunities which had been reserved to him. In the exercise
of these, on some public occasions, outrages were committed on him
by the people of the city. The consequence was that the city was
put under the ban of the empire, and the Duke of Bavaria, though
director of another circle, obtained an appointment to enforce it.
He soon appeared before the city with a corps of ten thousand
troops, and finding it a fit occasion, as he had secretly intended
from the beginning, to revive an antiquated claim, on the pretext
that his ancestors had suffered the place to be dismembered from his
territory,1 he took possession of it in his own name, disarmed,
and punished the inhabitants, and reannexed the city to his domains.
It may be asked, perhaps, what has so long kept this disjointed
machine from falling entirely to pieces? The answer is obvious:
The weakness of most of the members, who are unwilling to expose
themselves to the mercy of foreign powers; the weakness of most of
the principal members, compared with the formidable powers all
around them; the vast weight and influence which the emperor
derives from his separate and heriditary dominions; and the
interest he feels in preserving a system with which his family pride
is connected, and which constitutes him the first prince in Europe;
--these causes support a feeble and precarious Union; whilst the
repellant quality, incident to the nature of sovereignty, and which
time continually strengthens, prevents any reform whatever, founded
on a proper consolidation. Nor is it to be imagined, if this
obstacle could be surmounted, that the neighboring powers would
suffer a revolution to take place which would give to the empire the
force and preeminence to which it is entitled. Foreign nations have
long considered themselves as interested in the changes made by
events in this constitution; and have, on various occasions,
betrayed their policy of perpetuating its anarchy and weakness.
If more direct examples were wanting, Poland, as a government
over local sovereigns, might not improperly be taken notice of. Nor
could any proof more striking be given of the calamities flowing
from such institutions. Equally unfit for self-government and
self-defense, it has long been at the mercy of its powerful
neighbors; who have lately had the mercy to disburden it of one
third of its people and territories.
The connection among the Swiss cantons scarcely amounts to a
confederacy; though it is sometimes cited as an instance of the
stability of such institutions.
They have no common treasury; no common troops even in war; no
common coin; no common judicatory; nor any other common mark of
sovereignty.
They are kept together by the peculiarity of their topographical
position; by their individual weakness and insignificancy; by the
fear of powerful neighbors, to one of which they were formerly
subject; by the few sources of contention among a people of such
simple and homogeneous manners; by their joint interest in their
dependent possessions; by the mutual aid they stand in need of, for
suppressing insurrections and rebellions, an aid expressly
stipulated and often required and afforded; and by the necessity of
some regular and permanent provision for accomodating disputes among
the cantons. The provision is, that the parties at variance shall
each choose four judges out of the neutral cantons, who, in case of
disagreement, choose an umpire. This tribunal, under an oath of
impartiality, pronounces definitive sentence, which all the cantons
are bound to enforce. The competency of this regulation may be
estimated by a clause in their treaty of 1683, with Victor Amadeus
of Savoy; in which he obliges himself to interpose as mediator in
disputes between the cantons, and to employ force, if necessary,
against the contumacious party.
So far as the peculiarity of their case will admit of comparison
with that of the United States, it serves to confirm the principle
intended to be established. Whatever efficacy the union may have
had in ordinary cases, it appears that the moment a cause of
difference sprang up, capable of trying its strength, it failed.
The controversies on the subject of religion, which in three
instances have kindled violent and bloody contests, may be said, in
fact, to have severed the league. The Protestant and Catholic
cantons have since had their separate diets, where all the most
important concerns are adjusted, and which have left the general
diet little other business than to take care of the common bailages.
That separation had another consequence, which merits attention.
It produced opposite alliances with foreign powers: of Berne, at
the head of the Protestant association, with the United Provinces;
and of Luzerne, at the head of the Catholic association, with
France.
PUBLIUS.
1 Pfeffel, ``Nouvel Abreg. Chronol. de l'Hist., etc.,
d'Allemagne,'' says the pretext was to indemnify himself for the
expense of the expedition.
FEDERALIST No. 20
The Same Subject Continued
(The Insufficiency fo the Present Confederation to Preserve the
Union)
From the New York Packet.
Tuesday, December 11, 1787.
HAMILTON AND MADISON
To the People of the State of New York:
THE United Netherlands are a confederacy of republics, or rather
of aristocracies of a very remarkable texture, yet confirming all
the lessons derived from those which we have already reviewed.
The union is composed of seven coequal and sovereign states, and
each state or province is a composition of equal and independent
cities. In all important cases, not only the provinces but the
cities must be unanimous.
The sovereignty of the Union is represented by the
States-General, consisting usually of about fifty deputies appointed
by the provinces. They hold their seats, some for life, some for
six, three, and one years; from two provinces they continue in
appointment during pleasure.
The States-General have authority to enter into treaties and
alliances; to make war and peace; to raise armies and equip
fleets; to ascertain quotas and demand contributions. In all these
cases, however, unanimity and the sanction of their constituents are
requisite. They have authority to appoint and receive ambassadors;
to execute treaties and alliances already formed; to provide for
the collection of duties on imports and exports; to regulate the
mint, with a saving to the provincial rights; to govern as
sovereigns the dependent territories. The provinces are restrained,
unless with the general consent, from entering into foreign
treaties; from establishing imposts injurious to others, or
charging their neighbors with higher duties than their own subjects.
A council of state, a chamber of accounts, with five colleges of
admiralty, aid and fortify the federal administration.
The executive magistrate of the union is the stadtholder, who is
now an hereditary prince. His principal weight and influence in the
republic are derived from this independent title; from his great
patrimonial estates; from his family connections with some of the
chief potentates of Europe; and, more than all, perhaps, from his
being stadtholder in the several provinces, as well as for the
union; in which provincial quality he has the appointment of town
magistrates under certain regulations, executes provincial decrees,
presides when he pleases in the provincial tribunals, and has
throughout the power of pardon.
As stadtholder of the union, he has, however, considerable
prerogatives.
In his political capacity he has authority to settle disputes
between the provinces, when other methods fail; to assist at the
deliberations of the States-General, and at their particular
conferences; to give audiences to foreign ambassadors, and to keep
agents for his particular affairs at foreign courts.
In his military capacity he commands the federal troops,
provides for garrisons, and in general regulates military affairs;
disposes of all appointments, from colonels to ensigns, and of the
governments and posts of fortified towns.
In his marine capacity he is admiral-general, and superintends
and directs every thing relative to naval forces and other naval
affairs; presides in the admiralties in person or by proxy;
appoints lieutenant-admirals and other officers; and establishes
councils of war, whose sentences are not executed till he approves
them.
His revenue, exclusive of his private income, amounts to three
hundred thousand florins. The standing army which he commands
consists of about forty thousand men.
Such is the nature of the celebrated Belgic confederacy, as
delineated on parchment. What are the characters which practice has
stamped upon it? Imbecility in the government; discord among the
provinces; foreign influence and indignities; a precarious
existence in peace, and peculiar calamities from war.
It was long ago remarked by Grotius, that nothing but the hatred
of his countrymen to the house of Austria kept them from being
ruined by the vices of their constitution.
The union of Utrecht, says another respectable writer, reposes
an authority in the States-General, seemingly sufficient to secure
harmony, but the jealousy in each province renders the practice very
different from the theory.
The same instrument, says another, obliges each province to levy
certain contributions; but this article never could, and probably
never will, be executed; because the inland provinces, who have
little commerce, cannot pay an equal quota.
In matters of contribution, it is the practice to waive the
articles of the constitution. The danger of delay obliges the
consenting provinces to furnish their quotas, without waiting for
the others; and then to obtain reimbursement from the others, by
deputations, which are frequent, or otherwise, as they can. The
great wealth and influence of the province of Holland enable her to
effect both these purposes.
It has more than once happened, that the deficiencies had to be
ultimately collected at the point of the bayonet; a thing
practicable, though dreadful, in a confedracy where one of the
members exceeds in force all the rest, and where several of them are
too small to meditate resistance; but utterly impracticable in one
composed of members, several of which are equal to each other in
strength and resources, and equal singly to a vigorous and
persevering defense.
Foreign ministers, says Sir William Temple, who was himself a
foreign minister, elude matters taken ad referendum, by
tampering with the provinces and cities. In 1726, the treaty of
Hanover was delayed by these means a whole year. Instances of a
like nature are numerous and notorious.
In critical emergencies, the States-General are often compelled
to overleap their constitutional bounds. In 1688, they concluded a
treaty of themselves at the risk of their heads. The treaty of
Westphalia, in 1648, by which their independence was formerly and
finally recognized, was concluded without the consent of Zealand.
Even as recently as the last treaty of peace with Great Britain,
the constitutional principle of unanimity was departed from. A weak
constitution must necessarily terminate in dissolution, for want of
proper powers, or the usurpation of powers requisite for the public
safety. Whether the usurpation, when once begun, will stop at the
salutary point, or go forward to the dangerous extreme, must depend
on the contingencies of the moment. Tyranny has perhaps oftener
grown out of the assumptions of power, called for, on pressing
exigencies, by a defective constitution, than out of the full
exercise of the largest constitutional authorities.
Notwithstanding the calamities produced by the stadtholdership,
it has been supposed that without his influence in the individual
provinces, the causes of anarchy manifest in the confederacy would
long ago have dissolved it. ``Under such a government,'' says the
Abbe Mably, ``the Union could never have subsisted, if the provinces
had not a spring within themselves, capable of quickening their
tardiness, and compelling them to the same way of thinking. This
spring is the stadtholder.'' It is remarked by Sir William Temple,
``that in the intermissions of the stadtholdership, Holland, by her
riches and her authority, which drew the others into a sort of
dependence, supplied the place.''
These are not the only circumstances which have controlled the
tendency to anarchy and dissolution. The surrounding powers impose
an absolute necessity of union to a certain degree, at the same time
that they nourish by their intrigues the constitutional vices which
keep the republic in some degree always at their mercy.
The true patriots have long bewailed the fatal tendency of these
vices, and have made no less than four regular experiments by
EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply
a remedy. As many times has their laudable zeal found it impossible
to UNITE THE PUBLIC COUNCILS in reforming the known, the
acknowledged, the fatal evils of the existing constitution. Let us
pause, my fellow-citizens, for one moment, over this melancholy and
monitory lesson of history; and with the tear that drops for the
calamities brought on mankind by their adverse opinions and selfish
passions, let our gratitude mingle an ejaculation to Heaven, for the
propitious concord which has distinguished the consultations for our
political happiness.
A design was also conceived of establishing a general tax to be
administered by the federal authority. This also had its
adversaries and failed.
This unhappy people seem to be now suffering from popular
convulsions, from dissensions among the states, and from the actual
invasion of foreign arms, the crisis of their distiny. All nations
have their eyes fixed on the awful spectacle. The first wish
prompted by humanity is, that this severe trial may issue in such a
revolution of their government as will establish their union, and
render it the parent of tranquillity, freedom and happiness: The
next, that the asylum under which, we trust, the enjoyment of these
blessings will speedily be secured in this country, may receive and
console them for the catastrophe of their own.
I make no apology for having dwelt so long on the contemplation
of these federal precedents. Experience is the oracle of truth;
and where its responses are unequivocal, they ought to be
conclusive and sacred. The important truth, which it unequivocally
pronounces in the present case, is that a sovereignty over
sovereigns, a government over governments, a legislation for
communities, as contradistinguished from individuals, as it is a
solecism in theory, so in practice it is subversive of the order and
ends of civil polity, by substituting VIOLENCE in place of LAW, or
the destructive COERCION of the SWORD in place of the mild and
salutary COERCION of the MAGISTRACY.
PUBLIUS.
FEDERALIST No. 21
Other Defects of the Present Confederation
For the Independent Journal.
HAMILTON
To the People of the State of New York:
HAVING in the three last numbers taken a summary review of the
principal circumstances and events which have depicted the genius
and fate of other confederate governments, I shall now proceed in
the enumeration of the most important of those defects which have
hitherto disappointed our hopes from the system established among
ourselves. To form a safe and satisfactory judgment of the proper
remedy, it is absolutely necessary that we should be well acquainted
with the extent and malignity of the disease.
The next most palpable defect of the subsisting Confederation,
is the total want of a SANCTION to its laws. The United States, as
now composed, have no powers to exact obedience, or punish
disobedience to their resolutions, either by pecuniary mulcts, by a
suspension or divestiture of privileges, or by any other
constitutional mode. There is no express delegation of authority to
them to use force against delinquent members; and if such a right
should be ascribed to the federal head, as resulting from the nature
of the social compact between the States, it must be by inference
and construction, in the face of that part of the second article, by
which it is declared, ``that each State shall retain every power,
jurisdiction, and right, not EXPRESSLY delegated to the United
States in Congress assembled.'' There is, doubtless, a striking
absurdity in supposing that a right of this kind does not exist, but
we are reduced to the dilemma either of embracing that supposition,
preposterous as it may seem, or of contravening or explaining away a
provision, which has been of late a repeated theme of the eulogies
of those who oppose the new Constitution; and the want of which, in
that plan, has been the subject of much plausible animadversion, and
severe criticism. If we are unwilling to impair the force of this
applauded provision, we shall be obliged to conclude, that the
United States afford the extraordinary spectacle of a government
destitute even of the shadow of constitutional power to enforce the
execution of its own laws. It will appear, from the specimens which
have been cited, that the American Confederacy, in this particular,
stands discriminated from every other institution of a similar kind,
and exhibits a new and unexampled phenomenon in the political world.
The want of a mutual guaranty of the State governments is
another capital imperfection in the federal plan. There is nothing
of this kind declared in the articles that compose it; and to imply
a tacit guaranty from considerations of utility, would be a still
more flagrant departure from the clause which has been mentioned,
than to imply a tacit power of coercion from the like considerations
. The want of a guaranty, though it might in its consequences
endanger the Union, does not so immediately attack its existence as
the want of a constitutional sanction to its laws.
Without a guaranty the assistance to be derived from the Union
in repelling those domestic dangers which may sometimes threaten the
existence of the State constitutions, must be renounced. Usurpation
may rear its crest in each State, and trample upon the liberties of
the people, while the national government could legally do nothing
more than behold its encroachments with indignation and regret. A
successful faction may erect a tyranny on the ruins of order and
law, while no succor could constitutionally be afforded by the Union
to the friends and supporters of the government. The tempestuous
situation from which Massachusetts has scarcely emerged, evinces
that dangers of this kind are not merely speculative. Who can
determine what might have been the issue of her late convulsions, if
the malcontents had been headed by a Caesar or by a Cromwell? Who
can predict what effect a despotism, established in Massachusetts,
would have upon the liberties of New Hampshire or Rhode Island, of
Connecticut or New York?
The inordinate pride of State importance has suggested to some
minds an objection to the principle of a guaranty in the federal
government, as involving an officious interference in the domestic
concerns of the members. A scruple of this kind would deprive us of
one of the principal advantages to be expected from union, and can
only flow from a misapprehension of the nature of the provision
itself. It could be no impediment to reforms of the State
constitution by a majority of the people in a legal and peaceable
mode. This right would remain undiminished. The guaranty could
only operate against changes to be effected by violence. Towards
the preventions of calamities of this kind, too many checks cannot
be provided. The peace of society and the stability of government
depend absolutely on the efficacy of the precautions adopted on this
head. Where the whole power of the government is in the hands of
the people, there is the less pretense for the use of violent
remedies in partial or occasional distempers of the State. The
natural cure for an ill-administration, in a popular or
representative constitution, is a change of men. A guaranty by the
national authority would be as much levelled against the usurpations
of rulers as against the ferments and outrages of faction and
sedition in the community.
The principle of regulating the contributions of the States to
the common treasury by QUOTAS is another fundamental error in the
Confederation. Its repugnancy to an adequate supply of the national
exigencies has been already pointed out, and has sufficiently
appeared from the trial which has been made of it. I speak of it
now solely with a view to equality among the States. Those who have
been accustomed to contemplate the circumstances which produce and
constitute national wealth, must be satisfied that there is no
common standard or barometer by which the degrees of it can be
ascertained. Neither the value of lands, nor the numbers of the
people, which have been successively proposed as the rule of State
contributions, has any pretension to being a just representative.
If we compare the wealth of the United Netherlands with that of
Russia or Germany, or even of France, and if we at the same time
compare the total value of the lands and the aggregate population of
that contracted district with the total value of the lands and the
aggregate population of the immense regions of either of the three
last-mentioned countries, we shall at once discover that there is no
comparison between the proportion of either of these two objects and
that of the relative wealth of those nations. If the like parallel
were to be run between several of the American States, it would
furnish a like result. Let Virginia be contrasted with North
Carolina, Pennsylvania with Connecticut, or Maryland with New
Jersey, and we shall be convinced that the respective abilities of
those States, in relation to revenue, bear little or no analogy to
their comparative stock in lands or to their comparative population.
The position may be equally illustrated by a similar process
between the counties of the same State. No man who is acquainted
with the State of New York will doubt that the active wealth of
King's County bears a much greater proportion to that of Montgomery
than it would appear to be if we should take either the total value
of the lands or the total number of the people as a criterion!
The wealth of nations depends upon an infinite variety of causes.
Situation, soil, climate, the nature of the productions, the
nature of the government, the genius of the citizens, the degree of
information they possess, the state of commerce, of arts, of
industry, these circumstances and many more, too complex, minute, or
adventitious to admit of a particular specification, occasion
differences hardly conceivable in the relative opulence and riches
of different countries. The consequence clearly is that there can
be no common measure of national wealth, and, of course, no general
or stationary rule by which the ability of a state to pay taxes can
be determined. The attempt, therefore, to regulate the
contributions of the members of a confederacy by any such rule,
cannot fail to be productive of glaring inequality and extreme
oppression.
This inequality would of itself be sufficient in America to work
the eventual destruction of the Union, if any mode of enforcing a
compliance with its requisitions could be devised. The suffering
States would not long consent to remain associated upon a principle
which distributes the public burdens with so unequal a hand, and
which was calculated to impoverish and oppress the citizens of some
States, while those of others would scarcely be conscious of the
small proportion of the weight they were required to sustain. This,
however, is an evil inseparable from the principle of quotas and
requisitions.
There is no method of steering clear of this inconvenience, but
by authorizing the national government to raise its own revenues in
its own way. Imposts, excises, and, in general, all duties upon
articles of consumption, may be compared to a fluid, which will, in
time, find its level with the means of paying them. The amount to
be contributed by each citizen will in a degree be at his own
option, and can be regulated by an attention to his resources. The
rich may be extravagant, the poor can be frugal; and private
oppression may always be avoided by a judicious selection of objects
proper for such impositions. If inequalities should arise in some
States from duties on particular objects, these will, in all
probability, be counterbalanced by proportional inequalities in
other States, from the duties on other objects. In the course of
time and things, an equilibrium, as far as it is attainable in so
complicated a subject, will be established everywhere. Or, if
inequalities should still exist, they would neither be so great in
their degree, so uniform in their operation, nor so odious in their
appearance, as those which would necessarily spring from quotas,
upon any scale that can possibly be devised.
It is a signal advantage of taxes on articles of consumption,
that they contain in their own nature a security against excess.
They prescribe their own limit; which cannot be exceeded without
defeating the end proposed, that is, an extension of the revenue.
When applied to this object, the saying is as just as it is witty,
that, ``in political arithmetic, two and two do not always make four
.'' If duties are too high, they lessen the consumption; the
collection is eluded; and the product to the treasury is not so
great as when they are confined within proper and moderate bounds.
This forms a complete barrier against any material oppression of
the citizens by taxes of this class, and is itself a natural
limitation of the power of imposing them.
Impositions of this kind usually fall under the denomination of
indirect taxes, and must for a long time constitute the chief part
of the revenue raised in this country. Those of the direct kind,
which principally relate to land and buildings, may admit of a rule
of apportionment. Either the value of land, or the number of the
people, may serve as a standard. The state of agriculture and the
populousness of a country have been considered as nearly connected
with each other. And, as a rule, for the purpose intended, numbers,
in the view of simplicity and certainty, are entitled to a
preference. In every country it is a herculean task to obtain a
valuation of the land; in a country imperfectly settled and
progressive in improvement, the difficulties are increased almost to
impracticability. The expense of an accurate valuation is, in all
situations, a formidable objection. In a branch of taxation where
no limits to the discretion of the government are to be found in the
nature of things, the establishment of a fixed rule, not
incompatible with the end, may be attended with fewer inconveniences
than to leave that discretion altogether at large.
PUBLIUS.
FEDERALIST No. 22
The Same Subject Continued
(Other Defects of the Present Confederation)
From the New York Packet.
Friday, December 14, 1787.
HAMILTON
To the People of the State of New York:
IN ADDITION to the defects already enumerated in the existing
federal system, there are others of not less importance, which
concur in rendering it altogether unfit for the administration of
the affairs of the Union.
The want of a power to regulate commerce is by all parties
allowed to be of the number. The utility of such a power has been
anticipated under the first head of our inquiries; and for this
reason, as well as from the universal conviction entertained upon
the subject, little need be added in this place. It is indeed
evident, on the most superficial view, that there is no object,
either as it respects the interests of trade or finance, that more
strongly demands a federal superintendence. The want of it has
already operated as a bar to the formation of beneficial treaties
with foreign powers, and has given occasions of dissatisfaction
between the States. No nation acquainted with the nature of our
political association would be unwise enough to enter into
stipulations with the United States, by which they conceded
privileges of any importance to them, while they were apprised that
the engagements on the part of the Union might at any moment be
violated by its members, and while they found from experience that
they might enjoy every advantage they desired in our markets,
without granting us any return but such as their momentary
convenience might suggest. It is not, therefore, to be wondered at
that Mr. Jenkinson, in ushering into the House of Commons a bill for
regulating the temporary intercourse between the two countries,
should preface its introduction by a declaration that similar
provisions in former bills had been found to answer every purpose to
the commerce of Great Britain, and that it would be prudent to
persist in the plan until it should appear whether the American
government was likely or not to acquire greater consistency. [1]
Several States have endeavored, by separate prohibitions,
restrictions, and exclusions, to influence the conduct of that
kingdom in this particular, but the want of concert, arising from
the want of a general authority and from clashing and dissimilar
views in the State, has hitherto frustrated every experiment of the
kind, and will continue to do so as long as the same obstacles to a
uniformity of measures continue to exist.
The interfering and unneighborly regulations of some States,
contrary to the true spirit of the Union, have, in different
instances, given just cause of umbrage and complaint to others, and
it is to be feared that examples of this nature, if not restrained
by a national control, would be multiplied and extended till they
became not less serious sources of animosity and discord than
injurious impediments to the intcrcourse between the different parts
of the Confederacy. ``The commerce of the German empire [2] is in
continual trammels from the multiplicity of the duties which the
several princes and states exact upon the merchandises passing
through their territories, by means of which the fine streams and
navigable rivers with which Germany is so happily watered are
rendered almost useless.'' Though the genius of the people of this
country might never permit this description to be strictly
applicable to us, yet we may reasonably expect, from the gradual
conflicts of State regulations, that the citizens of each would at
length come to be considered and treated by the others in no better
light than that of foreigners and aliens.
The power of raising armies, by the most obvious construction of
the articles of the Confederation, is merely a power of making
requisitions upon the States for quotas of men. This practice in
the course of the late war, was found replete with obstructions to a
vigorous and to an economical system of defense. It gave birth to a
competition between the States which created a kind of auction for
men. In order to furnish the quotas required of them, they outbid
each other till bounties grew to an enormous and insupportable size.
The hope of a still further increase afforded an inducement to
those who were disposed to serve to procrastinate their enlistment,
and disinclined them from engaging for any considerable periods.
Hence, slow and scanty levies of men, in the most critical
emergencies of our affairs; short enlistments at an unparalleled
expense; continual fluctuations in the troops, ruinous to their
discipline and subjecting the public safety frequently to the
perilous crisis of a disbanded army. Hence, also, those oppressive
expedients for raising men which were upon several occasions
practiced, and which nothing but the enthusiasm of liberty would
have induced the people to endure.
This method of raising troops is not more unfriendly to economy
and vigor than it is to an equal distribution of the burden. The
States near the seat of war, influenced by motives of
self-preservation, made efforts to furnish their quotas, which even
exceeded their abilities; while those at a distance from danger
were, for the most part, as remiss as the others were diligent, in
their exertions. The immediate pressure of this inequality was not
in this case, as in that of the contributions of money, alleviated
by the hope of a final liquidation. The States which did not pay
their proportions of money might at least be charged with their
deficiencies; but no account could be formed of the deficiencies in
the supplies of men. We shall not, however, see much reason to
reget the want of this hope, when we consider how little prospect
there is, that the most delinquent States will ever be able to make
compensation for their pecuniary failures. The system of quotas and
requisitions, whether it be applied to men or money, is, in every
view, a system of imbecility in the Union, and of inequality and
injustice among the members.
The right of equal suffrage among the States is another
exceptionable part of the Confederation. Every idea of proportion
and every rule of fair representation conspire to condemn a
principle, which gives to Rhode Island an equal weight in the scale
of power with Massachusetts, or Connecticut, or New York; and to
Deleware an equal voice in the national deliberations with
Pennsylvania, or Virginia, or North Carolina. Its operation
contradicts the fundamental maxim of republican government, which
requires that the sense of the majority should prevail. Sophistry
may reply, that sovereigns are equal, and that a majority of the
votes of the States will be a majority of confederated America. But
this kind of logical legerdemain will never counteract the plain
suggestions of justice and common-sense. It may happen that this
majority of States is a small minority of the people of
America [3]; and two thirds of the people of America could not
long be persuaded, upon the credit of artificial distinctions and
syllogistic subtleties, to submit their interests to the management
and disposal of one third. The larger States would after a while
revolt from the idea of receiving the law from the smaller. To
acquiesce in such a privation of their due importance in the
political scale, would be not merely to be insensible to the love of
power, but even to sacrifice the desire of equality. It is neither
rational to expect the first, nor just to require the last. The
smaller States, considering how peculiarly their safety and welfare
depend on union, ought readily to renounce a pretension which, if
not relinquished, would prove fatal to its duration.
It may be objected to this, that not seven but nine States, or
two thirds of the whole number, must consent to the most important
resolutions; and it may be thence inferred that nine States would
always comprehend a majority of the Union. But this does not
obviate the impropriety of an equal vote between States of the most
unequal dimensions and populousness; nor is the inference accurate
in point of fact; for we can enumerate nine States which contain
less than a majority of the people [4]; and it is constitutionally
possible that these nine may give the vote. Besides, there are
matters of considerable moment determinable by a bare majority; and
there are others, concerning which doubts have been entertained,
which, if interpreted in favor of the sufficiency of a vote of seven
States, would extend its operation to interests of the first
magnitude. In addition to this, it is to be observed that there is
a probability of an increase in the number of States, and no
provision for a proportional augmentation of the ratio of votes.
But this is not all: what at first sight may seem a remedy, is,
in reality, a poison. To give a minority a negative upon the
majority (which is always the case where more than a majority is
requisite to a decision), is, in its tendency, to subject the sense
of the greater number to that of the lesser. Congress, from the
nonattendance of a few States, have been frequently in the situation
of a Polish diet, where a single VOTE has been sufficient to put a
stop to all their movements. A sixtieth part of the Union, which is
about the proportion of Delaware and Rhode Island, has several times
been able to oppose an entire bar to its operations. This is one of
those refinements which, in practice, has an effect the reverse of
what is expected from it in theory. The necessity of unanimity in
public bodies, or of something approaching towards it, has been
founded upon a supposition that it would contribute to security.
But its real operation is to embarrass the administration, to
destroy the energy of the government, and to substitute the
pleasure, caprice, or artifices of an insignificant, turbulent, or
corrupt junto, to the regular deliberations and decisions of a
respectable majority. In those emergencies of a nation, in which
the goodness or badness, the weakness or strength of its government,
is of the greatest importance, there is commonly a necessity for
action. The public business must, in some way or other, go forward.
If a pertinacious minority can control the opinion of a majority,
respecting the best mode of conducting it, the majority, in order
that something may be done, must conform to the views of the
minority; and thus the sense of the smaller number will overrule
that of the greater, and give a tone to the national proceedings.
Hence, tedious delays; continual negotiation and intrigue;
contemptible compromises of the public good. And yet, in such a
system, it is even happy when such compromises can take place: for
upon some occasions things will not admit of accommodation; and
then the measures of government must be injuriously suspended, or
fatally defeated. It is often, by the impracticability of obtaining
the concurrence of the necessary number of votes, kept in a state of
inaction. Its situation must always savor of weakness, sometimes
border upon anarchy.
It is not difficult to discover, that a principle of this kind
gives greater scope to foreign corruption, as well as to domestic
faction, than that which permits the sense of the majority to
decide; though the contrary of this has been presumed. The mistake
has proceeded from not attending with due care to the mischiefs that
may be occasioned by obstructing the progress of government at
certain critical seasons. When the concurrence of a large number is
required by the Constitution to the doing of any national act, we
are apt to rest satisfied that all is safe, because nothing improper
will be likely TO BE DONE, but we forget how much good may be
prevented, and how much ill may be produced, by the power of
hindering the doing what may be necessary, and of keeping affairs in
the same unfavorable posture in which they may happen to stand at
particular periods.
Suppose, for instance, we were engaged in a war, in conjunction
with one foreign nation, against another. Suppose the necessity of
our situation demanded peace, and the interest or ambition of our
ally led him to seek the prosecution of the war, with views that
might justify us in making separate terms. In such a state of
things, this ally of ours would evidently find it much easier, by
his bribes and intrigues, to tie up the hands of government from
making peace, where two thirds of all the votes were requisite to
that object, than where a simple majority would suffice. In the
first case, he would have to corrupt a smaller number; in the last,
a greater number. Upon the same principle, it would be much easier
for a foreign power with which we were at war to perplex our
councils and embarrass our exertions. And, in a commercial view, we
may be subjected to similar inconveniences. A nation, with which we
might have a treaty of commerce, could with much greater facility
prevent our forming a connection with her competitor in trade,
though such a connection should be ever so beneficial to ourselves.
Evils of this description ought not to be regarded as imaginary.
One of the weak sides of republics, among their numerous
advantages, is that they afford too easy an inlet to foreign
corruption. An hereditary monarch, though often disposed to
sacrifice his subjects to his ambition, has so great a personal
interest in the government and in the external glory of the nation,
that it is not easy for a foreign power to give him an equivalent
for what he would sacrifice by treachery to the state. The world
has accordingly been witness to few examples of this species of
royal prostitution, though there have been abundant specimens of
every other kind.
In republics, persons elevated from the mass of the community,
by the suffrages of their fellow-citizens, to stations of great
pre-eminence and power, may find compensations for betraying their
trust, which, to any but minds animated and guided by superior
virtue, may appear to exceed the proportion of interest they have in
the common stock, and to overbalance the obligations of duty. Hence
it is that history furnishes us with so many mortifying examples of
the prevalency of foreign corruption in republican governments. How
much this contributed to the ruin of the ancient commonwealths has
been already delineated. It is well known that the deputies of the
United Provinces have, in various instances, been purchased by the
emissaries of the neighboring kingdoms. The Earl of Chesterfield
(if my memory serves me right), in a letter to his court, intimates
that his success in an important negotiation must depend on his
obtaining a major's commission for one of those deputies. And in
Sweden the parties were alternately bought by France and England in
so barefaced and notorious a manner that it excited universal
disgust in the nation, and was a principal cause that the most
limited monarch in Europe, in a single day, without tumult,
violence, or opposition, became one of the most absolute and
uncontrolled.
A circumstance which crowns the defects of the Confederation
remains yet to be mentioned, the want of a judiciary power. Laws
are a dead letter without courts to expound and define their true
meaning and operation. The treaties of the United States, to have
any force at all, must be considered as part of the law of the land.
Their true import, as far as respects individuals, must, like all
other laws, be ascertained by judicial determinations. To produce
uniformity in these determinations, they ought to be submitted, in
the last resort, to one SUPREME TRIBUNAL. And this tribunal ought
to be instituted under the same authority which forms the treaties
themselves. These ingredients are both indispensable. If there is
in each State a court of final jurisdiction, there may be as many
different final determinations on the same point as there are courts.
There are endless diversities in the opinions of men. We often
see not only different courts but the judges of the came court
differing from each other. To avoid the confusion which would
unavoidably result from the contradictory decisions of a number of
independent judicatories, all nations have found it necessary to
establish one court paramount to the rest, possessing a general
superintendence, and authorized to settle and declare in the last
resort a uniform rule of civil justice.
This is the more necessary where the frame of the government is
so compounded that the laws of the whole are in danger of being
contravened by the laws of the parts. In this case, if the
particular tribunals are invested with a right of ultimate
jurisdiction, besides the contradictions to be expected from
difference of opinion, there will be much to fear from the bias of
local views and prejudices, and from the interference of local
regulations. As often as such an interference was to happen, there
would be reason to apprehend that the provisions of the particular
laws might be preferred to those of the general laws; for nothing
is more natural to men in office than to look with peculiar
deference towards that authority to which they owe their official
existence. The treaties of the United States, under the present
Constitution, are liable to the infractions of thirteen different
legislatures, and as many different courts of final jurisdiction,
acting under the authority of those legislatures. The faith, the
reputation, the peace of the whole Union, are thus continually at
the mercy of the prejudices, the passions, and the interests of
every member of which it is composed. Is it possible that foreign
nations can either respect or confide in such a government? Is it
possible that the people of America will longer consent to trust
their honor, their happiness, their safety, on so precarious a
foundation?
In this review of the Confederation, I have confined myself to
the exhibition of its most material defects; passing over those
imperfections in its details by which even a great part of the power
intended to be conferred upon it has been in a great measure
rendered abortive. It must be by this time evident to all men of
reflection, who can divest themselves of the prepossessions of
preconceived opinions, that it is a system so radically vicious and
unsound, as to admit not of amendment but by an entire change in its
leading features and characters.
The organization of Congress is itself utterly improper for the
exercise of those powers which are necessary to be deposited in the
Union. A single assembly may be a proper receptacle of those
slender, or rather fettered, authorities, which have been heretofore
delegated to the federal head; but it would be inconsistent with
all the principles of good government, to intrust it with those
additional powers which, even the moderate and more rational
adversaries of the proposed Constitution admit, ought to reside in
the United States. If that plan should not be adopted, and if the
necessity of the Union should be able to withstand the ambitious
aims of those men who may indulge magnificent schemes of personal
aggrandizement from its dissolution, the probability would be, that
we should run into the project of conferring supplementary powers
upon Congress, as they are now constituted; and either the machine,
from the intrinsic feebleness of its structure, will moulder into
pieces, in spite of our ill-judged efforts to prop it; or, by
successive augmentations of its force an energy, as necessity might
prompt, we shall finally accumulate, in a single body, all the most
important prerogatives of sovereignty, and thus entail upon our
posterity one of the most execrable forms of government that human
infatuation ever contrived. Thus, we should create in reality that
very tyranny which the adversaries of the new Constitution either
are, or affect to be, solicitous to avert.
It has not a little contributed to the infirmities of the
existing federal system, that it never had a ratification by the
PEOPLE. Resting on no better foundation than the consent of the
several legislatures, it has been exposed to frequent and intricate
questions concerning the validity of its powers, and has, in some
instances, given birth to the enormous doctrine of a right of
legislative repeal. Owing its ratification to the law of a State,
it has been contended that the same authority might repeal the law
by which it was ratified. However gross a heresy it may be to
maintain that a PARTY to a COMPACT has a right to revoke that
COMPACT, the doctrine itself has had respectable advocates. The
possibility of a question of this nature proves the necessity of
laying the foundations of our national government deeper than in the
mere sanction of delegated authority. The fabric of American empire
ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The
streams of national power ought to flow immediately from that pure,
original fountain of all legitimate authority.
PUBLIUS.
FNA1-@1 This, as nearly as I can recollect, was the sense of his
speech on introducing the last bill.
FNA1-@2 Encyclopedia, article ``Empire.''
FNA1-@3 New Hampshire, Rhode Island, New Jersey, Delaware, Georgia,
South Carolina, and Maryland are a majority of the whole number of
the States, but they do not contain one third of the people.
FNA1-@4 Add New York and Connecticut to the foregoing seven, and they
will be less than a majority.
FEDERALIST No. 23
The Necessity of a Government as Energetic as the One Proposed to
the Preservation of the Union
From the New York Packet.
Tuesday, December 18, 1787.
HAMILTON
To the People of the State of New York:
THE necessity of a Constitution, at least equally energetic with
the one proposed, to the preservation of the Union, is the point at
the examination of which we are now arrived.
This inquiry will naturally divide itself into three
branches the objects to be provided for by the federal government,
the quantity of power necessary to the accomplishment of those
objects, the persons upon whom that power ought to operate. Its
distribution and organization will more properly claim our attention
under the succeeding head.
The principal purposes to be answered by union are these the
common defense of the members; the preservation of the public peace
as well against internal convulsions as external attacks; the
regulation of commerce with other nations and between the States;
the superintendence of our intercourse, political and commercial,
with foreign countries.
The authorities essential to the common defense are these: to
raise armies; to build and equip fleets; to prescribe rules for
the government of both; to direct their operations; to provide for
their support. These powers ought to exist without limitation,
BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY
OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF
THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances
that endanger the safety of nations are infinite, and for this
reason no constitutional shackles can wisely be imposed on the power
to which the care of it is committed. This power ought to be
coextensive with all the possible combinations of such
circumstances; and ought to be under the direction of the same
councils which are appointed to preside over the common defense.
This is one of those truths which, to a correct and unprejudiced
mind, carries its own evidence along with it; and may be obscured,
but cannot be made plainer by argument or reasoning. It rests upon
axioms as simple as they are universal; the MEANS ought to be
proportioned to the END; the persons, from whose agency the
attainment of any END is expected, ought to possess the MEANS by
which it is to be attained.
Whether there ought to be a federal government intrusted with
the care of the common defense, is a question in the first instance,
open for discussion; but the moment it is decided in the
affirmative, it will follow, that that government ought to be
clothed with all the powers requisite to complete execution of its
trust. And unless it can be shown that the circumstances which may
affect the public safety are reducible within certain determinate
limits; unless the contrary of this position can be fairly and
rationally disputed, it must be admitted, as a necessary
consequence, that there can be no limitation of that authority which
is to provide for the defense and protection of the community, in
any matter essential to its efficacy that is, in any matter
essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL
FORCES.
Defective as the present Confederation has been proved to be,
this principle appears to have been fully recognized by the framers
of it; though they have not made proper or adequate provision for
its exercise. Congress have an unlimited discretion to make
requisitions of men and money; to govern the army and navy; to
direct their operations. As their requisitions are made
constitutionally binding upon the States, who are in fact under the
most solemn obligations to furnish the supplies required of them,
the intention evidently was that the United States should command
whatever resources were by them judged requisite to the ``common
defense and general welfare.'' It was presumed that a sense of
their true interests, and a regard to the dictates of good faith,
would be found sufficient pledges for the punctual performance of
the duty of the members to the federal head.
The experiment has, however, demonstrated that this expectation
was ill-founded and illusory; and the observations, made under the
last head, will, I imagine, have sufficed to convince the impartial
and discerning, that there is an absolute necessity for an entire
change in the first principles of the system; that if we are in
earnest about giving the Union energy and duration, we must abandon
the vain project of legislating upon the States in their collective
capacities; we must extend the laws of the federal government to
the individual citizens of America; we must discard the fallacious
scheme of quotas and requisitions, as equally impracticable and
unjust. The result from all this is that the Union ought to be
invested with full power to levy troops; to build and equip fleets;
and to raise the revenues which will be required for the formation
and support of an army and navy, in the customary and ordinary modes
practiced in other governments.
If the circumstances of our country are such as to demand a
compound instead of a simple, a confederate instead of a sole,
government, the essential point which will remain to be adjusted
will be to discriminate the OBJECTS, as far as it can be done, which
shall appertain to the different provinces or departments of power;
allowing to each the most ample authority for fulfilling the
objects committed to its charge. Shall the Union be constituted the
guardian of the common safety? Are fleets and armies and revenues
necessary to this purpose? The government of the Union must be
empowered to pass all laws, and to make all regulations which have
relation to them. The same must be the case in respect to commerce,
and to every other matter to which its jurisdiction is permitted to
extend. Is the administration of justice between the citizens of
the same State the proper department of the local governments?
These must possess all the authorities which are connected with
this object, and with every other that may be allotted to their
particular cognizance and direction. Not to confer in each case a
degree of power commensurate to the end, would be to violate the
most obvious rules of prudence and propriety, and improvidently to
trust the great interests of the nation to hands which are disabled
from managing them with vigor and success.
Who is likely to make suitable provisions for the public
defense, as that body to which the guardianship of the public safety
is confided; which, as the centre of information, will best
understand the extent and urgency of the dangers that threaten; as
the representative of the WHOLE, will feel itself most deeply
interested in the preservation of every part; which, from the
responsibility implied in the duty assigned to it, will be most
sensibly impressed with the necessity of proper exertions; and
which, by the extension of its authority throughout the States, can
alone establish uniformity and concert in the plans and measures by
which the common safety is to be secured? Is there not a manifest
inconsistency in devolving upon the federal government the care of
the general defense, and leaving in the State governments the
EFFECTIVE powers by which it is to be provided for? Is not a want
of co-operation the infallible consequence of such a system? And
will not weakness, disorder, an undue distribution of the burdens
and calamities of war, an unnecessary and intolerable increase of
expense, be its natural and inevitable concomitants? Have we not
had unequivocal experience of its effects in the course of the
revolution which we have just accomplished?
Every view we may take of the subject, as candid inquirers after
truth, will serve to convince us, that it is both unwise and
dangerous to deny the federal government an unconfined authority, as
to all those objects which are intrusted to its management. It will
indeed deserve the most vigilant and careful attention of the
people, to see that it be modeled in such a manner as to admit of
its being safely vested with the requisite powers. If any plan
which has been, or may be, offered to our consideration, should not,
upon a dispassionate inspection, be found to answer this
description, it ought to be rejected. A government, the
constitution of which renders it unfit to be trusted with all the
powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT,
would be an unsafe and improper depositary of the NATIONAL INTERESTS.
Wherever THESE can with propriety be confided, the coincident
powers may safely accompany them. This is the true result of all
just reasoning upon the subject. And the adversaries of the plan
promulgated by the convention ought to have confined themselves to
showing, that the internal structure of the proposed government was
such as to render it unworthy of the confidence of the people. They
ought not to have wandered into inflammatory declamations and
unmeaning cavils about the extent of the powers. The POWERS are not
too extensive for the OBJECTS of federal administration, or, in
other words, for the management of our NATIONAL INTERESTS; nor can
any satisfactory argument be framed to show that they are chargeable
with such an excess. If it be true, as has been insinuated by some
of the writers on the other side, that the difficulty arises from
the nature of the thing, and that the extent of the country will not
permit us to form a government in which such ample powers can safely
be reposed, it would prove that we ought to contract our views, and
resort to the expedient of separate confederacies, which will move
within more practicable spheres. For the absurdity must continually
stare us in the face of confiding to a government the direction of
the most essential national interests, without daring to trust it to
the authorities which are indispensible to their proper and
efficient management. Let us not attempt to reconcile
contradictions, but firmly embrace a rational alternative.
I trust, however, that the impracticability of one general
system cannot be shown. I am greatly mistaken, if any thing of
weight has yet been advanced of this tendency; and I flatter
myself, that the observations which have been made in the course of
these papers have served to place the reverse of that position in as
clear a light as any matter still in the womb of time and experience
can be susceptible of. This, at all events, must be evident, that
the very difficulty itself, drawn from the extent of the country, is
the strongest argument in favor of an energetic government; for any
other can certainly never preserve the Union of so large an empire.
If we embrace the tenets of those who oppose the adoption of the
proposed Constitution, as the standard of our political creed, we
cannot fail to verify the gloomy doctrines which predict the
impracticability of a national system pervading entire limits of the
present Confederacy.
PUBLIUS.
FEDERALIST No. 24
The Powers Necessary to the Common Defense Further Considered
For the Independent Journal.
HAMILTON
To the People of the State of New York:
To THE powers proposed to be conferred upon the federal
government, in respect to the creation and direction of the national
forces, I have met with but one specific objection, which, if I
understand it right, is this, that proper provision has not been
made against the existence of standing armies in time of peace; an
objection which, I shall now endeavor to show, rests on weak and
unsubstantial foundations.
It has indeed been brought forward in the most vague and general
form, supported only by bold assertions, without the appearance of
argument; without even the sanction of theoretical opinions; in
contradiction to the practice of other free nations, and to the
general sense of America, as expressed in most of the existing
constitutions. The proprietory of this remark will appear, the
moment it is recollected that the objection under consideration
turns upon a supposed necessity of restraining the LEGISLATIVE
authority of the nation, in the article of military establishments;
a principle unheard of, except in one or two of our State
constitutions, and rejected in all the rest.
A stranger to our politics, who was to read our newspapers at
the present juncture, without having previously inspected the plan
reported by the convention, would be naturally led to one of two
conclusions: either that it contained a positive injunction, that
standing armies should be kept up in time of peace; or that it
vested in the EXECUTIVE the whole power of levying troops, without
subjecting his discretion, in any shape, to the control of the
legislature.
If he came afterwards to peruse the plan itself, he would be
surprised to discover, that neither the one nor the other was the
case; that the whole power of raising armies was lodged in the
LEGISLATURE, not in the EXECUTIVE; that this legislature was to be
a popular body, consisting of the representatives of the people
periodically elected; and that instead of the provision he had
supposed in favor of standing armies, there was to be found, in
respect to this object, an important qualification even of the
legislative discretion, in that clause which forbids the
appropriation of money for the support of an army for any longer
period than two years a precaution which, upon a nearer view of it,
will appear to be a great and real security against the keeping up
of troops without evident necessity.
Disappointed in his first surmise, the person I have supposed
would be apt to pursue his conjectures a little further. He would
naturally say to himself, it is impossible that all this vehement
and pathetic declamation can be without some colorable pretext. It
must needs be that this people, so jealous of their liberties, have,
in all the preceding models of the constitutions which they have
established, inserted the most precise and rigid precautions on this
point, the omission of which, in the new plan, has given birth to
all this apprehension and clamor.
If, under this impression, he proceeded to pass in review the
several State constitutions, how great would be his disappointment
to find that TWO ONLY of them [1] contained an interdiction of
standing armies in time of peace; that the other eleven had either
observed a profound silence on the subject, or had in express terms
admitted the right of the Legislature to authorize their existence.
Still, however he would be persuaded that there must be some
plausible foundation for the cry raised on this head. He would
never be able to imagine, while any source of information remained
unexplored, that it was nothing more than an experiment upon the
public credulity, dictated either by a deliberate intention to
deceive, or by the overflowings of a zeal too intemperate to be
ingenuous. It would probably occur to him, that he would be likely
to find the precautions he was in search of in the primitive compact
between the States. Here, at length, he would expect to meet with a
solution of the enigma. No doubt, he would observe to himself, the
existing Confederation must contain the most explicit provisions
against military establishments in time of peace; and a departure
from this model, in a favorite point, has occasioned the discontent
which appears to influence these political champions.
If he should now apply himself to a careful and critical survey
of the articles of Confederation, his astonishment would not only be
increased, but would acquire a mixture of indignation, at the
unexpected discovery, that these articles, instead of containing the
prohibition he looked for, and though they had, with jealous
circumspection, restricted the authority of the State legislatures
in this particular, had not imposed a single restraint on that of
the United States. If he happened to be a man of quick sensibility,
or ardent temper, he could now no longer refrain from regarding
these clamors as the dishonest artifices of a sinister and
unprincipled opposition to a plan which ought at least to receive a
fair and candid examination from all sincere lovers of their
country! How else, he would say, could the authors of them have
been tempted to vent such loud censures upon that plan, about a
point in which it seems to have conformed itself to the general
sense of America as declared in its different forms of government,
and in which it has even superadded a new and powerful guard unknown
to any of them? If, on the contrary, he happened to be a man of
calm and dispassionate feelings, he would indulge a sigh for the
frailty of human nature, and would lament, that in a matter so
interesting to the happiness of millions, the true merits of the
question should be perplexed and entangled by expedients so
unfriendly to an impartial and right determination. Even such a man
could hardly forbear remarking, that a conduct of this kind has too
much the appearance of an intention to mislead the people by
alarming their passions, rather than to convince them by arguments
addressed to their understandings.
But however little this objection may be countenanced, even by
precedents among ourselves, it may be satisfactory to take a nearer
view of its intrinsic merits. From a close examination it will
appear that restraints upon the discretion of the legislature in
respect to military establishments in time of peace, would be
improper to be imposed, and if imposed, from the necessities of
society, would be unlikely to be observed.
Though a wide ocean separates the United States from Europe, yet
there are various considerations that warn us against an excess of
confidence or security. On one side of us, and stretching far into
our rear, are growing settlements subject to the dominion of Britain.
On the other side, and extending to meet the British settlements,
are colonies and establishments subject to the dominion of Spain.
This situation and the vicinity of the West India Islands,
belonging to these two powers create between them, in respect to
their American possessions and in relation to us, a common interest.
The savage tribes on our Western frontier ought to be regarded as
our natural enemies, their natural allies, because they have most to
fear from us, and most to hope from them. The improvements in the
art of navigation have, as to the facility of communication,
rendered distant nations, in a great measure, neighbors. Britain
and Spain are among the principal maritime powers of Europe. A
future concert of views between these nations ought not to be
regarded as improbable. The increasing remoteness of consanguinity
is every day diminishing the force of the family compact between
France and Spain. And politicians have ever with great reason
considered the ties of blood as feeble and precarious links of
political connection. These circumstances combined, admonish us not
to be too sanguine in considering ourselves as entirely out of the
reach of danger.
Previous to the Revolution, and ever since the peace, there has
been a constant necessity for keeping small garrisons on our Western
frontier. No person can doubt that these will continue to be
indispensable, if it should only be against the ravages and
depredations of the Indians. These garrisons must either be
furnished by occasional detachments from the militia, or by
permanent corps in the pay of the government. The first is
impracticable; and if practicable, would be pernicious. The
militia would not long, if at all, submit to be dragged from their
occupations and families to perform that most disagreeable duty in
times of profound peace. And if they could be prevailed upon or
compelled to do it, the increased expense of a frequent rotation of
service, and the loss of labor and disconcertion of the industrious
pursuits of individuals, would form conclusive objections to the
scheme. It would be as burdensome and injurious to the public as
ruinous to private citizens. The latter resource of permanent corps
in the pay of the government amounts to a standing army in time of
peace; a small one, indeed, but not the less real for being small.
Here is a simple view of the subject, that shows us at once the
impropriety of a constitutional interdiction of such establishments,
and the necessity of leaving the matter to the discretion and
prudence of the legislature.
In proportion to our increase in strength, it is probable, nay,
it may be said certain, that Britain and Spain would augment their
military establishments in our neighborhood. If we should not be
willing to be exposed, in a naked and defenseless condition, to
their insults and encroachments, we should find it expedient to
increase our frontier garrisons in some ratio to the force by which
our Western settlements might be annoyed. There are, and will be,
particular posts, the possession of which will include the command
of large districts of territory, and facilitate future invasions of
the remainder. It may be added that some of those posts will be
keys to the trade with the Indian nations. Can any man think it
would be wise to leave such posts in a situation to be at any
instant seized by one or the other of two neighboring and formidable
powers? To act this part would be to desert all the usual maxims of
prudence and policy.
If we mean to be a commercial people, or even to be secure on
our Atlantic side, we must endeavor, as soon as possible, to have a
navy. To this purpose there must be dock-yards and arsenals; and
for the defense of these, fortifications, and probably garrisons.
When a nation has become so powerful by sea that it can protect its
dock-yards by its fleets, this supersedes the necessity of garrisons
for that purpose; but where naval establishments are in their
infancy, moderate garrisons will, in all likelihood, be found an
indispensable security against descents for the destruction of the
arsenals and dock-yards, and sometimes of the fleet itself.
PUBLIUS.
FNA1-@1 This statement of the matter is taken from the printed
collection of State constitutions. Pennsylvania and North Carolina
are the two which contain the interdiction in these words: ``As
standing armies in time of peace are dangerous to liberty, THEY
OUGHT NOT to be kept up.'' This is, in truth, rather a CAUTION than
a PROHIBITION. New Hampshire, Massachusetts, Delaware, and Maryland
have, in each of their bils of rights, a clause to this effect:
``Standing armies are dangerous to liberty, and ought not to be
raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE''; which
is a formal admission of the authority of the Legislature. New York
has no bills of rights, and her constitution says not a word about
the matter. No bills of rights appear annexed to the constitutions
of the other States, except the foregoing, and their constitutions
are equally silent. I am told, however that one or two States have
bills of rights which do not appear in this collection; but that
those also recognize the right of the legislative authority in this
respect.
FEDERALIST No. 25
The Same Subject Continued
(The Powers Necessary to the Common Defense Further Considered)
From the New York Packet.
Friday, December 21, 1787.
HAMILTON
To the People of the State of New York:
IT MAY perhaps be urged that the objects enumerated in the
preceding number ought to be provided for by the State governments,
under the direction of the Union. But this would be, in reality, an
inversion of the primary principle of our political association, as
it would in practice transfer the care of the common defense from
the federal head to the individual members: a project oppressive to
some States, dangerous to all, and baneful to the Confederacy.
The territories of Britain, Spain, and of the Indian nations in
our neighborhood do not border on particular States, but encircle
the Union from Maine to Georgia. The danger, though in different
degrees, is therefore common. And the means of guarding against it
ought, in like manner, to be the objects of common councils and of a
common treasury. It happens that some States, from local situation,
are more directly exposed. New York is of this class. Upon the
plan of separate provisions, New York would have to sustain the
whole weight of the establishments requisite to her immediate
safety, and to the mediate or ultimate protection of her neighbors.
This would neither be equitable as it respected New York nor safe
as it respected the other States. Various inconveniences would
attend such a system. The States, to whose lot it might fall to
support the necessary establishments, would be as little able as
willing, for a considerable time to come, to bear the burden of
competent provisions. The security of all would thus be subjected
to the parsimony, improvidence, or inability of a part. If the
resources of such part becoming more abundant and extensive, its
provisions should be proportionally enlarged, the other States would
quickly take the alarm at seeing the whole military force of the
Union in the hands of two or three of its members, and those
probably amongst the most powerful. They would each choose to have
some counterpoise, and pretenses could easily be contrived. In this
situation, military establishments, nourished by mutual jealousy,
would be apt to swell beyond their natural or proper size; and
being at the separate disposal of the members, they would be engines
for the abridgment or demolition of the national authcrity.
Reasons have been already given to induce a supposition that the
State governments will too naturally be prone to a rivalship with
that of the Union, the foundation of which will be the love of
power; and that in any contest between the federal head and one of
its members the people will be most apt to unite with their local
government. If, in addition to this immense advantage, the ambition
of the members should be stimulated by the separate and independent
possession of military forces, it would afford too strong a
temptation and too great a facility to them to make enterprises
upon, and finally to subvert, the constitutional authority of the
Union. On the other hand, the liberty of the people would be less
safe in this state of things than in that which left the national
forces in the hands of the national government. As far as an army
may be considered as a dangerous weapon of power, it had better be
in those hands of which the people are most likely to be jealous
than in those of which they are least likely to be jealous. For it
is a truth, which the experience of ages has attested, that the
people are always most in danger when the means of injuring their
rights are in the possession of those of whom they entertain the
least suspicion.
The framers of the existing Confederation, fully aware of the
danger to the Union from the separate possession of military forces
by the States, have, in express terms, prohibited them from having
either ships or troops, unless with the consent of Congress. The
truth is, that the existence of a federal government and military
establishments under State authority are not less at variance with
each other than a due supply of the federal treasury and the system
of quotas and requisitions.
There are other lights besides those already taken notice of, in
which the impropriety of restraints on the discretion of the
national legislature will be equally manifest. The design of the
objection, which has been mentioned, is to preclude standing armies
in time of peace, though we have never been informed how far it is
designed the prohibition should extend; whether to raising armies
as well as to KEEPING THEM UP in a season of tranquillity or not.
If it be confined to the latter it will have no precise
signification, and it will be ineffectual for the purpose intended.
When armies are once raised what shall be denominated ``keeping
them up,'' contrary to the sense of the Constitution? What time
shall be requisite to ascertain the violation? Shall it be a week,
a month, a year? Or shall we say they may be continued as long as
the danger which occasioned their being raised continues? This
would be to admit that they might be kept up IN TIME OF PEACE,
against threatening or impending danger, which would be at once to
deviate from the literal meaning of the prohibition, and to
introduce an extensive latitude of construction. Who shall judge of
the continuance of the danger? This must undoubtedly be submitted
to the national government, and the matter would then be brought to
this issue, that the national government, to provide against
apprehended danger, might in the first instance raise troops, and
might afterwards keep them on foot as long as they supposed the
peace or safety of the community was in any degree of jeopardy. It
is easy to perceive that a discretion so latitudinary as this would
afford ample room for eluding the force of the provision.
The supposed utility of a provision of this kind can only be
founded on the supposed probability, or at least possibility, of a
combination between the executive and the legislative, in some
scheme of usurpation. Should this at any time happen, how easy
would it be to fabricate pretenses of approaching danger! Indian
hostilities, instigated by Spain or Britain, would always be at hand.
Provocations to produce the desired appearances might even be
given to some foreign power, and appeased again by timely
concessions. If we can reasonably presume such a combination to
have been formed, and that the enterprise is warranted by a
sufficient prospect of success, the army, when once raised, from
whatever cause, or on whatever pretext, may be applied to the
execution of the project.
If, to obviate this consequence, it should be resolved to extend
the prohibition to the RAISING of armies in time of peace, the
United States would then exhibit the most extraordinary spectacle
which the world has yet seen, that of a nation incapacitated by its
Constitution to prepare for defense, before it was actually invaded.
As the ceremony of a formal denunciation of war has of late fallen
into disuse, the presence of an enemy within our territories must be
waited for, as the legal warrant to the government to begin its
levies of men for the protection of the State. We must receive the
blow, before we could even prepare to return it. All that kind of
policy by which nations anticipate distant danger, and meet the
gathering storm, must be abstained from, as contrary to the genuine
maxims of a free government. We must expose our property and
liberty to the mercy of foreign invaders, and invite them by our
weakness to seize the naked and defenseless prey, because we are
afraid that rulers, created by our choice, dependent on our will,
might endanger that liberty, by an abuse of the means necessary to
its preservation.
Here I expect we shall be told that the militia of the country
is its natural bulwark, and would be at all times equal to the
national defense. This doctrine, in substance, had like to have
lost us our independence. It cost millions to the United States
that might have been saved. The facts which, from our own
experience, forbid a reliance of this kind, are too recent to permit
us to be the dupes of such a suggestion. The steady operations of
war against a regular and disciplined army can only be successfully
conducted by a force of the same kind. Considerations of economy,
not less than of stability and vigor, confirm this position. The
American militia, in the course of the late war, have, by their
valor on numerous occasions, erected eternal monuments to their
fame; but the bravest of them feel and know that the liberty of
their country could not have been established by their efforts
alone, however great and valuable they were. War, like most other
things, is a science to be acquired and perfected by diligence, by
perserverance, by time, and by practice.
All violent policy, as it is contrary to the natural and
experienced course of human affairs, defeats itself. Pennsylvania,
at this instant, affords an example of the truth of this remark.
The Bill of Rights of that State declares that standing armies are
dangerous to liberty, and ought not to be kept up in time of peace.
Pennsylvania, nevertheless, in a time of profound peace, from the
existence of partial disorders in one or two of her counties, has
resolved to raise a body of troops; and in all probability will
keep them up as long as there is any appearance of danger to the
public peace. The conduct of Massachusetts affords a lesson on the
same subject, though on different ground. That State (without
waiting for the sanction of Congress, as the articles of the
Confederation require) was compelled to raise troops to quell a
domestic insurrection, and still keeps a corps in pay to prevent a
revival of the spirit of revolt. The particular constitution of
Massachusetts opposed no obstacle to the measure; but the instance
is still of use to instruct us that cases are likely to occur under
our government, as well as under those of other nations, which will
sometimes render a military force in time of peace essential to the
security of the society, and that it is therefore improper in this
respect to control the legislative discretion. It also teaches us,
in its application to the United States, how little the rights of a
feeble government are likely to be respected, even by its own
constituents. And it teaches us, in addition to the rest, how
unequal parchment provisions are to a struggle with public necessity
.
It was a fundamental maxim of the Lacedaemonian commonwealth,
that the post of admiral should not be conferred twice on the same
person. The Peloponnesian confederates, having suffered a severe
defeat at sea from the Athenians, demanded Lysander, who had before
served with success in that capacity, to command the combined fleets.
The Lacedaemonians, to gratify their allies, and yet preserve the
semblance of an adherence to their ancient institutions, had
recourse to the flimsy subterfuge of investing Lysander with the
real power of admiral, under the nominal title of vice-admiral.
This instance is selected from among a multitude that might be
cited to confirm the truth already advanced and illustrated by
domestic examples; which is, that nations pay little regard to
rules and maxims calculated in their very nature to run counter to
the necessities of society. Wise politicians will be cautious about
fettering the government with restrictions that cannot be observed,
because they know that every breach of the fundamental laws, though
dictated by necessity, impairs that sacred reverence which ought to
be maintained in the breast of rulers towards the constitution of a
country, and forms a precedent for other breaches where the same
plea of necessity does not exist at all, or is less urgent and
palpable.
PUBLIUS.
FEDERALIST No. 26
The Idea of Restraining the Legislative Authority in Regard to the
Common Defense Considered
For the Independent Journal.
HAMILTON
To the People of the State of New York:
IT WAS a thing hardly to be expected that in a popular
revolution the minds of men should stop at that happy mean which
marks the salutary boundary between POWER and PRIVILEGE, and
combines the energy of government with the security of private
rights. A failure in this delicate and important point is the great
source of the inconveniences we experience, and if we are not
cautious to avoid a repetition of the error, in our future attempts
to rectify and ameliorate our system, we may travel from one
chimerical project to another; we may try change after change; but
we shall never be likely to make any material change for the better.
The idea of restraining the legislative authority, in the means
of providing for the national defense, is one of those refinements
which owe their origin to a zeal for liberty more ardent than
enlightened. We have seen, however, that it has not had thus far an
extensive prevalency; that even in this country, where it made its
first appearance, Pennsylvania and North Carolina are the only two
States by which it has been in any degree patronized; and that all
the others have refused to give it the least countenance; wisely
judging that confidence must be placed somewhere; that the
necessity of doing it, is implied in the very act of delegating
power; and that it is better to hazard the abuse of that confidence
than to embarrass the government and endanger the public safety by
impolitic restrictions on the legislative authority. The opponents
of the proposed Constitution combat, in this respect, the general
decision of America; and instead of being taught by experience the
propriety of correcting any extremes into which we may have
heretofore run, they appear disposed to conduct us into others still
more dangerous, and more extravagant. As if the tone of government
had been found too high, or too rigid, the doctrines they teach are
calculated to induce us to depress or to relax it, by expedients
which, upon other occasions, have been condemned or forborne. It
may be affirmed without the imputation of invective, that if the
principles they inculcate, on various points, could so far obtain as
to become the popular creed, they would utterly unfit the people of
this country for any species of government whatever. But a danger
of this kind is not to be apprehended. The citizens of America have
too much discernment to be argued into anarchy. And I am much
mistaken, if experience has not wrought a deep and solemn conviction
in the public mind, that greater energy of government is essential
to the welfare and prosperity of the community.
It may not be amiss in this place concisely to remark the origin
and progress of the idea, which aims at the exclusion of military
establishments in time of peace. Though in speculative minds it may
arise from a contemplation of the nature and tendency of such
institutions, fortified by the events that have happened in other
ages and countries, yet as a national sentiment, it must be traced
to those habits of thinking which we derive from the nation from
whom the inhabitants of these States have in general sprung.
In England, for a long time after the Norman Conquest, the
authority of the monarch was almost unlimited. Inroads were
gradually made upon the prerogative, in favor of liberty, first by
the barons, and afterwards by the people, till the greatest part of
its most formidable pretensions became extinct. But it was not till
the revolution in 1688, which elevated the Prince of Orange to the
throne of Great Britain, that English liberty was completely
triumphant. As incident to the undefined power of making war, an
acknowledged prerogative of the crown, Charles II. had, by his own
authority, kept on foot in time of peace a body of 5,000 regular
troops. And this number James II. increased to 30,000; who were
paid out of his civil list. At the revolution, to abolish the
exercise of so dangerous an authority, it became an article of the
Bill of Rights then framed, that ``the raising or keeping a standing
army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF
PARLIAMENT, was against law.''
In that kingdom, when the pulse of liberty was at its highest
pitch, no security against the danger of standing armies was thought
requisite, beyond a prohibition of their being raised or kept up by
the mere authority of the executive magistrate. The patriots, who
effected that memorable revolution, were too temperate, too
wellinformed, to think of any restraint on the legislative
discretion. They were aware that a certain number of troops for
guards and garrisons were indispensable; that no precise bounds
could be set to the national exigencies; that a power equal to
every possible contingency must exist somewhere in the government:
and that when they referred the exercise of that power to the
judgment of the legislature, they had arrived at the ultimate point
of precaution which was reconcilable with the safety of the
community.
From the same source, the people of America may be said to have
derived an hereditary impression of danger to liberty, from standing
armies in time of peace. The circumstances of a revolution
quickened the public sensibility on every point connected with the
security of popular rights, and in some instances raise the warmth
of our zeal beyond the degree which consisted with the due
temperature of the body politic. The attempts of two of the States
to restrict the authority of the legislature in the article of
military establishments, are of the number of these instances. The
principles which had taught us to be jealous of the power of an
hereditary monarch were by an injudicious excess extended to the
representatives of the people in their popular assemblies. Even in
some of the States, where this error was not adopted, we find
unnecessary declarations that standing armies ought not to be kept
up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I
call them unnecessary, because the reason which had introduced a
similar provision into the English Bill of Rights is not applicable
to any of the State constitutions. The power of raising armies at
all, under those constitutions, can by no construction be deemed to
reside anywhere else, than in the legislatures themselves; and it
was superfluous, if not absurd, to declare that a matter should not
be done without the consent of a body, which alone had the power of
doing it. Accordingly, in some of these constitutions, and among
others, in that of this State of New York, which has been justly
celebrated, both in Europe and America, as one of the best of the
forms of government established in this country, there is a total
silence upon the subject.
It is remarkable, that even in the two States which seem to have
meditated an interdiction of military establishments in time of
peace, the mode of expression made use of is rather cautionary than
prohibitory. It is not said, that standing armies SHALL NOT BE kept
up, but that they OUGHT NOT to be kept up, in time of peace. This
ambiguity of terms appears to have been the result of a conflict
between jealousy and conviction; between the desire of excluding
such establishments at all events, and the persuasion that an
absolute exclusion would be unwise and unsafe.
Can it be doubted that such a provision, whenever the situation
of public affairs was understood to require a departure from it,
would be interpreted by the legislature into a mere admonition, and
would be made to yield to the necessities or supposed necessities of
the State? Let the fact already mentioned, with respect to
Pennsylvania, decide. What then (it may be asked) is the use of
such a provision, if it cease to operate the moment there is an
inclination to disregard it?
Let us examine whether there be any comparison, in point of
efficacy, between the provision alluded to and that which is
contained in the new Constitution, for restraining the
appropriations of money for military purposes to the period of two
years. The former, by aiming at too much, is calculated to effect
nothing; the latter, by steering clear of an imprudent extreme, and
by being perfectly compatible with a proper provision for the
exigencies of the nation, will have a salutary and powerful
operation.
The legislature of the United States will be OBLIGED, by this
provision, once at least in every two years, to deliberate upon the
propriety of keeping a military force on foot; to come to a new
resolution on the point; and to declare their sense of the matter,
by a formal vote in the face of their constituents. They are not AT
LIBERTY to vest in the executive department permanent funds for the
support of an army, if they were even incautious enough to be
willing to repose in it so improper a confidence. As the spirit of
party, in different degrees, must be expected to infect all
political bodies, there will be, no doubt, persons in the national
legislature willing enough to arraign the measures and criminate the
views of the majority. The provision for the support of a military
force will always be a favorable topic for declamation. As often as
the question comes forward, the public attention will be roused and
attracted to the subject, by the party in opposition; and if the
majority should be really disposed to exceed the proper limits, the
community will be warned of the danger, and will have an opportunity
of taking measures to guard against it. Independent of parties in
the national legislature itself, as often as the period of
discussion arrived, the State legislatures, who will always be not
only vigilant but suspicious and jealous guardians of the rights of
the citizens against encroachments from the federal government, will
constantly have their attention awake to the conduct of the national
rulers, and will be ready enough, if any thing improper appears, to
sound the alarm to the people, and not only to be the VOICE, but, if
necessary, the ARM of their discontent.
Schemes to subvert the liberties of a great community REQUIRE
TIME to mature them for execution. An army, so large as seriously
to menace those liberties, could only be formed by progressive
augmentations; which would suppose, not merely a temporary
combination between the legislature and executive, but a continued
conspiracy for a series of time. Is it probable that such a
combination would exist at all? Is it probable that it would be
persevered in, and transmitted along through all the successive
variations in a representative body, which biennial elections would
naturally produce in both houses? Is it presumable, that every man,
the instant he took his seat in the national Senate or House of
Representatives, would commence a traitor to his constituents and to
his country? Can it be supposed that there would not be found one
man, discerning enough to detect so atrocious a conspiracy, or bold
or honest enough to apprise his constituents of their danger? If
such presumptions can fairly be made, there ought at once to be an
end of all delegated authority. The people should resolve to recall
all the powers they have heretofore parted with out of their own
hands, and to divide themselves into as many States as there are
counties, in order that they may be able to manage their own
concerns in person.
If such suppositions could even be reasonably made, still the
concealment of the design, for any duration, would be impracticable.
It would be announced, by the very circumstance of augmenting the
army to so great an extent in time of profound peace. What
colorable reason could be assigned, in a country so situated, for
such vast augmentations of the military force? It is impossible
that the people could be long deceived; and the destruction of the
project, and of the projectors, would quickly follow the discovery.
It has been said that the provision which limits the
appropriation of money for the support of an army to the period of
two years would be unavailing, because the Executive, when once
possessed of a force large enough to awe the people into submission,
would find resources in that very force sufficient to enable him to
dispense with supplies from the acts of the legislature. But the
question again recurs, upon what pretense could he be put in
possession of a force of that magnitude in time of peace? If we
suppose it to have been created in consequence of some domestic
insurrection or foreign war, then it becomes a case not within the
principles of the objection; for this is levelled against the power
of keeping up troops in time of peace. Few persons will be so
visionary as seriously to contend that military forces ought not to
be raised to quell a rebellion or resist an invasion; and if the
defense of the community under such circumstances should make it
necessary to have an army so numerous as to hazard its liberty, this
is one of those calamaties for which there is neither preventative
nor cure. It cannot be provided against by any possible form of
government; it might even result from a simple league offensive and
defensive, if it should ever be necessary for the confederates or
allies to form an army for common defense.
But it is an evil infinitely less likely to attend us in a
united than in a disunited state; nay, it may be safely asserted
that it is an evil altogether unlikely to attend us in the latter
situation. It is not easy to conceive a possibility that dangers so
formidable can assail the whole Union, as to demand a force
considerable enough to place our liberties in the least jeopardy,
especially if we take into our view the aid to be derived from the
militia, which ought always to be counted upon as a valuable and
powerful auxiliary. But in a state of disunion (as has been fully
shown in another place), the contrary of this supposition would
become not only probable, but almost unavoidable.
PUBLIUS.
FEDERALIST No. 27
The Same Subject Continued
(The Idea of Restraining the Legislative Authority in Regard to
the Common Defense Considered)
From the New York Packet.
Tuesday, December 25, 1787.
HAMILTON
To the People of the State of New York:
IT HAS been urged, in different shapes, that a Constitution of
the kind proposed by the convention cannot operate without the aid
of a military force to execute its laws. This, however, like most
other things that have been alleged on that side, rests on mere
general assertion, unsupported by any precise or intelligible
designation of the reasons upon which it is founded. As far as I
have been able to divine the latent meaning of the objectors, it
seems to originate in a presupposition that the people will be
disinclined to the exercise of federal authority in any matter of an
internal nature. Waiving any exception that might be taken to the
inaccuracy or inexplicitness of the distinction between internal and
external, let us inquire what ground there is to presuppose that
disinclination in the people. Unless we presume at the same time
that the powers of the general government will be worse administered
than those of the State government, there seems to be no room for
the presumption of ill-will, disaffection, or opposition in the
people. I believe it may be laid down as a general rule that their
confidence in and obedience to a government will commonly be
proportioned to the goodness or badness of its administration. It
must be admitted that there are exceptions to this rule; but these
exceptions depend so entirely on accidental causes, that they cannot
be considered as having any relation to the intrinsic merits or
demerits of a constitution. These can only be judged of by general
principles and maxims.
Various reasons have been suggested, in the course of these
papers, to induce a probability that the general government will be
better administered than the particular governments; the principal
of which reasons are that the extension of the spheres of election
will present a greater option, or latitude of choice, to the people;
that through the medium of the State legislatures which are select
bodies of men, and which are to appoint the members of the national
Senate there is reason to expect that this branch will generally be
composed with peculiar care and judgment; that these circumstances
promise greater knowledge and more extensive information in the
national councils, and that they will be less apt to be tainted by
the spirit of faction, and more out of the reach of those occasional
ill-humors, or temporary prejudices and propensities, which, in
smaller societies, frequently contaminate the public councils, beget
injustice and oppression of a part of the community, and engender
schemes which, though they gratify a momentary inclination or
desire, terminate in general distress, dissatisfaction, and disgust.
Several additional reasons of considerable force, to fortify that
probability, will occur when we come to survey, with a more critical
eye, the interior structure of the edifice which we are invited to
erect. It will be sufficient here to remark, that until
satisfactory reasons can be assigned to justify an opinion, that the
federal government is likely to be administered in such a manner as
to render it odious or contemptible to the people, there can be no
reasonable foundation for the supposition that the laws of the Union
will meet with any greater obstruction from them, or will stand in
need of any other methods to enforce their execution, than the laws
of the particular members.
The hope of impunity is a strong incitement to sedition; the
dread of punishment, a proportionably strong discouragement to it.
Will not the government of the Union, which, if possessed of a due
degree of power, can call to its aid the collective resources of the
whole Confederacy, be more likely to repress the FORMER sentiment
and to inspire the LATTER, than that of a single State, which can
only command the resources within itself? A turbulent faction in a
State may easily suppose itself able to contend with the friends to
the government in that State; but it can hardly be so infatuated as
to imagine itself a match for the combined efforts of the Union. If
this reflection be just, there is less danger of resistance from
irregular combinations of individuals to the authority of the
Confederacy than to that of a single member.
I will, in this place, hazard an observation, which will not be
the less just because to some it may appear new; which is, that the
more the operations of the national authority are intermingled in
the ordinary exercise of government, the more the citizens are
accustomed to meet with it in the common occurrences of their
political life, the more it is familiarized to their sight and to
their feelings, the further it enters into those objects which touch
the most sensible chords and put in motion the most active springs
of the human heart, the greater will be the probability that it will
conciliate the respect and attachment of the community. Man is very
much a creature of habit. A thing that rarely strikes his senses
will generally have but little influence upon his mind. A
government continually at a distance and out of sight can hardly be
expected to interest the sensations of the people. The inference
is, that the authority of the Union, and the affections of the
citizens towards it, will be strengthened, rather than weakened, by
its extension to what are called matters of internal concern; and
will have less occasion to recur to force, in proportion to the
familiarity and comprehensiveness of its agency. The more it
circulates through those channls and currents in which the passions
of mankind naturally flow, the less will it require the aid of the
violent and perilous expedients of compulsion.
One thing, at all events, must be evident, that a government
like the one proposed would bid much fairer to avoid the necessity
of using force, than that species of league contend for by most of
its opponents; the authority of which should only operate upon the
States in their political or collective capacities. It has been
shown that in such a Confederacy there can be no sanction for the
laws but force; that frequent delinquencies in the members are the
natural offspring of the very frame of the government; and that as
often as these happen, they can only be redressed, if at all, by war
and violence.
The plan reported by the convention, by extending the authority
of the federal head to the individual citizens of the several
States, will enable the government to employ the ordinary magistracy
of each, in the execution of its laws. It is easy to perceive that
this will tend to destroy, in the common apprehension, all
distinction between the sources from which they might proceed; and
will give the federal government the same advantage for securing a
due obedience to its authority which is enjoyed by the government of
each State, in addition to the influence on public opinion which
will result from the important consideration of its having power to
call to its assistance and support the resources of the whole Union.
It merits particular attention in this place, that the laws of the
Confederacy, as to the ENUMERATED and LEGITIMATE objects of its
jurisdiction, will become the SUPREME LAW of the land; to the
observance of which all officers, legislative, executive, and
judicial, in each State, will be bound by the sanctity of an oath.
Thus the legislatures, courts, and magistrates, of the respective
members, will be incorporated into the operations of the national
government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS;
and will be rendered auxiliary to the enforcement of its laws. [1%]
Any man who will pursue, by his own reflections, the consequences
of this situation, will perceive that there is good ground to
calculate upon a regular and peaceable execution of the laws of the
Union, if its powers are administered with a common share of
prudence. If we will arbitrarily suppose the contrary, we may
deduce any inferences we please from the supposition; for it is
certainly possible, by an injudicious exercise of the authorities of
the best government that ever was, or ever can be instituted, to
provoke and precipitate the people into the wildest excesses. But
though the adversaries of the proposed Constitution should presume
that the national rulers would be insensible to the motives of
public good, or to the obligations of duty, I would still ask them
how the interests of ambition, or the views of encroachment, can be
promoted by such a conduct?
PUBLIUS.
FNA1-@1 The sophistry which has been employed to show that this will
tend to the destruction of the State governments, will, in its will,
in its proper place, be fully detected.
FEDERALIST No. 28
The Same Subject Continued
(The Idea of Restraining the Legislative Authority in Regard to
the Common Defense Considered)
For the Independent Journal.
HAMILTON
To the People of the State of New York:
THAT there may happen cases in which the national government may
be necessitated to resort to force, cannot be denied. Our own
experience has corroborated the lessons taught by the examples of
other nations; that emergencies of this sort will sometimes arise
in all societies, however constituted; that seditions and
insurrections are, unhappily, maladies as inseparable from the body
politic as tumors and eruptions from the natural body; that the
idea of governing at all times by the simple force of law (which we
have been told is the only admissible principle of republican
government), has no place but in the reveries of those political
doctors whose sagacity disdains the admonitions of experimental
instruction.
Should such emergencies at any time happen under the national
government, there could be no remedy but force. The means to be
employed must be proportioned to the extent of the mischief. If it
should be a slight commotion in a small part of a State, the militia
of the residue would be adequate to its suppression; and the
national presumption is that they would be ready to do their duty.
An insurrection, whatever may be its immediate cause, eventually
endangers all government. Regard to the public peace, if not to the
rights of the Union, would engage the citizens to whom the contagion
had not communicated itself to oppose the insurgents; and if the
general government should be found in practice conducive to the
prosperity and felicity of the people, it were irrational to believe
that they would be disinclined to its support.
If, on the contrary, the insurrection should pervade a whole
State, or a principal part of it, the employment of a different kind
of force might become unavoidable. It appears that Massachusetts
found it necessary to raise troops for repressing the disorders
within that State; that Pennsylvania, from the mere apprehension of
commotions among a part of her citizens, has thought proper to have
recourse to the same measure. Suppose the State of New York had
been inclined to re-establish her lost jurisdiction over the
inhabitants of Vermont, could she have hoped for success in such an
enterprise from the efforts of the militia alone? Would she not
have been compelled to raise and to maintain a more regular force
for the execution of her design? If it must then be admitted that
the necessity of recurring to a force different from the militia, in
cases of this extraordinary nature, is applicable to the State
governments themselves, why should the possibility, that the
national government might be under a like necessity, in similar
extremities, be made an objection to its existence? Is it not
surprising that men who declare an attachment to the Union in the
abstract, should urge as an objection to the proposed Constitution
what applies with tenfold weight to the plan for which they contend;
and what, as far as it has any foundation in truth, is an
inevitable consequence of civil society upon an enlarged scale? Who
would not prefer that possibility to the unceasing agitations and
frequent revolutions which are the continual scourges of petty
republics?
Let us pursue this examination in another light. Suppose, in
lieu of one general system, two, or three, or even four
Confederacies were to be formed, would not the same difficulty
oppose itself to the operations of either of these Confederacies?
Would not each of them be exposed to the same casualties; and when
these happened, be obliged to have recourse to the same expedients
for upholding its authority which are objected to in a government
for all the States? Would the militia, in this supposition, be more
ready or more able to support the federal authority than in the case
of a general union? All candid and intelligent men must, upon due
consideration, acknowledge that the principle of the objection is
equally applicable to either of the two cases; and that whether we
have one government for all the States, or different governments for
different parcels of them, or even if there should be an entire
separation of the States, there might sometimes be a necessity to
make use of a force constituted differently from the militia, to
preserve the peace of the community and to maintain the just
authority of the laws against those violent invasions of them which
amount to insurrections and rebellions.
Independent of all other reasonings upon the subject, it is a
full answer to those who require a more peremptory provision against
military establishments in time of peace, to say that the whole
power of the proposed government is to be in the hands of the
representatives of the people. This is the essential, and, after
all, only efficacious security for the rights and privileges of the
people, which is attainable in civil society. [1]
If the representatives of the people betray their constituents,
there is then no resource left but in the exertion of that original
right of self-defense which is paramount to all positive forms of
government, and which against the usurpations of the national
rulers, may be exerted with infinitely better prospect of success
than against those of the rulers of an individual state. In a
single state, if the persons intrusted with supreme power become
usurpers, the different parcels, subdivisions, or districts of which
it consists, having no distinct government in each, can take no
regular measures for defense. The citizens must rush tumultuously
to arms, without concert, without system, without resource; except
in their courage and despair. The usurpers, clothed with the forms
of legal authority, can too often crush the opposition in embryo.
The smaller the extent of the territory, the more difficult will it
be for the people to form a regular or systematic plan of
opposition, and the more easy will it be to defeat their early
efforts. Intelligence can be more speedily obtained of their
preparations and movements, and the military force in the possession
of the usurpers can be more rapidly directed against the part where
the opposition has begun. In this situation there must be a
peculiar coincidence of circumstances to insure success to the
popular resistance.
The obstacles to usurpation and the facilities of resistance
increase with the increased extent of the state, provided the
citizens understand their rights and are disposed to defend them.
The natural strength of the people in a large community, in
proportion to the artificial strength of the government, is greater
than in a small, and of course more competent to a struggle with the
attempts of the government to establish a tyranny. But in a
confederacy the people, without exaggeration, may be said to be
entirely the masters of their own fate. Power being almost always
the rival of power, the general government will at all times stand
ready to check the usurpations of the state governments, and these
will have the same disposition towards the general government. The
people, by throwing themselves into either scale, will infallibly
make it preponderate. If their rights are invaded by either, they
can make use of the other as the instrument of redress. How wise
will it be in them by cherishing the union to preserve to themselves
an advantage which can never be too highly prized!
It may safely be received as an axiom in our political system,
that the State governments will, in all possible contingencies,
afford complete security against invasions of the public liberty by
the national authority. Projects of usurpation cannot be masked
under pretenses so likely to escape the penetration of select bodies
of men, as of the people at large. The legislatures will have
better means of information. They can discover the danger at a
distance; and possessing all the organs of civil power, and the
confidence of the people, they can at once adopt a regular plan of
opposition, in which they can combine all the resources of the
community. They can readily communicate with each other in the
different States, and unite their common forces for the protection
of their common liberty.
The great extent of the country is a further security. We have
already experienced its utility against the attacks of a foreign
power. And it would have precisely the same effect against the
enterprises of ambitious rulers in the national councils. If the
federal army should be able to quell the resistance of one State,
the distant States would have it in their power to make head with
fresh forces. The advantages obtained in one place must be
abandoned to subdue the opposition in others; and the moment the
part which had been reduced to submission was left to itself, its
efforts would be renewed, and its resistance revive.
We should recollect that the extent of the military force must,
at all events, be regulated by the resources of the country. For a
long time to come, it will not be possible to maintain a large army;
and as the means of doing this increase, the population and natural
strength of the community will proportionably increase. When will
the time arrive that the federal government can raise and maintain
an army capable of erecting a despotism over the great body of the
people of an immense empire, who are in a situation, through the
medium of their State governments, to take measures for their own
defense, with all the celerity, regularity, and system of
independent nations? The apprehension may be considered as a
disease, for which there can be found no cure in the resources of
argument and reasoning.
PUBLIUS.
FNA1-@1 Its full efficacy will be examined hereafter.
FEDERALIST No. 29
Concerning the Militia
From the Daily Advertiser.
Thursday, January 10, 1788
HAMILTON
To the People of the State of New York:
THE power of regulating the militia, and of commanding its
services in times of insurrection and invasion are natural incidents
to the duties of superintending the common defense, and of watching
over the internal peace of the Confederacy.
It requires no skill in the science of war to discern that
uniformity in the organization and discipline of the militia would
be attended with the most beneficial effects, whenever they were
called into service for the public defense. It would enable them to
discharge the duties of the camp and of the field with mutual
intelligence and concert an advantage of peculiar moment in the
operations of an army; and it would fit them much sooner to acquire
the degree of proficiency in military functions which would be
essential to their usefulness. This desirable uniformity can only
be accomplished by confiding the regulation of the militia to the
direction of the national authority. It is, therefore, with the
most evident propriety, that the plan of the convention proposes to
empower the Union ``to provide for organizing, arming, and
disciplining the militia, and for governing such part of them as may
be employed in the service of the United States, RESERVING TO THE
STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE
AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE
PRESCRIBED BY CONGRESS.''
Of the different grounds which have been taken in opposition to
the plan of the convention, there is none that was so little to have
been expected, or is so untenable in itself, as the one from which
this particular provision has been attacked. If a well-regulated
militia be the most natural defense of a free country, it ought
certainly to be under the regulation and at the disposal of that
body which is constituted the guardian of the national security. If
standing armies are dangerous to liberty, an efficacious power over
the militia, in the body to whose care the protection of the State
is committed, ought, as far as possible, to take away the inducement
and the pretext to such unfriendly institutions. If the federal
government can command the aid of the militia in those emergencies
which call for the military arm in support of the civil magistrate,
it can the better dispense with the employment of a different kind
of force. If it cannot avail itself of the former, it will be
obliged to recur to the latter. To render an army unnecessary, will
be a more certain method of preventing its existence than a thousand
prohibitions upon paper.
In order to cast an odium upon the power of calling forth the
militia to execute the laws of the Union, it has been remarked that
there is nowhere any provision in the proposed Constitution for
calling out the POSSE COMITATUS, to assist the magistrate in the
execution of his duty, whence it has been inferred, that military
force was intended to be his only auxiliary. There is a striking
incoherence in the objections which have appeared, and sometimes
even from the same quarter, not much calculated to inspire a very
favorable opinion of the sincerity or fair dealing of their authors.
The same persons who tell us in one breath, that the powers of the
federal government will be despotic and unlimited, inform us in the
next, that it has not authority sufficient even to call out the
POSSE COMITATUS. The latter, fortunately, is as much short of the
truth as the former exceeds it. It would be as absurd to doubt,
that a right to pass all laws NECESSARY AND PROPER to execute its
declared powers, would include that of requiring the assistance of
the citizens to the officers who may be intrusted with the execution
of those laws, as it would be to believe, that a right to enact laws
necessary and proper for the imposition and collection of taxes
would involve that of varying the rules of descent and of the
alienation of landed property, or of abolishing the trial by jury in
cases relating to it. It being therefore evident that the
supposition of a want of power to require the aid of the POSSE
COMITATUS is entirely destitute of color, it will follow, that the
conclusion which has been drawn from it, in its application to the
authority of the federal government over the militia, is as uncandid
as it is illogical. What reason could there be to infer, that force
was intended to be the sole instrument of authority, merely because
there is a power to make use of it when necessary? What shall we
think of the motives which could induce men of sense to reason in
this manner? How shall we prevent a conflict between charity and
judgment?
By a curious refinement upon the spirit of republican jealousy,
we are even taught to apprehend danger from the militia itself, in
the hands of the federal government. It is observed that select
corps may be formed, composed of the young and ardent, who may be
rendered subservient to the views of arbitrary power. What plan for
the regulation of the militia may be pursued by the national
government, is impossible to be foreseen. But so far from viewing
the matter in the same light with those who object to select corps
as dangerous, were the Constitution ratified, and were I to deliver
my sentiments to a member of the federal legislature from this State
on the subject of a militia establishment, I should hold to him, in
substance, the following discourse:
``The project of disciplining all the militia of the United
States is as futile as it would be injurious, if it were capable of
being carried into execution. A tolerable expertness in military
movements is a business that requires time and practice. It is not
a day, or even a week, that will suffice for the attainment of it.
To oblige the great body of the yeomanry, and of the other classes
of the citizens, to be under arms for the purpose of going through
military exercises and evolutions, as often as might be necessary to
acquire the degree of perfection which would entitle them to the
character of a well-regulated militia, would be a real grievance to
the people, and a serious public inconvenience and loss. It would
form an annual deduction from the productive labor of the country,
to an amount which, calculating upon the present numbers of the
people, would not fall far short of the whole expense of the civil
establishments of all the States. To attempt a thing which would
abridge the mass of labor and industry to so considerable an extent,
would be unwise: and the experiment, if made, could not succeed,
because it would not long be endured. Little more can reasonably be
aimed at, with respect to the people at large, than to have them
properly armed and equipped; and in order to see that this be not
neglected, it will be necessary to assemble them once or twice in
the course of a year.
``But though the scheme of disciplining the whole nation must be
abandoned as mischievous or impracticable; yet it is a matter of
the utmost importance that a well-digested plan should, as soon as
possible, be adopted for the proper establishment of the militia.
The attention of the government ought particularly to be directed
to the formation of a select corps of moderate extent, upon such
principles as will really fit them for service in case of need. By
thus circumscribing the plan, it will be possible to have an
excellent body of well-trained militia, ready to take the field
whenever the defense of the State shall require it. This will not
only lessen the call for military establishments, but if
circumstances should at any time oblige the government to form an
army of any magnitude that army can never be formidable to the
liberties of the people while there is a large body of citizens,
little, if at all, inferior to them in discipline and the use of
arms, who stand ready to defend their own rights and those of their
fellow-citizens. This appears to me the only substitute that can be
devised for a standing army, and the best possible security against
it, if it should exist.''
Thus differently from the adversaries of the proposed
Constitution should I reason on the same subject, deducing arguments
of safety from the very sources which they represent as fraught with
danger and perdition. But how the national legislature may reason
on the point, is a thing which neither they nor I can foresee.
There is something so far-fetched and so extravagant in the idea
of danger to liberty from the militia, that one is at a loss whether
to treat it with gravity or with raillery; whether to consider it
as a mere trial of skill, like the paradoxes of rhetoricians; as a
disingenuous artifice to instil prejudices at any price; or as the
serious offspring of political fanaticism. Where in the name of
common-sense, are our fears to end if we may not trust our sons, our
brothers, our neighbors, our fellow-citizens? What shadow of danger
can there be from men who are daily mingling with the rest of their
countrymen and who participate with them in the same feelings,
sentiments, habits and interests? What reasonable cause of
apprehension can be inferred from a power in the Union to prescribe
regulations for the militia, and to command its services when
necessary, while the particular States are to have the SOLE AND
EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible
seriously to indulge a jealousy of the militia upon any conceivable
establishment under the federal government, the circumstance of the
officers being in the appointment of the States ought at once to
extinguish it. There can be no doubt that this circumstance will
always secure to them a preponderating influence over the militia.
In reading many of the publications against the Constitution, a
man is apt to imagine that he is perusing some ill-written tale or
romance, which instead of natural and agreeable images, exhibits to
the mind nothing but frightful and distorted shapes ``Gorgons, hydras,
and chimeras dire''; discoloring and disfiguring whatever it represents,
and transforming everything it touches into a monster.
A sample of this is to be observed in the exaggerated and
improbable suggestions which have taken place respecting the power
of calling for the services of the militia. That of New Hampshire
is to be marched to Georgia, of Georgia to New Hampshire, of New
York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts
due to the French and Dutch are to be paid in militiamen instead of
louis d'ors and ducats. At one moment there is to be a large army
to lay prostrate the liberties of the people; at another moment the
militia of Virginia are to be dragged from their homes five or six
hundred miles, to tame the republican contumacy of Massachusetts;
and that of Massachusetts is to be transported an equal distance to
subdue the refractory haughtiness of the aristocratic Virginians.
Do the persons who rave at this rate imagine that their art or
their eloquence can impose any conceits or absurdities upon the
people of America for infallible truths?
If there should be an army to be made use of as the engine of
despotism, what need of the militia? If there should be no army,
whither would the militia, irritated by being called upon to
undertake a distant and hopeless expedition, for the purpose of
riveting the chains of slavery upon a part of their countrymen,
direct their course, but to the seat of the tyrants, who had
meditated so foolish as well as so wicked a project, to crush them
in their imagined intrenchments of power, and to make them an
example of the just vengeance of an abused and incensed people? Is
this the way in which usurpers stride to dominion over a numerous
and enlightened nation? Do they begin by exciting the detestation
of the very instruments of their intended usurpations? Do they
usually commence their career by wanton and disgustful acts of
power, calculated to answer no end, but to draw upon themselves
universal hatred and execration? Are suppositions of this sort the
sober admonitions of discerning patriots to a discerning people? Or
are they the inflammatory ravings of incendiaries or distempered
enthusiasts? If we were even to suppose the national rulers
actuated by the most ungovernable ambition, it is impossible to
believe that they would employ such preposterous means to accomplish
their designs.
In times of insurrection, or invasion, it would be natural and
proper that the militia of a neighboring State should be marched
into another, to resist a common enemy, or to guard the republic
against the violence of faction or sedition. This was frequently
the case, in respect to the first object, in the course of the late
war; and this mutual succor is, indeed, a principal end of our
political association. If the power of affording it be placed under
the direction of the Union, there will be no danger of a supine and
listless inattention to the dangers of a neighbor, till its near
approach had superadded the incitements of selfpreservation to the
too feeble impulses of duty and sympathy.
PUBLIUS.
FEDERALIST No. 30
Concerning the General Power of Taxation
From the New York Packet.
Friday, December 28, 1787.
HAMILTON
To the People of the State of New York:
IT HAS been already observed that the federal government ought
to possess the power of providing for the support of the national
forces; in which proposition was intended to be included the
expense of raising troops, of building and equipping fleets, and all
other expenses in any wise connected with military arrangements and
operations. But these are not the only objects to which the
jurisdiction of the Union, in respect to revenue, must necessarily
be empowered to extend. It must embrace a provision for the support
of the national civil list; for the payment of the national debts
contracted, or that may be contracted; and, in general, for all
those matters which will call for disbursements out of the national
treasury. The conclusion is, that there must be interwoven, in the
frame of the government, a general power of taxation, in one shape
or another.
Money is, with propriety, considered as the vital principle of
the body politic; as that which sustains its life and motion, and
enables it to perform its most essential functions. A complete
power, therefore, to procure a regular and adequate supply of it, as
far as the resources of the community will permit, may be regarded
as an indispensable ingredient in every constitution. From a
deficiency in this particular, one of two evils must ensue; either
the people must be subjected to continual plunder, as a substitute
for a more eligible mode of supplying the public wants, or the
government must sink into a fatal atrophy, and, in a short course of
time, perish.
In the Ottoman or Turkish empire, the sovereign, though in other
respects absolute master of the lives and fortunes of his subjects,
has no right to impose a new tax. The consequence is that he
permits the bashaws or governors of provinces to pillage the people
without mercy; and, in turn, squeezes out of them the sums of which
he stands in need, to satisfy his own exigencies and those of the
state. In America, from a like cause, the government of the Union
has gradually dwindled into a state of decay, approaching nearly to
annihilation. Who can doubt, that the happiness of the people in
both countries would be promoted by competent authorities in the
proper hands, to provide the revenues which the necessities of the
public might require?
The present Confederation, feeble as it is intended to repose in
the United States, an unlimited power of providing for the pecuniary
wants of the Union. But proceeding upon an erroneous principle, it
has been done in such a manner as entirely to have frustrated the
intention. Congress, by the articles which compose that compact (as
has already been stated), are authorized to ascertain and call for
any sums of money necessary, in their judgment, to the service of
the United States; and their requisitions, if conformable to the
rule of apportionment, are in every constitutional sense obligatory
upon the States. These have no right to question the propriety of
the demand; no discretion beyond that of devising the ways and
means of furnishing the sums demanded. But though this be strictly
and truly the case; though the assumption of such a right would be
an infringement of the articles of Union; though it may seldom or
never have been avowedly claimed, yet in practice it has been
constantly exercised, and would continue to be so, as long as the
revenues of the Confederacy should remain dependent on the
intermediate agency of its members. What the consequences of this
system have been, is within the knowledge of every man the least
conversant in our public affairs, and has been amply unfolded in
different parts of these inquiries. It is this which has chiefly
contributed to reduce us to a situation, which affords ample cause
both of mortification to ourselves, and of triumph to our enemies.
What remedy can there be for this situation, but in a change of
the system which has produced it in a change of the fallacious and
delusive system of quotas and requisitions? What substitute can
there be imagined for this ignis fatuus in finance, but that of
permitting the national government to raise its own revenues by the
ordinary methods of taxation authorized in every well-ordered
constitution of civil government? Ingenious men may declaim with
plausibility on any subject; but no human ingenuity can point out
any other expedient to rescue us from the inconveniences and
embarrassments naturally resulting from defective supplies of the
public treasury.
The more intelligent adversaries of the new Constitution admit
the force of this reasoning; but they qualify their admission by a
distinction between what they call INTERNAL and EXTERNAL taxation.
The former they would reserve to the State governments; the
latter, which they explain into commercial imposts, or rather duties
on imported articles, they declare themselves willing to concede to
the federal head. This distinction, however, would violate the
maxim of good sense and sound policy, which dictates that every
POWER ought to be in proportion to its OBJECT; and would still
leave the general government in a kind of tutelage to the State
governments, inconsistent with every idea of vigor or efficiency.
Who can pretend that commercial imposts are, or would be, alone
equal to the present and future exigencies of the Union? Taking
into the account the existing debt, foreign and domestic, upon any
plan of extinguishment which a man moderately impressed with the
importance of public justice and public credit could approve, in
addition to the establishments which all parties will acknowledge to
be necessary, we could not reasonably flatter ourselves, that this
resource alone, upon the most improved scale, would even suffice for
its present necessities. Its future necessities admit not of
calculation or limitation; and upon the principle, more than once
adverted to, the power of making provision for them as they arise
ought to be equally unconfined. I believe it may be regarded as a
position warranted by the history of mankind, that, IN THE USUAL
PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF
ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.
To say that deficiencies may be provided for by requisitions
upon the States, is on the one hand to acknowledge that this system
cannot be depended upon, and on the other hand to depend upon it for
every thing beyond a certain limit. Those who have carefully
attended to its vices and deformities as they have been exhibited by
experience or delineated in the course of these papers, must feel
invincible repugnancy to trusting the national interests in any
degree to its operation. Its inevitable tendency, whenever it is
brought into activity, must be to enfeeble the Union, and sow the
seeds of discord and contention between the federal head and its
members, and between the members themselves. Can it be expected
that the deficiencies would be better supplied in this mode than the
total wants of the Union have heretofore been supplied in the same
mode? It ought to be recollected that if less will be required from
the States, they will have proportionably less means to answer the
demand. If the opinions of those who contend for the distinction
which has been mentioned were to be received as evidence of truth,
one would be led to conclude that there was some known point in the
economy of national affairs at which it would be safe to stop and to
say: Thus far the ends of public happiness will be promoted by
supplying the wants of government, and all beyond this is unworthy
of our care or anxiety. How is it possible that a government half
supplied and always necessitous, can fulfill the purposes of its
institution, can provide for the security, advance the prosperity,
or support the reputation of the commonwealth? How can it ever
possess either energy or stability, dignity or credit, confidence at
home or respectability abroad? How can its administration be any
thing else than a succession of expedients temporizing, impotent,
disgraceful? How will it be able to avoid a frequent sacrifice of
its engagements to immediate necessity? How can it undertake or
execute any liberal or enlarged plans of public good?
Let us attend to what would be the effects of this situation in
the very first war in which we should happen to be engaged. We will
presume, for argument's sake, that the revenue arising from the
impost duties answers the purposes of a provision for the public
debt and of a peace establishment for the Union. Thus
circumstanced, a war breaks out. What would be the probable conduct
of the government in such an emergency? Taught by experience that
proper dependence could not be placed on the success of
requisitions, unable by its own authority to lay hold of fresh
resources, and urged by considerations of national danger, would it
not be driven to the expedient of diverting the funds already
appropriated from their proper objects to the defense of the State?
It is not easy to see how a step of this kind could be avoided;
and if it should be taken, it is evident that it would prove the
destruction of public credit at the very moment that it was becoming
essential to the public safety. To imagine that at such a crisis
credit might be dispensed with, would be the extreme of infatuation.
In the modern system of war, nations the most wealthy are obliged
to have recourse to large loans. A country so little opulent as
ours must feel this necessity in a much stronger degree. But who
would lend to a government that prefaced its overtures for borrowing
by an act which demonstrated that no reliance could be placed on the
steadiness of its measures for paying? The loans it might be able
to procure would be as limited in their extent as burdensome in
their conditions. They would be made upon the same principles that
usurers commonly lend to bankrupt and fraudulent debtors, with a
sparing hand and at enormous premiums.
It may perhaps be imagined that, from the scantiness of the
resources of the country, the necessity of diverting the established
funds in the case supposed would exist, though the national
government should possess an unrestrained power of taxation. But
two considerations will serve to quiet all apprehension on this
head: one is, that we are sure the resources of the community, in
their full extent, will be brought into activity for the benefit of
the Union; the other is, that whatever deficiences there may be,
can without difficulty be supplied by loans.
The power of creating new funds upon new objects of taxation, by
its own authority, would enable the national government to borrow as
far as its necessities might require. Foreigners, as well as the
citizens of America, could then reasonably repose confidence in its
engagements; but to depend upon a government that must itself
depend upon thirteen other governments for the means of fulfilling
its contracts, when once its situation is clearly understood, would
require a degree of credulity not often to be met with in the
pecuniary transactions of mankind, and little reconcilable with the
usual sharp-sightedness of avarice.
Reflections of this kind may have trifling weight with men who
hope to see realized in America the halcyon scenes of the poetic or
fabulous age; but to those who believe we are likely to experience
a common portion of the vicissitudes and calamities which have
fallen to the lot of other nations, they must appear entitled to
serious attention. Such men must behold the actual situation of
their country with painful solicitude, and deprecate the evils which
ambition or revenge might, with too much facility, inflict upon it.
PUBLIUS.
FEDERALIST No. 31
The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Tuesday, January 1, 1788.
HAMILTON
To the People of the State of New York:
IN DISQUISITIONS of every kind, there are certain primary
truths, or first principles, upon which all subsequent reasonings
must depend. These contain an internal evidence which, antecedent
to all reflection or combination, commands the assent of the mind.
Where it produces not this effect, it must proceed either from some
defect or disorder in the organs of perception, or from the
influence of some strong interest, or passion, or prejudice. Of
this nature are the maxims in geometry, that ``the whole is greater
than its part; things equal to the same are equal to one another;
two straight lines cannot enclose a space; and all right angles
are equal to each other.'' Of the same nature are these other
maxims in ethics and politics, that there cannot be an effect
without a cause; that the means ought to be proportioned to the
end; that every power ought to be commensurate with its object;
that there ought to be no limitation of a power destined to effect
a purpose which is itself incapable of limitation. And there are
other truths in the two latter sciences which, if they cannot
pretend to rank in the class of axioms, are yet such direct
inferences from them, and so obvious in themselves, and so agreeable
to the natural and unsophisticated dictates of common-sense, that
they challenge the assent of a sound and unbiased mind, with a
degree of force and conviction almost equally irresistible.
The objects of geometrical inquiry are so entirely abstracted
from those pursuits which stir up and put in motion the unruly
passions of the human heart, that mankind, without difficulty, adopt
not only the more simple theorems of the science, but even those
abstruse paradoxes which, however they may appear susceptible of
demonstration, are at variance with the natural conceptions which
the mind, without the aid of philosophy, would be led to entertain
upon the subject. The INFINITE DIVISIBILITY of matter, or, in other
words, the INFINITE divisibility of a FINITE thing, extending even
to the minutest atom, is a point agreed among geometricians, though
not less incomprehensible to common-sense than any of those
mysteries in religion, against which the batteries of infidelity
have been so industriously leveled.
But in the sciences of morals and politics, men are found far
less tractable. To a certain degree, it is right and useful that
this should be the case. Caution and investigation are a necessary
armor against error and imposition. But this untractableness may be
carried too far, and may degenerate into obstinacy, perverseness, or
disingenuity. Though it cannot be pretended that the principles of
moral and political knowledge have, in general, the same degree of
certainty with those of the mathematics, yet they have much better
claims in this respect than, to judge from the conduct of men in
particular situations, we should be disposed to allow them. The
obscurity is much oftener in the passions and prejudices of the
reasoner than in the subject. Men, upon too many occasions, do not
give their own understandings fair play; but, yielding to some
untoward bias, they entangle themselves in words and confound
themselves in subtleties.
How else could it happen (if we admit the objectors to be
sincere in their opposition), that positions so clear as those which
manifest the necessity of a general power of taxation in the
government of the Union, should have to encounter any adversaries
among men of discernment? Though these positions have been
elsewhere fully stated, they will perhaps not be improperly
recapitulated in this place, as introductory to an examination of
what may have been offered by way of objection to them. They are in
substance as follows:
A government ought to contain in itself every power requisite to
the full accomplishment of the objects committed to its care, and to
the complete execution of the trusts for which it is responsible,
free from every other control but a regard to the public good and to
the sense of the people.
As the duties of superintending the national defense and of
securing the public peace against foreign or domestic violence
involve a provision for casualties and dangers to which no possible
limits can be assigned, the power of making that provision ought to
know no other bounds than the exigencies of the nation and the
resources of the community.
As revenue is the essential engine by which the means of
answering the national exigencies must be procured, the power of
procuring that article in its full extent must necessarily be
comprehended in that of providing for those exigencies.
As theory and practice conspire to prove that the power of
procuring revenue is unavailing when exercised over the States in
their collective capacities, the federal government must of
necessity be invested with an unqualified power of taxation in the
ordinary modes.
Did not experience evince the contrary, it would be natural to
conclude that the propriety of a general power of taxation in the
national government might safely be permitted to rest on the
evidence of these propositions, unassisted by any additional
arguments or illustrations. But we find, in fact, that the
antagonists of the proposed Constitution, so far from acquiescing in
their justness or truth, seem to make their principal and most
zealous effort against this part of the plan. It may therefore be
satisfactory to analyze the arguments with which they combat it.
Those of them which have been most labored with that view, seem
in substance to amount to this: ``It is not true, because the
exigencies of the Union may not be susceptible of limitation, that
its power of laying taxes ought to be unconfined. Revenue is as
requisite to the purposes of the local administrations as to those
of the Union; and the former are at least of equal importance with
the latter to the happiness of the people. It is, therefore, as
necessary that the State governments should be able to command the
means of supplying their wants, as that the national government
should possess the like faculty in respect to the wants of the Union.
But an indefinite power of taxation in the LATTER might, and
probably would in time, deprive the FORMER of the means of providing
for their own necessities; and would subject them entirely to the
mercy of the national legislature. As the laws of the Union are to
become the supreme law of the land, as it is to have power to pass
all laws that may be NECESSARY for carrying into execution the
authorities with which it is proposed to vest it, the national
government might at any time abolish the taxes imposed for State
objects upon the pretense of an interference with its own. It might
allege a necessity of doing this in order to give efficacy to the
national revenues. And thus all the resources of taxation might by
degrees become the subjects of federal monopoly, to the entire
exclusion and destruction of the State governments.''
This mode of reasoning appears sometimes to turn upon the
supposition of usurpation in the national government; at other
times it seems to be designed only as a deduction from the
constitutional operation of its intended powers. It is only in the
latter light that it can be admitted to have any pretensions to
fairness. The moment we launch into conjectures about the
usurpations of the federal government, we get into an unfathomable
abyss, and fairly put ourselves out of the reach of all reasoning.
Imagination may range at pleasure till it gets bewildered amidst
the labyrinths of an enchanted castle, and knows not on which side
to turn to extricate itself from the perplexities into which it has
so rashly adventured. Whatever may be the limits or modifications
of the powers of the Union, it is easy to imagine an endless train
of possible dangers; and by indulging an excess of jealousy and
timidity, we may bring ourselves to a state of absolute scepticism
and irresolution. I repeat here what I have observed in substance
in another place, that all observations founded upon the danger of
usurpation ought to be referred to the composition and structure of
the government, not to the nature or extent of its powers. The
State governments, by their original constitutions, are invested
with complete sovereignty. In what does our security consist
against usurpation from that quarter? Doubtless in the manner of
their formation, and in a due dependence of those who are to
administer them upon the people. If the proposed construction of
the federal government be found, upon an impartial examination of
it, to be such as to afford, to a proper extent, the same species of
security, all apprehensions on the score of usurpation ought to be
discarded.
It should not be forgotten that a disposition in the State
governments to encroach upon the rights of the Union is quite as
probable as a disposition in the Union to encroach upon the rights
of the State governments. What side would be likely to prevail in
such a conflict, must depend on the means which the contending
parties could employ toward insuring success. As in republics
strength is always on the side of the people, and as there are
weighty reasons to induce a belief that the State governments will
commonly possess most influence over them, the natural conclusion is
that such contests will be most apt to end to the disadvantage of
the Union; and that there is greater probability of encroachments
by the members upon the federal head, than by the federal head upon
the members. But it is evident that all conjectures of this kind
must be extremely vague and fallible: and that it is by far the
safest course to lay them altogether aside, and to confine our
attention wholly to the nature and extent of the powers as they are
delineated in the Constitution. Every thing beyond this must be
left to the prudence and firmness of the people; who, as they will
hold the scales in their own hands, it is to be hoped, will always
take care to preserve the constitutional equilibrium between the
general and the State governments. Upon this ground, which is
evidently the true one, it will not be difficult to obviate the
objections which have been made to an indefinite power of taxation
in the United States.
PUBLIUS.
FEDERALIST No. 32
The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser.
Thursday, January 3, 1788.
HAMILTON
To the People of the State of New York:
ALTHOUGH I am of opinion that there would be no real danger of
the consequences which seem to be apprehended to the State
governments from a power in the Union to control them in the levies
of money, because I am persuaded that the sense of the people, the
extreme hazard of provoking the resentments of the State
governments, and a conviction of the utility and necessity of local
administrations for local purposes, would be a complete barrier
against the oppressive use of such a power; yet I am willing here
to allow, in its full extent, the justness of the reasoning which
requires that the individual States should possess an independent
and uncontrollable authority to raise their own revenues for the
supply of their own wants. And making this concession, I affirm
that (with the sole exception of duties on imports and exports) they
would, under the plan of the convention, retain that authority in
the most absolute and unqualified sense; and that an attempt on the
part of the national government to abridge them in the exercise of
it, would be a violent assumption of power, unwarranted by any
article or clause of its Constitution.
An entire consolidation of the States into one complete national
sovereignty would imply an entire subordination of the parts; and
whatever powers might remain in them, would be altogether dependent
on the general will. But as the plan of the convention aims only at
a partial union or consolidation, the State governments would
clearly retain all the rights of sovereignty which they before had,
and which were not, by that act, EXCLUSIVELY delegated to the United
States. This exclusive delegation, or rather this alienation, of
State sovereignty, would only exist in three cases: where the
Constitution in express terms granted an exclusive authority to the
Union; where it granted in one instance an authority to the Union,
and in another prohibited the States from exercising the like
authority; and where it granted an authority to the Union, to which
a similar authority in the States would be absolutely and totally
CONTRADICTORY and REPUGNANT. I use these terms to distinguish this
last case from another which might appear to resemble it, but which
would, in fact, be essentially different; I mean where the exercise
of a concurrent jurisdiction might be productive of occasional
interferences in the POLICY of any branch of administration, but
would not imply any direct contradiction or repugnancy in point of
constitutional authority. These three cases of exclusive
jurisdiction in the federal government may be exemplified by the
following instances: The last clause but one in the eighth section
of the first article provides expressly that Congress shall exercise
``EXCLUSIVE LEGISLATION'' over the district to be appropriated as
the seat of government. This answers to the first case. The first
clause of the same section empowers Congress ``TO LAY AND COLLECT
TAXES, DUTIES, IMPOSTS AND EXCISES''; and the second clause of the
tenth section of the same article declares that, ``NO STATE SHALL,
without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS, except for the purpose of executing its
inspection laws.'' Hence would result an exclusive power in the
Union to lay duties on imports and exports, with the particular
exception mentioned; but this power is abridged by another clause,
which declares that no tax or duty shall be laid on articles
exported from any State; in consequence of which qualification, it
now only extends to the DUTIES ON IMPORTS. This answers to the
second case. The third will be found in that clause which declares
that Congress shall have power ``to establish an UNIFORM RULE of
naturalization throughout the United States.'' This must
necessarily be exclusive; because if each State had power to
prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
A case which may perhaps be thought to resemble the latter, but
which is in fact widely different, affects the question immediately
under consideration. I mean the power of imposing taxes on all
articles other than exports and imports. This, I contend, is
manifestly a concurrent and coequal authority in the United States
and in the individual States. There is plainly no expression in the
granting clause which makes that power EXCLUSIVE in the Union.
There is no independent clause or sentence which prohibits the
States from exercising it. So far is this from being the case, that
a plain and conclusive argument to the contrary is to be deduced
from the restraint laid upon the States in relation to duties on
imports and exports. This restriction implies an admission that, if
it were not inserted, the States would possess the power it
excludes; and it implies a further admission, that as to all other
taxes, the authority of the States remains undiminished. In any
other view it would be both unnecessary and dangerous; it would be
unnecessary, because if the grant to the Union of the power of
laying such duties implied the exclusion of the States, or even
their subordination in this particular, there could be no need of
such a restriction; it would be dangerous, because the introduction
of it leads directly to the conclusion which has been mentioned, and
which, if the reasoning of the objectors be just, could not have
been intended; I mean that the States, in all cases to which the
restriction did not apply, would have a concurrent power of taxation
with the Union. The restriction in question amounts to what lawyers
call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an
AFFIRMANCE of another; a negation of the authority of the States to
impose taxes on imports and exports, and an affirmance of their
authority to impose them on all other articles. It would be mere
sophistry to argue that it was meant to exclude them ABSOLUTELY from
the imposition of taxes of the former kind, and to leave them at
liberty to lay others SUBJECT TO THE CONTROL of the national
legislature. The restraining or prohibitory clause only says, that
they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties;
and if we are to understand this in the sense last mentioned, the
Constitution would then be made to introduce a formal provision for
the sake of a very absurd conclusion; which is, that the States,
WITH THE CONSENT of the national legislature, might tax imports and
exports; and that they might tax every other article, UNLESS
CONTROLLED by the same body. If this was the intention, why not
leave it, in the first instance, to what is alleged to be the
natural operation of the original clause, conferring a general power
of taxation upon the Union? It is evident that this could not have
been the intention, and that it will not bear a construction of the
kind.
As to a supposition of repugnancy between the power of taxation
in the States and in the Union, it cannot be supported in that sense
which would be requisite to work an exclusion of the States. It is,
indeed, possible that a tax might be laid on a particular article by
a State which might render it INEXPEDIENT that thus a further tax
should be laid on the same article by the Union; but it would not
imply a constitutional inability to impose a further tax. The
quantity of the imposition, the expediency or inexpediency of an
increase on either side, would be mutually questions of prudence;
but there would be involved no direct contradiction of power. The
particular policy of the national and of the State systems of
finance might now and then not exactly coincide, and might require
reciprocal forbearances. It is not, however a mere possibility of
inconvenience in the exercise of powers, but an immediate
constitutional repugnancy that can by implication alienate and
extinguish a pre-existing right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases
results from the division of the sovereign power; and the rule that
all authorities, of which the States are not explicitly divested in
favor of the Union, remain with them in full vigor, is not a
theoretical consequence of that division, but is clearly admitted by
the whole tenor of the instrument which contains the articles of the
proposed Constitution. We there find that, notwithstanding the
affirmative grants of general authorities, there has been the most
pointed care in those cases where it was deemed improper that the
like authorities should reside in the States, to insert negative
clauses prohibiting the exercise of them by the States. The tenth
section of the first article consists altogether of such provisions.
This circumstance is a clear indication of the sense of the
convention, and furnishes a rule of interpretation out of the body
of the act, which justifies the position I have advanced and refutes
every hypothesis to the contrary.
PUBLIUS.
FEDERALIST No. 33
The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser.
January 3, 1788.
HAMILTON
To the People of the State of New York:
THE residue of the argument against the provisions of the
Constitution in respect to taxation is ingrafted upon the following
clause. The last clause of the eighth section of the first article
of the plan under consideration authorizes the national legislature
``to make all laws which shall be NECESSARY and PROPER for carrying
into execution THE POWERS by that Constitution vested in the
government of the United States, or in any department or officer
thereof''; and the second clause of the sixth article declares,
``that the Constitution and the laws of the United States made IN
PURSUANCE THEREOF, and the treaties made by their authority shall be
the SUPREME LAW of the land, any thing in the constitution or laws
of any State to the contrary notwithstanding.''
These two clauses have been the source of much virulent
invective and petulant declamation against the proposed Constitution.
They have been held up to the people in all the exaggerated colors
of misrepresentation as the pernicious engines by which their local
governments were to be destroyed and their liberties exterminated;
as the hideous monster whose devouring jaws would spare neither sex
nor age, nor high nor low, nor sacred nor profane; and yet, strange
as it may appear, after all this clamor, to those who may not have
happened to contemplate them in the same light, it may be affirmed
with perfect confidence that the constitutional operation of the
intended government would be precisely the same, if these clauses
were entirely obliterated, as if they were repeated in every article.
They are only declaratory of a truth which would have resulted by
necessary and unavoidable implication from the very act of
constituting a federal government, and vesting it with certain
specified powers. This is so clear a proposition, that moderation
itself can scarcely listen to the railings which have been so
copiously vented against this part of the plan, without emotions
that disturb its equanimity.
What is a power, but the ability or faculty of doing a thing?
What is the ability to do a thing, but the power of employing the
MEANS necessary to its execution? What is a LEGISLATIVE power, but
a power of making LAWS? What are the MEANS to execute a LEGISLATIVE
power but LAWS? What is the power of laying and collecting taxes,
but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and
collect taxes? What are the propermeans of executing such a power,
but NECESSARY and PROPER laws?
This simple train of inquiry furnishes us at once with a test by
which to judge of the true nature of the clause complained of. It
conducts us to this palpable truth, that a power to lay and collect
taxes must be a power to pass all laws NECESSARY and PROPER for the
execution of that power; and what does the unfortunate and
culumniated provision in question do more than declare the same
truth, to wit, that the national legislature, to whom the power of
laying and collecting taxes had been previously given, might, in the
execution of that power, pass all laws NECESSARY and PROPER to carry
it into effect? I have applied these observations thus particularly
to the power of taxation, because it is the immediate subject under
consideration, and because it is the most important of the
authorities proposed to be conferred upon the Union. But the same
process will lead to the same result, in relation to all other
powers declared in the Constitution. And it is EXPRESSLY to execute
these powers that the sweeping clause, as it has been affectedly
called, authorizes the national legislature to pass all NECESSARY
and PROPER laws. If there is any thing exceptionable, it must be
sought for in the specific powers upon which this general
declaration is predicated. The declaration itself, though it may be
chargeable with tautology or redundancy, is at least perfectly
harmless.
But SUSPICION may ask, Why then was it introduced? The answer
is, that it could only have been done for greater caution, and to
guard against all cavilling refinements in those who might hereafter
feel a disposition to curtail and evade the legitimatb authorities
of the Union. The Convention probably foresaw, what it has been a
principal aim of these papers to inculcate, that the danger which
most threatens our political welfare is that the State governments
will finally sap the foundations of the Union; and might therefore
think it necessary, in so cardinal a point, to leave nothing to
construction. Whatever may have been the inducement to it, the
wisdom of the precaution is evident from the cry which has been
raised against it; as that very cry betrays a disposition to
question the great and essential truth which it is manifestly the
object of that provision to declare.
But it may be again asked, Who is to judge of the NECESSITY and
PROPRIETY of the laws to be passed for executing the powers of the
Union? I answer, first, that this question arises as well and as
fully upon the simple grant of those powers as upon the declaratory
clause; and I answer, in the second place, that the national
government, like every other, must judge, in the first instance, of
the proper exercise of its powers, and its constituents in the last.
If the federal government should overpass the just bounds of its
authority and make a tyrannical use of its powers, the people, whose
creature it is, must appeal to the standard they have formed, and
take such measures to redress the injury done to the Constitution as
the exigency may suggest and prudence justify. The propriety of a
law, in a constitutional light, must always be determined by the
nature of the powers upon which it is founded. Suppose, by some
forced constructions of its authority (which, indeed, cannot easily
be imagined), the Federal legislature should attempt to vary the law
of descent in any State, would it not be evident that, in making
such an attempt, it had exceeded its jurisdiction, and infringed
upon that of the State? Suppose, again, that upon the pretense of
an interference with its revenues, it should undertake to abrogate a
landtax imposed by the authority of a State; would it not be
equally evident that this was an invasion of that concurrent
jurisdiction in respect to this species of tax, which its
Constitution plainly supposes to exist in the State governments? If
there ever should be a doubt on this head, the credit of it will be
entirely due to those reasoners who, in the imprudent zeal of their
animosity to the plan of the convention, have labored to envelop it
in a cloud calculated to obscure the plainest and simplest truths.
But it is said that the laws of the Union are to be the SUPREME
LAW of the land. But what inference can be drawn from this, or what
would they amount to, if they were not to be supreme? It is evident
they would amount to nothing. A LAW, by the very meaning of the
term, includes supremacy. It is a rule which those to whom it is
prescribed are bound to observe. This results from every political
association. If individuals enter into a state of society, the laws
of that society must be the supreme regulator of their conduct. If
a number of political societies enter into a larger political
society, the laws which the latter may enact, pursuant to the powers
intrusted to it by its constitution, must necessarily be supreme
over those societies, and the individuals of whom they are composed.
It would otherwise be a mere treaty, dependent on the good faith of
the parties, and not a goverment, which is only another word for
POLITICAL POWER AND SUPREMACY. But it will not follow from this
doctrine that acts of the large society which are NOT PURSUANT to
its constitutional powers, but which are invasions of the residuary
authorities of the smaller societies, will become the supreme law of
the land. These will be merely acts of usurpation, and will deserve
to be treated as such. Hence we perceive that the clause which
declares the supremacy of the laws of the Union, like the one we
have just before considered, only declares a truth, which flows
immediately and necessarily from the institution of a federal
government. It will not, I presume, have escaped observation, that
it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE
CONSTITUTION; which I mention merely as an instance of caution in
the convention; since that limitation would have been to be
understood, though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United
States would be supreme in its nature, and could not legally be
opposed or controlled, yet a law for abrogating or preventing the
collection of a tax laid by the authority of the State, (unless upon
imports and exports), would not be the supreme law of the land, but
a usurpation of power not granted by the Constitution. As far as an
improper accumulation of taxes on the same object might tend to
render the collection difficult or precarious, this would be a
mutual inconvenience, not arising from a superiority or defect of
power on either side, but from an injudicious exercise of power by
one or the other, in a manner equally disadvantageous to both. It
is to be hoped and presumed, however, that mutual interest would
dictate a concert in this respect which would avoid any material
inconvenience. The inference from the whole is, that the individual
States would, under the proposed Constitution, retain an independent
and uncontrollable authority to raise revenue to any extent of which
they may stand in need, by every kind of taxation, except duties on
imports and exports. It will be shown in the next paper that this
CONCURRENT JURISDICTION in the article of taxation was the only
admissible substitute for an entire subordination, in respect to
this branch of power, of the State authority to that of the Union.
PUBLIUS.
FEDERALIST No. 34
The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Friday, January 4, 1788.
HAMILTON
To the People of the State of New York:
I FLATTER myself it has been clearly shown in my last number
that the particular States, under the proposed Constitution, would
have COEQUAL authority with the Union in the article of revenue,
except as to duties on imports. As this leaves open to the States
far the greatest part of the resources of the community, there can
be no color for the assertion that they would not possess means as
abundant as could be desired for the supply of their own wants,
independent of all external control. That the field is sufficiently
wide will more fully appear when we come to advert to the
inconsiderable share of the public expenses for which it will fall
to the lot of the State governments to provide.
To argue upon abstract principles that this co-ordinate
authority cannot exist, is to set up supposition and theory against
fact and reality. However proper such reasonings might be to show
that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when
they are made use of to prove that it does not exist contrary to the
evidence of the fact itself. It is well known that in the Roman
republic the legislative authority, in the last resort, resided for
ages in two different political bodies not as branches of the same
legislature, but as distinct and independent legislatures, in each
of which an opposite interest prevailed: in one the patrician; in
the other, the plebian. Many arguments might have been adduced to
prove the unfitness of two such seemingly contradictory authorities,
each having power to ANNUL or REPEAL the acts of the other. But a
man would have been regarded as frantic who should have attempted at
Rome to disprove their existence. It will be readily understood
that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA.
The former, in which the people voted by centuries, was so arranged
as to give a superiority to the patrician interest; in the latter,
in which numbers prevailed, the plebian interest had an entire
predominancy. And yet these two legislatures coexisted for ages,
and the Roman republic attained to the utmost height of human
greatness.
In the case particularly under consideration, there is no such
contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there
is little reason to apprehend any inconvenience; because, in a
short course of time, the wants of the States will naturally reduce
themselves within A VERY NARROW COMPASS; and in the interim, the
United States will, in all probability, find it convenient to
abstain wholly from those objects to which the particular States
would be inclined to resort.
To form a more precise judgment of the true merits of this
question, it will be well to advert to the proportion between the
objects that will require a federal provision in respect to revenue,
and those which will require a State provision. We shall discover
that the former are altogether unlimited, and that the latter are
circumscribed within very moderate bounds. In pursuing this
inquiry, we must bear in mind that we are not to confine our view to
the present period, but to look forward to remote futurity.
Constitutions of civil government are not to be framed upon a
calculation of existing exigencies, but upon a combination of these
with the probable exigencies of ages, according to the natural and
tried course of human affairs. Nothing, therefore, can be more
fallacious than to infer the extent of any power, proper to be
lodged in the national government, from an estimate of its immediate
necessities. There ought to be a CAPACITY to provide for future
contingencies as they may happen; and as these are illimitable in
their nature, it is impossible safely to limit that capacity. It is
true, perhaps, that a computation might be made with sufficient
accuracy to answer the purpose of the quantity of revenue requisite
to discharge the subsisting engagements of the Union, and to
maintain those establishments which, for some time to come, would
suffice in time of peace. But would it be wise, or would it not
rather be the extreme of folly, to stop at this point, and to leave
the government intrusted with the care of the national defense in a
state of absolute incapacity to provide for the protection of the
community against future invasions of the public peace, by foreign
war or domestic convulsions? If, on the contrary, we ought to
exceed this point, where can we stop, short of an indefinite power
of providing for emergencies as they may arise? Though it is easy
to assert, in general terms, the possibility of forming a rational
judgment of a due provision against probable dangers, yet we may
safely challenge those who make the assertion to bring forward their
data, and may affirm that they would be found as vague and uncertain
as any that could be produced to establish the probable duration of
the world. Observations confined to the mere prospects of internal
attacks can deserve no weight; though even these will admit of no
satisfactory calculation: but if we mean to be a commercial people,
it must form a part of our policy to be able one day to defend that
commerce. The support of a navy and of naval wars would involve
contingencies that must baffle all the efforts of political
arithmetic.
Admitting that we ought to try the novel and absurd experiment
in politics of tying up the hands of government from offensive war
founded upon reasons of state, yet certainly we ought not to disable
it from guarding the community against the ambition or enmity of
other nations. A cloud has been for some time hanging over the
European world. If it should break forth into a storm, who can
insure us that in its progress a part of its fury would not be spent
upon us? No reasonable man would hastily pronounce that we are
entirely out of its reach. Or if the combustible materials that now
seem to be collecting should be dissipated without coming to
maturity, or if a flame should be kindled without extending to us,
what security can we have that our tranquillity will long remain
undisturbed from some other cause or from some other quarter? Let
us recollect that peace or war will not always be left to our
option; that however moderate or unambitious we may be, we cannot
count upon the moderation, or hope to extinguish the ambition of
others. Who could have imagined at the conclusion of the last war
that France and Britain, wearied and exhausted as they both were,
would so soon have looked with so hostile an aspect upon each other?
To judge from the history of mankind, we shall be compelled to
conclude that the fiery and destructive passions of war reign in the
human breast with much more powerful sway than the mild and
beneficent sentiments of peace; and that to model our political
systems upon speculations of lasting tranquillity, is to calculate
on the weaker springs of the human character.
What are the chief sources of expense in every government? What
has occasioned that enormous accumulation of debts with which
several of the European nations are oppressed? The answers plainly
is, wars and rebellions; the support of those institutions which
are necessary to guard the body politic against these two most
mortal diseases of society. The expenses arising from those
institutions which are relative to the mere domestic police of a
state, to the support of its legislative, executive, and judicial
departments, with their different appendages, and to the
encouragement of agriculture and manufactures (which will comprehend
almost all the objects of state expenditure), are insignificant in
comparison with those which relate to the national defense.
In the kingdom of Great Britain, where all the ostentatious
apparatus of monarchy is to be provided for, not above a fifteenth
part of the annual income of the nation is appropriated to the class
of expenses last mentioned; the other fourteen fifteenths are
absorbed in the payment of the interest of debts contracted for
carrying on the wars in which that country has been engaged, and in
the maintenance of fleets and armies. If, on the one hand, it
should be observed that the expenses incurred in the prosecution of
the ambitious enterprises and vainglorious pursuits of a monarchy
are not a proper standard by which to judge of those which might be
necessary in a republic, it ought, on the other hand, to be remarked
that there should be as great a disproportion between the profusion
and extravagance of a wealthy kingdom in its domestic
administration, and the frugality and economy which in that
particular become the modest simplicity of republican government.
If we balance a proper deduction from one side against that which
it is supposed ought to be made from the other, the proportion may
still be considered as holding good.
But let us advert to the large debt which we have ourselves
contracted in a single war, and let us only calculate on a common
share of the events which disturb the peace of nations, and we shall
instantly perceive, without the aid of any elaborate illustration,
that there must always be an immense disproportion between the
objects of federal and state expenditures. It is true that several
of the States, separately, are encumbered with considerable debts,
which are an excrescence of the late war. But this cannot happen
again, if the proposed system be adopted; and when these debts are
discharged, the only call for revenue of any consequence, which the
State governments will continue to experience, will be for the mere
support of their respective civil list; to which, if we add all
contingencies, the total amount in every State ought to fall
considerably short of two hundred thousand pounds.
In framing a government for posterity as well as ourselves, we
ought, in those provisions which are designed to be permanent, to
calculate, not on temporary, but on permanent causes of expense. If
this principle be a just one our attention would be directed to a
provision in favor of the State governments for an annual sum of
about two hundred thousand pounds; while the exigencies of the
Union could be susceptible of no limits, even in imagination. In
this view of the subject, by what logic can it be maintained that
the local governments ought to command, in perpetuity, an EXCLUSIVE
source of revenue for any sum beyond the extent of two hundred
thousand pounds? To extend its power further, in EXCLUSION of the
authority of the Union, would be to take the resources of the
community out of those hands which stood in need of them for the
public welfare, in order to put them into other hands which could
have no just or proper occasion for them.
Suppose, then, the convention had been inclined to proceed upon
the principle of a repartition of the objects of revenue, between
the Union and its members, in PROPORTION to their comparative
necessities; what particular fund could have been selected for the
use of the States, that would not either have been too much or too
little too little for their present, too much for their future
wants? As to the line of separation between external and internal
taxes, this would leave to the States, at a rough computation, the
command of two thirds of the resources of the community to defray
from a tenth to a twentieth part of its expenses; and to the Union,
one third of the resources of the community, to defray from nine
tenths to nineteen twentieths of its expenses. If we desert this
boundary and content ourselves with leaving to the States an
exclusive power of taxing houses and lands, there would still be a
great disproportion between the MEANS and the END; the possession
of one third of the resources of the community to supply, at most,
one tenth of its wants. If any fund could have been selected and
appropriated, equal to and not greater than the object, it would
have been inadequate to the discharge of the existing debts of the
particular States, and would have left them dependent on the Union
for a provision for this purpose.
The preceding train of observation will justify the position
which has been elsewhere laid down, that ``A CONCURRENT JURISDICTION
in the article of taxation was the only admissible substitute for an
entire subordination, in respect to this branch of power, of State
authority to that of the Union.'' Any separation of the objects of
revenue that could have been fallen upon, would have amounted to a
sacrifice of the great INTERESTS of the Union to the POWER of the
individual States. The convention thought the concurrent
jurisdiction preferable to that subordination; and it is evident
that it has at least the merit of reconciling an indefinite
constitutional power of taxation in the Federal government with an
adequate and independent power in the States to provide for their
own necessities. There remain a few other lights, in which this
important subject of taxation will claim a further consideration.
PUBLIUS.
FEDERALIST No. 35
The Same Subject Continued
(Concerning the General Power of Taxation)
For the Independent Journal.
HAMILTON
To the People of the State of New York:
BEFORE we proceed to examine any other objections to an
indefinite power of taxation in the Union, I shall make one general
remark; which is, that if the jurisdiction of the national
government, in the article of revenue, should be restricted to
particular objects, it would naturally occasion an undue proportion
of the public burdens to fall upon those objects. Two evils would
spring from this source: the oppression of particular branches of
industry; and an unequal distribution of the taxes, as well among
the several States as among the citizens of the same State.
Suppose, as has been contended for, the federal power of
taxation were to be confined to duties on imports, it is evident
that the government, for want of being able to command other
resources, would frequently be tempted to extend these duties to an
injurious excess. There are persons who imagine that they can never
be carried to too great a length; since the higher they are, the
more it is alleged they will tend to discourage an extravagant
consumption, to produce a favorable balance of trade, and to promote
domestic manufactures. But all extremes are pernicious in various
ways. Exorbitant duties on imported articles would beget a general
spirit of smuggling; which is always prejudicial to the fair
trader, and eventually to the revenue itself: they tend to render
other classes of the community tributary, in an improper degree, to
the manufacturing classes, to whom they give a premature monopoly of
the markets; they sometimes force industry out of its more natural
channels into others in which it flows with less advantage; and in
the last place, they oppress the merchant, who is often obliged to
pay them himself without any retribution from the consumer. When
the demand is equal to the quantity of goods at market, the consumer
generally pays the duty; but when the markets happen to be
overstocked, a great proportion falls upon the merchant, and
sometimes not only exhausts his profits, but breaks in upon his
capital. I am apt to think that a division of the duty, between the
seller and the buyer, more often happens than is commonly imagined.
It is not always possible to raise the price of a commodity in
exact proportion to every additional imposition laid upon it. The
merchant, especially in a country of small commercial capital, is
often under a necessity of keeping prices down in order to a more
expeditious sale.
The maxim that the consumer is the payer, is so much oftener
true than the reverse of the proposition, that it is far more
equitable that the duties on imports should go into a common stock,
than that they should redound to the exclusive benefit of the
importing States. But it is not so generally true as to render it
equitable, that those duties should form the only national fund.
When they are paid by the merchant they operate as an additional
tax upon the importing State, whose citizens pay their proportion of
them in the character of consumers. In this view they are
productive of inequality among the States; which inequality would
be increased with the increased extent of the duties. The
confinement of the national revenues to this species of imposts
would be attended with inequality, from a different cause, between
the manufacturing and the non-manufacturing States. The States
which can go farthest towards the supply of their own wants, by
their own manufactures, will not, according to their numbers or
wealth, consume so great a proportion of imported articles as those
States which are not in the same favorable situation. They would
not, therefore, in this mode alone contribute to the public treasury
in a ratio to their abilities. To make them do this it is necessary
that recourse be had to excises, the proper objects of which are
particular kinds of manufactures. New York is more deeply
interested in these considerations than such of her citizens as
contend for limiting the power of the Union to external taxation may
be aware of. New York is an importing State, and is not likely
speedily to be, to any great extent, a manufacturing State. She
would, of course, suffer in a double light from restraining the
jurisdiction of the Union to commercial imposts.
So far as these observations tend to inculcate a danger of the
import duties being extended to an injurious extreme it may be
observed, conformably to a remark made in another part of these
papers, that the interest of the revenue itself would be a
sufficient guard against such an extreme. I readily admit that this
would be the case, as long as other resources were open; but if the
avenues to them were closed, HOPE, stimulated by necessity, would
beget experiments, fortified by rigorous precautions and additional
penalties, which, for a time, would have the intended effect, till
there had been leisure to contrive expedients to elude these new
precautions. The first success would be apt to inspire false
opinions, which it might require a long course of subsequent
experience to correct. Necessity, especially in politics, often
occasions false hopes, false reasonings, and a system of measures
correspondingly erroneous. But even if this supposed excess should
not be a consequence of the limitation of the federal power of
taxation, the inequalities spoken of would still ensue, though not
in the same degree, from the other causes that have been noticed.
Let us now return to the examination of objections.
One which, if we may judge from the frequency of its repetition,
seems most to be relied on, is, that the House of Representatives is
not sufficiently numerous for the reception of all the different
classes of citizens, in order to combine the interests and feelings
of every part of the community, and to produce a due sympathy
between the representative body and its constituents. This argument
presents itself under a very specious and seducing form; and is
well calculated to lay hold of the prejudices of those to whom it is
addressed. But when we come to dissect it with attention, it will
appear to be made up of nothing but fair-sounding words. The object
it seems to aim at is, in the first place, impracticable, and in the
sense in which it is contended for, is unnecessary. I reserve for
another place the discussion of the question which relates to the
sufficiency of the representative body in respect to numbers, and
shall content myself with examining here the particular use which
has been made of a contrary supposition, in reference to the
immediate subject of our inquiries.
The idea of an actual representation of all classes of the
people, by persons of each class, is altogether visionary. Unless
it were expressly provided in the Constitution, that each different
occupation should send one or more members, the thing would never
take place in practice. Mechanics and manufacturers will always be
inclined, with few exceptions, to give their votes to merchants, in
preference to persons of their own professions or trades. Those
discerning citizens are well aware that the mechanic and
manufacturing arts furnish the materials of mercantile enterprise
and industry. Many of them, indeed, are immediately connected with
the operations of commerce. They know that the merchant is their
natural patron and friend; and they are aware, that however great
the confidence they may justly feel in their own good sense, their
interests can be more effectually promoted by the merchant than by
themselves. They are sensible that their habits in life have not
been such as to give them those acquired endowments, without which,
in a deliberative assembly, the greatest natural abilities are for
the most part useless; and that the influence and weight, and
superior acquirements of the merchants render them more equal to a
contest with any spirit which might happen to infuse itself into the
public councils, unfriendly to the manufacturing and trading
interests. These considerations, and many others that might be
mentioned prove, and experience confirms it, that artisans and
manufacturers will commonly be disposed to bestow their votes upon
merchants and those whom they recommend. We must therefore consider
merchants as the natural representatives of all these classes of the
community.
With regard to the learned professions, little need be observed;
they truly form no distinct interest in society, and according to
their situation and talents, will be indiscriminately the objects of
the confidence and choice of each other, and of other parts of the
community.
Nothing remains but the landed interest; and this, in a
political view, and particularly in relation to taxes, I take to be
perfectly united, from the wealthiest landlord down to the poorest
tenant. No tax can be laid on land which will not affect the
proprietor of millions of acres as well as the proprietor of a
single acre. Every landholder will therefore have a common interest
to keep the taxes on land as low as possible; and common interest
may always be reckoned upon as the surest bond of sympathy. But if
we even could suppose a distinction of interest between the opulent
landholder and the middling farmer, what reason is there to
conclude, that the first would stand a better chance of being
deputed to the national legislature than the last? If we take fact
as our guide, and look into our own senate and assembly, we shall
find that moderate proprietors of land prevail in both; nor is this
less the case in the senate, which consists of a smaller number,
than in the assembly, which is composed of a greater number. Where
the qualifications of the electors are the same, whether they have
to choose a small or a large number, their votes will fall upon
those in whom they have most confidence; whether these happen to be
men of large fortunes, or of moderate property, or of no property at
all.
It is said to be necessary, that all classes of citizens should
have some of their own number in the representative body, in order
that their feelings and interests may be the better understood and
attended to. But we have seen that this will never happen under any
arrangement that leaves the votes of the people free. Where this is
the case, the representative body, with too few exceptions to have
any influence on the spirit of the government, will be composed of
landholders, merchants, and men of the learned professions. But
where is the danger that the interests and feelings of the different
classes of citizens will not be understood or attended to by these
three descriptions of men? Will not the landholder know and feel
whatever will promote or insure the interest of landed property?
And will he not, from his own interest in that species of property,
be sufficiently prone to resist every attempt to prejudice or
encumber it? Will not the merchant understand and be disposed to
cultivate, as far as may be proper, the interests of the mechanic
and manufacturing arts, to which his commerce is so nearly allied?
Will not the man of the learned profession, who will feel a
neutrality to the rivalships between the different branches of
industry, be likely to prove an impartial arbiter between them,
ready to promote either, so far as it shall appear to him conducive
to the general interests of the society?
If we take into the account the momentary humors or dispositions
which may happen to prevail in particular parts of the society, and
to which a wise administration will never be inattentive, is the man
whose situation leads to extensive inquiry and information less
likely to be a competent judge of their nature, extent, and
foundation than one whose observation does not travel beyond the
circle of his neighbors and acquaintances? Is it not natural that a
man who is a candidate for the favor of the people, and who is
dependent on the suffrages of his fellow-citizens for the
continuance of his public honors, should take care to inform himself
of their dispositions and inclinations, and should be willing to
allow them their proper degree of influence upon his conduct? This
dependence, and the necessity of being bound himself, and his
posterity, by the laws to which he gives his assent, are the true,
and they are the strong chords of sympathy between the
representative and the constituent.
There is no part of the administration of government that
requires extensive information and a thorough knowledge of the
principles of political economy, so much as the business of taxation.
The man who understands those principles best will be least likely
to resort to oppressive expedients, or sacrifice any particular
class of citizens to the procurement of revenue. It might be
demonstrated that the most productive system of finance will always
be the least burdensome. There can be no doubt that in order to a
judicious exercise of the power of taxation, it is necessary that
the person in whose hands it should be acquainted with the general
genius, habits, and modes of thinking of the people at large, and
with the resources of the country. And this is all that can be
reasonably meant by a knowledge of the interests and feelings of the
people. In any other sense the proposition has either no meaning,
or an absurd one. And in that sense let every considerate citizen
judge for himself where the requisite qualification is most likely
to be found.
PUBLIUS.
FEDERALIST No. 36
The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Tuesday January 8, 1788.
HAMILTON
To the People of the State of New York:
WE HAVE seen that the result of the observations, to which the
foregoing number has been principally devoted, is, that from the
natural operation of the different interests and views of the
various classes of the community, whether the representation of the
people be more or less numerous, it will consist almost entirely of
proprietors of land, of merchants, and of members of the learned
professions, who will truly represent all those different interests
and views. If it should be objected that we have seen other
descriptions of men in the local legislatures, I answer that it is
admitted there are exceptions to the rule, but not in sufficient
number to influence the general complexion or character of the
government. There are strong minds in every walk of life that will
rise superior to the disadvantages of situation, and will command
the tribute due to their merit, not only from the classes to which
they particularly belong, but from the society in general. The door
ought to be equally open to all; and I trust, for the credit of
human nature, that we shall see examples of such vigorous plants
flourishing in the soil of federal as well as of State legislation;
but occasional instances of this sort will not render the reasoning
founded upon the general course of things, less conclusive.
The subject might be placed in several other lights that would
all lead to the same result; and in particular it might be asked,
What greater affinity or relation of interest can be conceived
between the carpenter and blacksmith, and the linen manufacturer or
stocking weaver, than between the merchant and either of them? It
is notorious that there are often as great rivalships between
different branches of the mechanic or manufacturing arts as there
are between any of the departments of labor and industry; so that,
unless the representative body were to be far more numerous than
would be consistent with any idea of regularity or wisdom in its
deliberations, it is impossible that what seems to be the spirit of
the objection we have been considering should ever be realized in
practice. But I forbear to dwell any longer on a matter which has
hitherto worn too loose a garb to admit even of an accurate
inspection of its real shape or tendency.
There is another objection of a somewhat more precise nature
that claims our attention. It has been asserted that a power of
internal taxation in the national legislature could never be
exercised with advantage, as well from the want of a sufficient
knowledge of local circumstances, as from an interference between
the revenue laws of the Union and of the particular States. The
supposition of a want of proper knowledge seems to be entirely
destitute of foundation. If any question is depending in a State
legislature respecting one of the counties, which demands a
knowledge of local details, how is it acquired? No doubt from the
information of the members of the county. Cannot the like knowledge
be obtained in the national legislature from the representatives of
each State? And is it not to be presumed that the men who will
generally be sent there will be possessed of the necessary degree of
intelligence to be able to communicate that information? Is the
knowledge of local circumstances, as applied to taxation, a minute
topographical acquaintance with all the mountains, rivers, streams,
highways, and bypaths in each State; or is it a general
acquaintance with its situation and resources, with the state of its
agriculture, commerce, manufactures, with the nature of its products
and consumptions, with the different degrees and kinds of its
wealth, property, and industry?
Nations in general, even under governments of the more popular
kind, usually commit the administration of their finances to single
men or to boards composed of a few individuals, who digest and
prepare, in the first instance, the plans of taxation, which are
afterwards passed into laws by the authority of the sovereign or
legislature.
Inquisitive and enlightened statesmen are deemed everywhere best
qualified to make a judicious selection of the objects proper for
revenue; which is a clear indication, as far as the sense of
mankind can have weight in the question, of the species of knowledge
of local circumstances requisite to the purposes of taxation.
The taxes intended to be comprised under the general
denomination of internal taxes may be subdivided into those of the
DIRECT and those of the INDIRECT kind. Though the objection be made
to both, yet the reasoning upon it seems to be confined to the
former branch. And indeed, as to the latter, by which must be
understood duties and excises on articles of consumption, one is at
a loss to conceive what can be the nature of the difficulties
apprehended. The knowledge relating to them must evidently be of a
kind that will either be suggested by the nature of the article
itself, or can easily be procured from any well-informed man,
especially of the mercantile class. The circumstances that may
distinguish its situation in one State from its situation in another
must be few, simple, and easy to be comprehended. The principal
thing to be attended to, would be to avoid those articles which had
been previously appropriated to the use of a particular State; and
there could be no difficulty in ascertaining the revenue system of
each. This could always be known from the respective codes of laws,
as well as from the information of the members from the several
States.
The objection, when applied to real property or to houses and
lands, appears to have, at first sight, more foundation, but even in
this view it will not bear a close examination. Land taxes are co
monly laid in one of two modes, either by ACTUAL valuations,
permanent or periodical, or by OCCASIONAL assessments, at the
discretion, or according to the best judgment, of certain officers
whose duty it is to make them. In either case, the EXECUTION of the
business, which alone requires the knowledge of local details, must
be devolved upon discreet persons in the character of commissioners
or assessors, elected by the people or appointed by the government
for the purpose. All that the law can do must be to name the
persons or to prescribe the manner of their election or appointment,
to fix their numbers and qualifications and to draw the general
outlines of their powers and duties. And what is there in all this
that cannot as well be performed by the national legislature as by a
State legislature? The attention of either can only reach to
general principles; local details, as already observed, must be
referred to those who are to execute the plan.
But there is a simple point of view in which this matter may be
placed that must be altogether satisfactory. The national
legislature can make use of the SYSTEM OF EACH STATE WITHIN THAT
STATE. The method of laying and collecting this species of taxes in
each State can, in all its parts, be adopted and employed by the
federal government.
Let it be recollected that the proportion of these taxes is not
to be left to the discretion of the national legislature, but is to
be determined by the numbers of each State, as described in the
second section of the first article. An actual census or
enumeration of the people must furnish the rule, a circumstance
which effectually shuts the door to partiality or oppression. The
abuse of this power of taxation seems to have been provided against
with guarded circumspection. In addition to the precaution just
mentioned, there is a provision that ``all duties, imposts, and
excises shall be UNIFORM throughout the United States.''
It has been very properly observed by different speakers and
writers on the side of the Constitution, that if the exercise of the
power of internal taxation by the Union should be discovered on
experiment to be really inconvenient, the federal government may
then forbear the use of it, and have recourse to requisitions in its
stead. By way of answer to this, it has been triumphantly asked,
Why not in the first instance omit that ambiguous power, and rely
upon the latter resource? Two solid answers may be given. The
first is, that the exercise of that power, if convenient, will be
preferable, because it will be more effectual; and it is impossible
to prove in theory, or otherwise than by the experiment, that it
cannot be advantageously exercised. The contrary, indeed, appears
most probable. The second answer is, that the existence of such a
power in the Constitution will have a strong influence in giving
efficacy to requisitions. When the States know that the Union can
apply itself without their agency, it will be a powerful motive for
exertion on their part.
As to the interference of the revenue laws of the Union, and of
its members, we have already seen that there can be no clashing or
repugnancy of authority. The laws cannot, therefore, in a legal
sense, interfere with each other; and it is far from impossible to
avoid an interference even in the policy of their different systems.
An effectual expedient for this purpose will be, mutually, to
abstain from those objects which either side may have first had
recourse to. As neither can CONTROL the other, each will have an
obvious and sensible interest in this reciprocal forbearance. And
where there is an IMMEDIATE common interest, we may safely count
upon its operation. When the particular debts of the States are
done away, and their expenses come to be limited within their
natural compass, the possibility almost of interference will vanish.
A small land tax will answer the purpose of the States, and will be
their most simple and most fit resource.
Many spectres have been raised out of this power of internal
taxation, to excite the apprehensions of the people: double sets of
revenue officers, a duplication of their burdens by double
taxations, and the frightful forms of odious and oppressive
poll-taxes, have been played off with all the ingenious dexterity of
political legerdemain.
As to the first point, there are two cases in which there can be
no room for double sets of officers: one, where the right of
imposing the tax is exclusively vested in the Union, which applies
to the duties on imports; the other, where the object has not
fallen under any State regulation or provision, which may be
applicable to a variety of objects. In other cases, the probability
is that the United States will either wholly abstain from the
objects preoccupied for local purposes, or will make use of the
State officers and State regulations for collecting the additional
imposition. This will best answer the views of revenue, because it
will save expense in the collection, and will best avoid any
occasion of disgust to the State governments and to the people. At
all events, here is a practicable expedient for avoiding such an
inconvenience; and nothing more can be required than to show that
evils predicted to not necessarily result from the plan.
As to any argument derived from a supposed system of influence,
it is a sufficient answer to say that it ought not to be presumed;
but the supposition is susceptible of a more precise answer. If
such a spirit should infest the councils of the Union, the most
certain road to the accomplishment of its aim would be to employ the
State officers as much as possible, and to attach them to the Union
by an accumulation of their emoluments. This would serve to turn
the tide of State influence into the channels of the national
government, instead of making federal influence flow in an opposite
and adverse current. But all suppositions of this kind are
invidious, and ought to be banished from the consideration of the
great question before the people. They can answer no other end than
to cast a mist over the truth.
As to the suggestion of double taxation, the answer is plain.
The wants of the Union are to be supplied in one way or another;
if to be done by the authority of the federal government, it will
not be to be done by that of the State government. The quantity of
taxes to be paid by the community must be the same in either case;
with this advantage, if the provision is to be made by the
Union that the capital resource of commercial imposts, which is the
most convenient branch of revenue, can be prudently improved to a
much greater extent under federal than under State regulation, and
of course will render it less necessary to recur to more
inconvenient methods; and with this further advantage, that as far
as there may be any real difficulty in the exercise of the power of
internal taxation, it will impose a disposition to greater care in
the choice and arrangement of the means; and must naturally tend to
make it a fixed point of policy in the national administration to go
as far as may be practicable in making the luxury of the rich
tributary to the public treasury, in order to diminish the necessity
of those impositions which might create dissatisfaction in the
poorer and most numerous classes of the society. Happy it is when
the interest which the government has in the preservation of its own
power, coincides with a proper distribution of the public burdens,
and tends to guard the least wealthy part of the community from
oppression!
As to poll taxes, I, without scruple, confess my disapprobation
of them; and though they have prevailed from an early period in
those States [1] which have uniformly been the most tenacious of
their rights, I should lament to see them introduced into practice
under the national government. But does it follow because there is
a power to lay them that they will actually be laid? Every State in
the Union has power to impose taxes of this kind; and yet in
several of them they are unknown in practice. Are the State
governments to be stigmatized as tyrannies, because they possess
this power? If they are not, with what propriety can the like power
justify such a charge against the national government, or even be
urged as an obstacle to its adoption? As little friendly as I am to
the species of imposition, I still feel a thorough conviction that
the power of having recourse to it ought to exist in the federal
government. There are certain emergencies of nations, in which
expedients, that in the ordinary state of things ought to be
forborne, become essential to the public weal. And the government,
from the possibility of such emergencies, ought ever to have the
option of making use of them. The real scarcity of objects in this
country, which may be considered as productive sources of revenue,
is a reason peculiar to itself, for not abridging the discretion of
the national councils in this respect. There may exist certain
critical and tempestuous conjunctures of the State, in which a poll
tax may become an inestimable resource. And as I know nothing to
exempt this portion of the globe from the common calamities that
have befallen other parts of it, I acknowledge my aversion to every
project that is calculated to disarm the government of a single
weapon, which in any possible contingency might be usefully employed
for the general defense and security.
I have now gone through the examination of such of the powers
proposed to be vested in the United States, which may be considered
as having an immediate relation to the energy of the government;
and have endeavored to answer the principal objections which have
been made to them. I have passed over in silence those minor
authorities, which are either too inconsiderable to have been
thought worthy of the hostilities of the opponents of the
Constitution, or of too manifest propriety to admit of controversy.
The mass of judiciary power, however, might have claimed an
investigation under this head, had it not been for the consideration
that its organization and its extent may be more advantageously
considered in connection. This has determined me to refer it to the
branch of our inquiries upon which we shall next enter.
PUBLIUS.
FNA1-@1 The New England States.
FEDERALIST No. 37
Concerning the Difficulties of the Convention in Devising a Proper
Form of Government
From the Daily Advertiser.
Friday, January 11, 1788.
MADISON
To the People of the State of New York:
IN REVIEWING the defects of the existing Confederation, and
showing that they cannot be supplied by a government of less energy
than that before the public, several of the most important
principles of the latter fell of course under consideration. But as
the ultimate object of these papers is to determine clearly and
fully the merits of this Constitution, and the expediency of
adopting it, our plan cannot be complete without taking a more
critical and thorough survey of the work of the convention, without
examining it on all its sides, comparing it in all its parts, and
calculating its probable effects.
That this remaining task may be executed under impressions
conducive to a just and fair result, some reflections must in this
place be indulged, which candor previously suggests.
It is a misfortune, inseparable from human affairs, that public
measures are rarely investigated with that spirit of moderation
which is essential to a just estimate of their real tendency to
advance or obstruct the public good; and that this spirit is more
apt to be diminished than promoted, by those occasions which require
an unusual exercise of it. To those who have been led by experience
to attend to this consideration, it could not appear surprising,
that the act of the convention, which recommends so many important
changes and innovations, which may be viewed in so many lights and
relations, and which touches the springs of so many passions and
interests, should find or excite dispositions unfriendly, both on
one side and on the other, to a fair discussion and accurate
judgment of its merits. In some, it has been too evident from their
own publications, that they have scanned the proposed Constitution,
not only with a predisposition to censure, but with a
predetermination to condemn; as the language held by others betrays
an opposite predetermination or bias, which must render their
opinions also of little moment in the question. In placing,
however, these different characters on a level, with respect to the
weight of their opinions, I wish not to insinuate that there may not
be a material difference in the purity of their intentions. It is
but just to remark in favor of the latter description, that as our
situation is universally admitted to be peculiarly critical, and to
require indispensably that something should be done for our relief,
the predetermined patron of what has been actually done may have
taken his bias from the weight of these considerations, as well as
from considerations of a sinister nature. The predetermined
adversary, on the other hand, can have been governed by no venial
motive whatever. The intentions of the first may be upright, as
they may on the contrary be culpable. The views of the last cannot
be upright, and must be culpable. But the truth is, that these
papers are not addressed to persons falling under either of these
characters. They solicit the attention of those only, who add to a
sincere zeal for the happiness of their country, a temper favorable
to a just estimate of the means of promoting it.
Persons of this character will proceed to an examination of the
plan submitted by the convention, not only without a disposition to
find or to magnify faults; but will see the propriety of
reflecting, that a faultless plan was not to be expected. Nor will
they barely make allowances for the errors which may be chargeable
on the fallibility to which the convention, as a body of men, were
liable; but will keep in mind, that they themselves also are but
men, and ought not to assume an infallibility in rejudging the
fallible opinions of others.
With equal readiness will it be perceived, that besides these
inducements to candor, many allowances ought to be made for the
difficulties inherent in the very nature of the undertaking referred
to the convention.
The novelty of the undertaking immediately strikes us. It has
been shown in the course of these papers, that the existing
Confederation is founded on principles which are fallacious; that
we must consequently change this first foundation, and with it the
superstructure resting upon it. It has been shown, that the other
confederacies which could be consulted as precedents have been
vitiated by the same erroneous principles, and can therefore furnish
no other light than that of beacons, which give warning of the
course to be shunned, without pointing out that which ought to be
pursued. The most that the convention could do in such a situation,
was to avoid the errors suggested by the past experience of other
countries, as well as of our own; and to provide a convenient mode
of rectifying their own errors, as future experiences may unfold
them.
Among the difficulties encountered by the convention, a very
important one must have lain in combining the requisite stability
and energy in government, with the inviolable attention due to
liberty and to the republican form. Without substantially
accomplishing this part of their undertaking, they would have very
imperfectly fulfilled the object of their appointment, or the
expectation of the public; yet that it could not be easily
accomplished, will be denied by no one who is unwilling to betray
his ignorance of the subject. Energy in government is essential to
that security against external and internal danger, and to that
prompt and salutary execution of the laws which enter into the very
definition of good government. Stability in government is essential
to national character and to the advantages annexed to it, as well
as to that repose and confidence in the minds of the people, which
are among the chief blessings of civil society. An irregular and
mutable legislation is not more an evil in itself than it is odious
to the people; and it may be pronounced with assurance that the
people of this country, enlightened as they are with regard to the
nature, and interested, as the great body of them are, in the
effects of good government, will never be satisfied till some remedy
be applied to the vicissitudes and uncertainties which characterize
the State administrations. On comparing, however, these valuable
ingredients with the vital principles of liberty, we must perceive
at once the difficulty of mingling them together in their due
proportions. The genius of republican liberty seems to demand on
one side, not only that all power should be derived from the people,
but that those intrusted with it should be kept in independence on
the people, by a short duration of their appointments; and that
even during this short period the trust should be placed not in a
few, but a number of hands. Stability, on the contrary, requires
that the hands in which power is lodged should continue for a length
of time the same. A frequent change of men will result from a
frequent return of elections; and a frequent change of measures
from a frequent change of men: whilst energy in government requires
not only a certain duration of power, but the execution of it by a
single hand.
How far the convention may have succeeded in this part of their
work, will better appear on a more accurate view of it. From the
cursory view here taken, it must clearly appear to have been an
arduous part.
Not less arduous must have been the task of marking the proper
line of partition between the authority of the general and that of
the State governments. Every man will be sensible of this
difficulty, in proportion as he has been accustomed to contemplate
and discriminate objects extensive and complicated in their nature.
The faculties of the mind itself have never yet been distinguished
and defined, with satisfactory precision, by all the efforts of the
most acute and metaphysical philosophers. Sense, perception,
judgment, desire, volition, memory, imagination, are found to be
separated by such delicate shades and minute gradations that their
boundaries have eluded the most subtle investigations, and remain a
pregnant source of ingenious disquisition and controversy. The
boundaries between the great kingdom of nature, and, still more,
between the various provinces, and lesser portions, into which they
are subdivided, afford another illustration of the same important
truth. The most sagacious and laborious naturalists have never yet
succeeded in tracing with certainty the line which separates the
district of vegetable life from the neighboring region of
unorganized matter, or which marks the ermination of the former and
the commencement of the animal empire. A still greater obscurity
lies in the distinctive characters by which the objects in each of
these great departments of nature have been arranged and assorted.
When we pass from the works of nature, in which all the
delineations are perfectly accurate, and appear to be otherwise only
from the imperfection of the eye which surveys them, to the
institutions of man, in which the obscurity arises as well from the
object itself as from the organ by which it is contemplated, we must
perceive the necessity of moderating still further our expectations
and hopes from the efforts of human sagacity. Experience has
instructed us that no skill in the science of government has yet
been able to discriminate and define, with sufficient certainty, its
three great provinces the legislative, executive, and judiciary; or
even the privileges and powers of the different legislative branches.
Questions daily occur in the course of practice, which prove the
obscurity which reins in these subjects, and which puzzle the
greatest adepts in political science.
The experience of ages, with the continued and combined labors
of the most enlightened legislatures and jurists, has been equally
unsuccessful in delineating the several objects and limits of
different codes of laws and different tribunals of justice. The
precise extent of the common law, and the statute law, the maritime
law, the ecclesiastical law, the law of corporations, and other
local laws and customs, remains still to be clearly and finally
established in Great Britain, where accuracy in such subjects has
been more industriously pursued than in any other part of the world.
The jurisdiction of her several courts, general and local, of law,
of equity, of admiralty, etc., is not less a source of frequent and
intricate discussions, sufficiently denoting the indeterminate
limits by which they are respectively circumscribed. All new laws,
though penned with the greatest technical skill, and passed on the
fullest and most mature deliberation, are considered as more or less
obscure and equivocal, until their meaning be liquidated and
ascertained by a series of particular discussions and adjudications.
Besides the obscurity arising from the complexity of objects, and
the imperfection of the human faculties, the medium through which
the conceptions of men are conveyed to each other adds a fresh
embarrassment. The use of words is to express ideas. Perspicuity,
therefore, requires not only that the ideas should be distinctly
formed, but that they should be expressed by words distinctly and
exclusively appropriate to them. But no language is so copious as
to supply words and phrases for every complex idea, or so correct as
not to include many equivocally denoting different ideas. Hence it
must happen that however accurately objects may be discriminated in
themselves, and however accurately the discrimination may be
considered, the definition of them may be rendered inaccurate by the
inaccuracy of the terms in which it is delivered. And this
unavoidable inaccuracy must be greater or less, according to the
complexity and novelty of the objects defined. When the Almighty
himself condescends to address mankind in their own language, his
meaning, luminous as it must be, is rendered dim and doubtful by the
cloudy medium through which it is communicated.
Here, then, are three sources of vague and incorrect
definitions: indistinctness of the object, imperfection of the
organ of conception, inadequateness of the vehicle of ideas. Any
one of these must produce a certain degree of obscurity. The
convention, in delineating the boundary between the federal and
State jurisdictions, must have experienced the full effect of them
all.
To the difficulties already mentioned may be added the
interfering pretensions of the larger and smaller States. We cannot
err in supposing that the former would contend for a participation
in the government, fully proportioned to their superior wealth and
importance; and that the latter would not be less tenacious of the
equality at present enjoyed by them. We may well suppose that
neither side would entirely yield to the other, and consequently
that the struggle could be terminated only by compromise. It is
extremely probable, also, that after the ratio of representation had
been adjusted, this very compromise must have produced a fresh
struggle between the same parties, to give such a turn to the
organization of the government, and to the distribution of its
powers, as would increase the importance of the branches, in forming
which they had respectively obtained the greatest share of influence.
There are features in the Constitution which warrant each of these
suppositions; and as far as either of them is well founded, it
shows that the convention must have been compelled to sacrifice
theoretical propriety to the force of extraneous considerations.
Nor could it have been the large and small States only, which
would marshal themselves in opposition to each other on various
points. Other combinations, resulting from a difference of local
position and policy, must have created additional difficulties. As
every State may be divided into different districts, and its
citizens into different classes, which give birth to contending
interests and local jealousies, so the different parts of the United
States are distinguished from each other by a variety of
circumstances, which produce a like effect on a larger scale. And
although this variety of interests, for reasons sufficiently
explained in a former paper, may have a salutary influence on the
administration of the government when formed, yet every one must be
sensible of the contrary influence, which must have been experienced
in the task of forming it.
Would it be wonderful if, under the pressure of all these
difficulties, the convention should have been forced into some
deviations from that artificial structure and regular symmetry which
an abstract view of the subject might lead an ingenious theorist to
bestow on a Constitution planned in his closet or in his
imagination? The real wonder is that so many difficulties should
have been surmounted, and surmounted with a unanimity almost as
unprecedented as it must have been unexpected. It is impossible for
any man of candor to reflect on this circumstance without partaking
of the astonishment. It is impossible for the man of pious
reflection not to perceive in it a finger of that Almighty hand
which has been so frequently and signally extended to our relief in
the critical stages of the revolution.
We had occasion, in a former paper, to take notice of the
repeated trials which have been unsuccessfully made in the United
Netherlands for reforming the baneful and notorious vices of their
constitution. The history of almost all the great councils and
consultations held among mankind for reconciling their discordant
opinions, assuaging their mutual jealousies, and adjusting their
respective interests, is a history of factions, contentions, and
disappointments, and may be classed among the most dark and degraded
pictures which display the infirmities and depravities of the human
character. If, in a few scattered instances, a brighter aspect is
presented, they serve only as exceptions to admonish us of the
general truth; and by their lustre to darken the gloom of the
adverse prospect to which they are contrasted. In revolving the
causes from which these exceptions result, and applying them to the
particular instances before us, we are necessarily led to two
important conclusions. The first is, that the convention must have
enjoyed, in a very singular degree, an exemption from the
pestilential influence of party animosities the disease most
incident to deliberative bodies, and most apt to contaminate their
proceedings. The second conclusion is that all the deputations
composing the convention were satisfactorily accommodated by the
final act, or were induced to accede to it by a deep conviction of
the necessity of sacrificing private opinions and partial interests
to the public good, and by a despair of seeing this necessity
diminished by delays or by new experiments.
FEDERALIST No. 38
The Same Subject Continued, and the Incoherence of the Objections
to the New Plan Exposed
From the New York Packet.
Tuesday, January 15, 1788.
MADISON
To the People of the State of New York:
IT IS not a little remarkable that in every case reported by
ancient history, in which government has been established with
deliberation and consent, the task of framing it has not been
committed to an assembly of men, but has been performed by some
individual citizen of preeminent wisdom and approved integrity.
Minos, we learn, was the primitive founder of the government of
Crete, as Zaleucus was of that of the Locrians. Theseus first, and
after him Draco and Solon, instituted the government of Athens.
Lycurgus was the lawgiver of Sparta. The foundation of the
original government of Rome was laid by Romulus, and the work
completed by two of his elective successors, Numa and Tullius
Hostilius. On the abolition of royalty the consular administration
was substituted by Brutus, who stepped forward with a project for
such a reform, which, he alleged, had been prepared by Tullius
Hostilius, and to which his address obtained the assent and
ratification of the senate and people. This remark is applicable to
confederate governments also. Amphictyon, we are told, was the
author of that which bore his name. The Achaean league received its
first birth from Achaeus, and its second from Aratus.
What degree of agency these reputed lawgivers might have in
their respective establishments, or how far they might be clothed
with the legitimate authority of the people, cannot in every
instance be ascertained. In some, however, the proceeding was
strictly regular. Draco appears to have been intrusted by the
people of Athens with indefinite powers to reform its government and
laws. And Solon, according to Plutarch, was in a manner compelled,
by the universal suffrage of his fellow-citizens, to take upon him
the sole and absolute power of new-modeling the constitution. The
proceedings under Lycurgus were less regular; but as far as the
advocates for a regular reform could prevail, they all turned their
eyes towards the single efforts of that celebrated patriot and sage,
instead of seeking to bring about a revolution by the intervention
of a deliberative body of citizens.
Whence could it have proceeded, that a people, jealous as the
Greeks were of their liberty, should so far abandon the rules of
caution as to place their destiny in the hands of a single citizen?
Whence could it have proceeded, that the Athenians, a people who
would not suffer an army to be commanded by fewer than ten generals,
and who required no other proof of danger to their liberties than
the illustrious merit of a fellow-citizen, should consider one
illustrious citizen as a more eligible depositary of the fortunes of
themselves and their posterity, than a select body of citizens, from
whose common deliberations more wisdom, as well as more safety,
might have been expected? These questions cannot be fully answered,
without supposing that the fears of discord and disunion among a
number of counsellors exceeded the apprehension of treachery or
incapacity in a single individual. History informs us, likewise, of
the difficulties with which these celebrated reformers had to
contend, as well as the expedients which they were obliged to employ
in order to carry their reforms into effect. Solon, who seems to
have indulged a more temporizing policy, confessed that he had not
given to his countrymen the government best suited to their
happiness, but most tolerable to their prejudices. And Lycurgus,
more true to his object, was under the necessity of mixing a portion
of violence with the authority of superstition, and of securing his
final success by a voluntary renunciation, first of his country, and
then of his life. If these lessons teach us, on one hand, to admire
the improvement made by America on the ancient mode of preparing and
establishing regular plans of government, they serve not less, on
the other, to admonish us of the hazards and difficulties incident
to such experiments, and of the great imprudence of unnecessarily
multiplying them.
Is it an unreasonable conjecture, that the errors which may be
contained in the plan of the convention are such as have resulted
rather from the defect of antecedent experience on this complicated
and difficult subject, than from a want of accuracy or care in the
investigation of it; and, consequently such as will not be
ascertained until an actual trial shall have pointed them out? This
conjecture is rendered probable, not only by many considerations of
a general nature, but by the particular case of the Articles of
Confederation. It is observable that among the numerous objections
and amendments suggested by the several States, when these articles
were submitted for their ratification, not one is found which
alludes to the great and radical error which on actual trial has
discovered itself. And if we except the observations which New
Jersey was led to make, rather by her local situation, than by her
peculiar foresight, it may be questioned whether a single suggestion
was of sufficient moment to justify a revision of the system. There
is abundant reason, nevertheless, to suppose that immaterial as
these objections were, they would have been adhered to with a very
dangerous inflexibility, in some States, had not a zeal for their
opinions and supposed interests been stifled by the more powerful
sentiment of selfpreservation. One State, we may remember,
persisted for several years in refusing her concurrence, although
the enemy remained the whole period at our gates, or rather in the
very bowels of our country. Nor was her pliancy in the end effected
by a less motive, than the fear of being chargeable with protracting
the public calamities, and endangering the event of the contest.
Every candid reader will make the proper reflections on these
important facts.
A patient who finds his disorder daily growing worse, and that
an efficacious remedy can no longer be delayed without extreme
danger, after coolly revolving his situation, and the characters of
different physicians, selects and calls in such of them as he judges
most capable of administering relief, and best entitled to his
confidence. The physicians attend; the case of the patient is
carefully examined; a consultation is held; they are unanimously
agreed that the symptoms are critical, but that the case, with
proper and timely relief, is so far from being desperate, that it
may be made to issue in an improvement of his constitution. They
are equally unanimous in prescribing the remedy, by which this happy
effect is to be produced. The prescription is no sooner made known,
however, than a number of persons interpose, and, without denying
the reality or danger of the disorder, assure the patient that the
prescription will be poison to his constitution, and forbid him,
under pain of certain death, to make use of it. Might not the
patient reasonably demand, before he ventured to follow this advice,
that the authors of it should at least agree among themselves on
some other remedy to be substituted? And if he found them differing
as much from one another as from his first counsellors, would he not
act prudently in trying the experiment unanimously recommended by
the latter, rather than be hearkening to those who could neither
deny the necessity of a speedy remedy, nor agree in proposing one?
Such a patient and in such a situation is America at this moment.
She has been sensible of her malady. She has obtained a regular
and unanimous advice from men of her own deliberate choice. And she
is warned by others against following this advice under pain of the
most fatal consequences. Do the monitors deny the reality of her
danger? No. Do they deny the necessity of some speedy and powerful
remedy? No. Are they agreed, are any two of them agreed, in their
objections to the remedy proposed, or in the proper one to be
substituted? Let them speak for themselves. This one tells us that
the proposed Constitution ought to be rejected, because it is not a
confederation of the States, but a government over individuals.
Another admits that it ought to be a government over individuals to
a certain extent, but by no means to the extent proposed. A third
does not object to the government over individuals, or to the extent
proposed, but to the want of a bill of rights. A fourth concurs in
the absolute necessity of a bill of rights, but contends that it
ought to be declaratory, not of the personal rights of individuals,
but of the rights reserved to the States in their political capacity.
A fifth is of opinion that a bill of rights of any sort would be
superfluous and misplaced, and that the plan would be
unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly
against the unreasonable equality of representation in the Senate.
An objector in a small State is equally loud against the dangerous
inequality in the House of Representatives. From this quarter, we
are alarmed with the amazing expense, from the number of persons who
are to administer the new government. From another quarter, and
sometimes from the same quarter, on another occasion, the cry is
that the Congress will be but a shadow of a representation, and that
the government would be far less objectionable if the number and the
expense were doubled. A patriot in a State that does not import or
export, discerns insuperable objections against the power of direct
taxation. The patriotic adversary in a State of great exports and
imports, is not less dissatisfied that the whole burden of taxes may
be thrown on consumption. This politician discovers in the
Constitution a direct and irresistible tendency to monarchy; that
is equally sure it will end in aristocracy. Another is puzzled to
say which of these shapes it will ultimately assume, but sees
clearly it must be one or other of them; whilst a fourth is not
wanting, who with no less confidence affirms that the Constitution
is so far from having a bias towards either of these dangers, that
the weight on that side will not be sufficient to keep it upright
and firm against its opposite propensities. With another class of
adversaries to the Constitution the language is that the
legislative, executive, and judiciary departments are intermixed in
such a manner as to contradict all the ideas of regular government
and all the requisite precautions in favor of liberty. Whilst this
objection circulates in vague and general expressions, there are but
a few who lend their sanction to it. Let each one come forward with
his particular explanation, and scarce any two are exactly agreed
upon the subject. In the eyes of one the junction of the Senate
with the President in the responsible function of appointing to
offices, instead of vesting this executive power in the Executive
alone, is the vicious part of the organization. To another, the
exclusion of the House of Representatives, whose numbers alone could
be a due security against corruption and partiality in the exercise
of such a power, is equally obnoxious. With another, the admission
of the President into any share of a power which ever must be a
dangerous engine in the hands of the executive magistrate, is an
unpardonable violation of the maxims of republican jealousy. No
part of the arrangement, according to some, is more inadmissible
than the trial of impeachments by the Senate, which is alternately a
member both of the legislative and executive departments, when this
power so evidently belonged to the judiciary department. ``We
concur fully,'' reply others, ``in the objection to this part of the
plan, but we can never agree that a reference of impeachments to the
judiciary authority would be an amendment of the error. Our
principal dislike to the organization arises from the extensive
powers already lodged in that department.'' Even among the zealous
patrons of a council of state the most irreconcilable variance is
discovered concerning the mode in which it ought to be constituted.
The demand of one gentleman is, that the council should consist of
a small number to be appointed by the most numerous branch of the
legislature. Another would prefer a larger number, and considers it
as a fundamental condition that the appointment should be made by
the President himself.
As it can give no umbrage to the writers against the plan of the
federal Constitution, let us suppose, that as they are the most
zealous, so they are also the most sagacious, of those who think the
late convention were unequal to the task assigned them, and that a
wiser and better plan might and ought to be substituted. Let us
further suppose that their country should concur, both in this
favorable opinion of their merits, and in their unfavorable opinion
of the convention; and should accordingly proceed to form them into
a second convention, with full powers, and for the express purpose
of revising and remoulding the work of the first. Were the
experiment to be seriously made, though it required some effort to
view it seriously even in fiction, I leave it to be decided by the
sample of opinions just exhibited, whether, with all their enmity to
their predecessors, they would, in any one point, depart so widely
from their example, as in the discord and ferment that would mark
their own deliberations; and whether the Constitution, now before
the public, would not stand as fair a chance for immortality, as
Lycurgus gave to that of Sparta, by making its change to depend on
his own return from exile and death, if it were to be immediately
adopted, and were to continue in force, not until a BETTER, but
until ANOTHER should be agreed upon by this new assembly of
lawgivers.
It is a matter both of wonder and regret, that those who raise
so many objections against the new Constitution should never call to
mind the defects of that which is to be exchanged for it. It is not
necessary that the former should be perfect; it is sufficient that
the latter is more imperfect. No man would refuse to give brass for
silver or gold, because the latter had some alloy in it. No man
would refuse to quit a shattered and tottering habitation for a firm
and commodious building, because the latter had not a porch to it,
or because some of the rooms might be a little larger or smaller, or
the ceilings a little higher or lower than his fancy would have
planned them. But waiving illustrations of this sort, is it not
manifest that most of the capital objections urged against the new
system lie with tenfold weight against the existing Confederation?
Is an indefinite power to raise money dangerous in the hands of the
federal government? The present Congress can make requisitions to
any amount they please, and the States are constitutionally bound to
furnish them; they can emit bills of credit as long as they will
pay for the paper; they can borrow, both abroad and at home, as
long as a shilling will be lent. Is an indefinite power to raise
troops dangerous? The Confederation gives to Congress that power
also; and they have already begun to make use of it. Is it
improper and unsafe to intermix the different powers of government
in the same body of men? Congress, a single body of men, are the
sole depositary of all the federal powers. Is it particularly
dangerous to give the keys of the treasury, and the command of the
army, into the same hands? The Confederation places them both in
the hands of Congress. Is a bill of rights essential to liberty?
The Confederation has no bill of rights. Is it an objection
against the new Constitution, that it empowers the Senate, with the
concurrence of the Executive, to make treaties which are to be the
laws of the land? The existing Congress, without any such control,
can make treaties which they themselves have declared, and most of
the States have recognized, to be the supreme law of the land. Is
the importation of slaves permitted by the new Constitution for
twenty years? By the old it is permitted forever.
I shall be told, that however dangerous this mixture of powers
may be in theory, it is rendered harmless by the dependence of
Congress on the State for the means of carrying them into practice;
that however large the mass of powers may be, it is in fact a
lifeless mass. Then, say I, in the first place, that the
Confederation is chargeable with the still greater folly of
declaring certain powers in the federal government to be absolutely
necessary, and at the same time rendering them absolutely nugatory;
and, in the next place, that if the Union is to continue, and no
better government be substituted, effective powers must either be
granted to, or assumed by, the existing Congress; in either of
which events, the contrast just stated will hold good. But this is
not all. Out of this lifeless mass has already grown an excrescent
power, which tends to realize all the dangers that can be
apprehended from a defective construction of the supreme government
of the Union. It is now no longer a point of speculation and hope,
that the Western territory is a mine of vast wealth to the United
States; and although it is not of such a nature as to extricate
them from their present distresses, or for some time to come, to
yield any regular supplies for the public expenses, yet must it
hereafter be able, under proper management, both to effect a gradual
discharge of the domestic debt, and to furnish, for a certain
period, liberal tributes to the federal treasury. A very large
proportion of this fund has been already surrendered by individual
States; and it may with reason be expected that the remaining
States will not persist in withholding similar proofs of their
equity and generosity. We may calculate, therefore, that a rich and
fertile country, of an area equal to the inhabited extent of the
United States, will soon become a national stock. Congress have
assumed the administration of this stock. They have begun to render
it productive. Congress have undertaken to do more: they have
proceeded to form new States, to erect temporary governments, to
appoint officers for them, and to prescribe the conditions on which
such States shall be admitted into the Confederacy. All this has
been done; and done without the least color of constitutional
authority. Yet no blame has been whispered; no alarm has been
sounded. A GREAT and INDEPENDENT fund of revenue is passing into
the hands of a SINGLE BODY of men, who can RAISE TROOPS to an
INDEFINITE NUMBER, and appropriate money to their support for an
INDEFINITE PERIOD OF TIME. And yet there are men, who have not only
been silent spectators of this prospect, but who are advocates for
the system which exhibits it; and, at the same time, urge against
the new system the objections which we have heard. Would they not
act with more consistency, in urging the establishment of the
latter, as no less necessary to guard the Union against the future
powers and resources of a body constructed like the existing
Congress, than to save it from the dangers threatened by the present
impotency of that Assembly?
I mean not, by any thing here said, to throw censure on the
measures which have been pursued by Congress. I am sensible they
could not have done otherwise. The public interest, the necessity
of the case, imposed upon them the task of overleaping their
constitutional limits. But is not the fact an alarming proof of the
danger resulting from a government which does not possess regular
powers commensurate to its objects? A dissolution or usurpation is
the dreadful dilemma to which it is continually exposed.
PUBLIUS.
FEDERALIST No. 39
The Conformity of the Plan to Republican Principles
For the Independent Journal.
MADISON
To the People of the State of New York:
THE last paper having concluded the observations which were
meant to introduce a candid survey of the plan of government
reported by the convention, we now proceed to the execution of that
part of our undertaking.
The first question that offers itself is, whether the general
form and aspect of the government be strictly republican. It is
evident that no other form would be reconcilable with the genius of
the people of America; with the fundamental principles of the
Revolution; or with that honorable determination which animates
every votary of freedom, to rest all our political experiments on
the capacity of mankind for self-government. If the plan of the
convention, therefore, be found to depart from the republican
character, its advocates must abandon it as no longer defensible.
What, then, are the distinctive characters of the republican
form? Were an answer to this question to be sought, not by
recurring to principles, but in the application of the term by
political writers, to the constitution of different States, no
satisfactory one would ever be found. Holland, in which no particle
of the supreme authority is derived from the people, has passed
almost universally under the denomination of a republic. The same
title has been bestowed on Venice, where absolute power over the
great body of the people is exercised, in the most absolute manner,
by a small body of hereditary nobles. Poland, which is a mixture of
aristocracy and of monarchy in their worst forms, has been dignified
with the same appellation. The government of England, which has one
republican branch only, combined with an hereditary aristocracy and
monarchy, has, with equal impropriety, been frequently placed on the
list of republics. These examples, which are nearly as dissimilar
to each other as to a genuine republic, show the extreme inaccuracy
with which the term has been used in political disquisitions.
If we resort for a criterion to the different principles on
which different forms of government are established, we may define a
republic to be, or at least may bestow that name on, a government
which derives all its powers directly or indirectly from the great
body of the people, and is administered by persons holding their
offices during pleasure, for a limited period, or during good
behavior. It is ESSENTIAL to such a government that it be derived
from the great body of the society, not from an inconsiderable
proportion, or a favored class of it; otherwise a handful of
tyrannical nobles, exercising their oppressions by a delegation of
their powers, might aspire to the rank of republicans, and claim for
their government the honorable title of republic. It is SUFFICIENT
for such a government that the persons administering it be
appointed, either directly or indirectly, by the people; and that
they hold their appointments by either of the tenures just
specified; otherwise every government in the United States, as well
as every other popular government that has been or can be well
organized or well executed, would be degraded from the republican
character. According to the constitution of every State in the
Union, some or other of the officers of government are appointed
indirectly only by the people. According to most of them, the chief
magistrate himself is so appointed. And according to one, this mode
of appointment is extended to one of the co-ordinate branches of the
legislature. According to all the constitutions, also, the tenure
of the highest offices is extended to a definite period, and in many
instances, both within the legislative and executive departments, to
a period of years. According to the provisions of most of the
constitutions, again, as well as according to the most respectable
and received opinions on the subject, the members of the judiciary
department are to retain their offices by the firm tenure of good
behavior.
On comparing the Constitution planned by the convention with the
standard here fixed, we perceive at once that it is, in the most
rigid sense, conformable to it. The House of Representatives, like
that of one branch at least of all the State legislatures, is
elected immediately by the great body of the people. The Senate,
like the present Congress, and the Senate of Maryland, derives its
appointment indirectly from the people. The President is indirectly
derived from the choice of the people, according to the example in
most of the States. Even the judges, with all other officers of the
Union, will, as in the several States, be the choice, though a
remote choice, of the people themselves, the duration of the
appointments is equally conformable to the republican standard, and
to the model of State constitutions The House of Representatives is
periodically elective, as in all the States; and for the period of
two years, as in the State of South Carolina. The Senate is
elective, for the period of six years; which is but one year more
than the period of the Senate of Maryland, and but two more than
that of the Senates of New York and Virginia. The President is to
continue in office for the period of four years; as in New York and
Delaware, the chief magistrate is elected for three years, and in
South Carolina for two years. In the other States the election is
annual. In several of the States, however, no constitutional
provision is made for the impeachment of the chief magistrate. And
in Delaware and Virginia he is not impeachable till out of office.
The President of the United States is impeachable at any time
during his continuance in office. The tenure by which the judges
are to hold their places, is, as it unquestionably ought to be, that
of good behavior. The tenure of the ministerial offices generally,
will be a subject of legal regulation, conformably to the reason of
the case and the example of the State constitutions.
Could any further proof be required of the republican complexion
of this system, the most decisive one might be found in its absolute
prohibition of titles of nobility, both under the federal and the
State governments; and in its express guaranty of the republican
form to each of the latter.
``But it was not sufficient,'' say the adversaries of the
proposed Constitution, ``for the convention to adhere to the
republican form. They ought, with equal care, to have preserved the
FEDERAL form, which regards the Union as a CONFEDERACY of sovereign
states; instead of which, they have framed a NATIONAL government,
which regards the Union as a CONSOLIDATION of the States.'' And it
is asked by what authority this bold and radical innovation was
undertaken? The handle which has been made of this objection
requires that it should be examined with some precision.
Without inquiring into the accuracy of the distinction on which
the objection is founded, it will be necessary to a just estimate of
its force, first, to ascertain the real character of the government
in question; secondly, to inquire how far the convention were
authorized to propose such a government; and thirdly, how far the
duty they owed to their country could supply any defect of regular
authority.
First. In order to ascertain the real character of the
government, it may be considered in relation to the foundation on
which it is to be established; to the sources from which its
ordinary powers are to be drawn; to the operation of those powers;
to the extent of them; and to the authority by which future
changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that
the Constitution is to be founded on the assent and ratification of
the people of America, given by deputies elected for the special
purpose; but, on the other, that this assent and ratification is to
be given by the people, not as individuals composing one entire
nation, but as composing the distinct and independent States to
which they respectively belong. It is to be the assent and
ratification of the several States, derived from the supreme
authority in each State, the authority of the people themselves.
The act, therefore, establishing the Constitution, will not be a
NATIONAL, but a FEDERAL act.
That it will be a federal and not a national act, as these terms
are understood by the objectors; the act of the people, as forming
so many independent States, not as forming one aggregate nation, is
obvious from this single consideration, that it is to result neither
from the decision of a MAJORITY of the people of the Union, nor from
that of a MAJORITY of the States. It must result from the UNANIMOUS
assent of the several States that are parties to it, differing no
otherwise from their ordinary assent than in its being expressed,
not by the legislative authority, but by that of the people
themselves. Were the people regarded in this transaction as forming
one nation, the will of the majority of the whole people of the
United States would bind the minority, in the same manner as the
majority in each State must bind the minority; and the will of the
majority must be determined either by a comparison of the individual
votes, or by considering the will of the majority of the States as
evidence of the will of a majority of the people of the United
States. Neither of these rules have been adopted. Each State, in
ratifying the Constitution, is considered as a sovereign body,
independent of all others, and only to be bound by its own voluntary
act. In this relation, then, the new Constitution will, if
established, be a FEDERAL, and not a NATIONAL constitution.
The next relation is, to the sources from which the ordinary
powers of government are to be derived. The House of
Representatives will derive its powers from the people of America;
and the people will be represented in the same proportion, and on
the same principle, as they are in the legislature of a particular
State. So far the government is NATIONAL, not FEDERAL. The Senate,
on the other hand, will derive its powers from the States, as
political and coequal societies; and these will be represented on
the principle of equality in the Senate, as they now are in the
existing Congress. So far the government is FEDERAL, not NATIONAL.
The executive power will be derived from a very compound source.
The immediate election of the President is to be made by the States
in their political characters. The votes allotted to them are in a
compound ratio, which considers them partly as distinct and coequal
societies, partly as unequal members of the same society. The
eventual election, again, is to be made by that branch of the
legislature which consists of the national representatives; but in
this particular act they are to be thrown into the form of
individual delegations, from so many distinct and coequal bodies
politic. From this aspect of the government it appears to be of a
mixed character, presenting at least as many FEDERAL as NATIONAL
features.
The difference between a federal and national government, as it
relates to the OPERATION OF THE GOVERNMENT, is supposed to consist
in this, that in the former the powers operate on the political
bodies composing the Confederacy, in their political capacities; in
the latter, on the individual citizens composing the nation, in
their individual capacities. On trying the Constitution by this
criterion, it falls under the NATIONAL, not the FEDERAL character;
though perhaps not so completely as has been understood. In
several cases, and particularly in the trial of controversies to
which States may be parties, they must be viewed and proceeded
against in their collective and political capacities only. So far
the national countenance of the government on this side seems to be
disfigured by a few federal features. But this blemish is perhaps
unavoidable in any plan; and the operation of the government on the
people, in their individual capacities, in its ordinary and most
essential proceedings, may, on the whole, designate it, in this
relation, a NATIONAL government.
But if the government be national with regard to the OPERATION
of its powers, it changes its aspect again when we contemplate it in
relation to the EXTENT of its powers. The idea of a national
government involves in it, not only an authority over the individual
citizens, but an indefinite supremacy over all persons and things,
so far as they are objects of lawful government. Among a people
consolidated into one nation, this supremacy is completely vested in
the national legislature. Among communities united for particular
purposes, it is vested partly in the general and partly in the
municipal legislatures. In the former case, all local authorities
are subordinate to the supreme; and may be controlled, directed, or
abolished by it at pleasure. In the latter, the local or municipal
authorities form distinct and independent portions of the supremacy,
no more subject, within their respective spheres, to the general
authority, than the general authority is subject to them, within its
own sphere. In this relation, then, the proposed government cannot
be deemed a NATIONAL one; since its jurisdiction extends to certain
enumerated objects only, and leaves to the several States a
residuary and inviolable sovereignty over all other objects. It is
true that in controversies relating to the boundary between the two
jurisdictions, the tribunal which is ultimately to decide, is to be
established under the general government. But this does not change
the principle of the case. The decision is to be impartially made,
according to the rules of the Constitution; and all the usual and
most effectual precautions are taken to secure this impartiality.
Some such tribunal is clearly essential to prevent an appeal to the
sword and a dissolution of the compact; and that it ought to be
established under the general rather than under the local
governments, or, to speak more properly, that it could be safely
established under the first alone, is a position not likely to be
combated.
If we try the Constitution by its last relation to the authority
by which amendments are to be made, we find it neither wholly
NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme
and ultimate authority would reside in the MAJORITY of the people of
the Union; and this authority would be competent at all times, like
that of a majority of every national society, to alter or abolish
its established government. Were it wholly federal, on the other
hand, the concurrence of each State in the Union would be essential
to every alteration that would be binding on all. The mode provided
by the plan of the convention is not founded on either of these
principles. In requiring more than a majority, and principles. In
requiring more than a majority, and particularly in computing the
proportion by STATES, not by CITIZENS, it departs from the NATIONAL
and advances towards the FEDERAL character; in rendering the
concurrence of less than the whole number of States sufficient, it
loses again the FEDERAL and partakes of the NATIONAL character.
The proposed Constitution, therefore, is, in strictness, neither
a national nor a federal Constitution, but a composition of both.
In its foundation it is federal, not national; in the sources from
which the ordinary powers of the government are drawn, it is partly
federal and partly national; in the operation of these powers, it
is national, not federal; in the extent of them, again, it is
federal, not national; and, finally, in the authoritative mode of
introducing amendments, it is neither wholly federal nor wholly
national.
PUBLIUS.
FEDERALIST No. 40
The Powers of the Convention to Form a Mixed Government Examined
and Sustained
From the New York Packet.
Friday, January 18, 1788.
MADISON
To the People of the State of New York:
THE SECOND point to be examined is, whether the convention were
authorized to frame and propose this mixed Constitution. The
powers of the convention ought, in strictness, to be determined
by an inspection of the commissions given to the members by their
respective constituents. As all of these, however, had reference,
either to the recommendation from the meeting at Annapolis, in
September, 1786, or to that from Congress, in February, 1787, it
will be sufficient to recur to these particular acts. The act
from Annapolis recommends the ``appointment of commissioners to
take into consideration the situation of the United States; to
devise SUCH FURTHER PROVISIONS as shall appear to them necessary
to render the Constitution of the federal government ADEQUATE TO
THE EXIGENCIES OF THE UNION; and to report such an act for that
purpose, to the United States in Congress assembled, as when
agreed to by them, and afterwards confirmed by the legislature of
every State, will effectually provide for the same. ''The
recommendatory act of Congress is in the words
following:``WHEREAS, There is provision in the articles of
Confederation and perpetual Union, for making alterations
therein, by the assent of a Congress of the United States, and of
the legislatures of the several States; and whereas experience
hath evinced, that there are defects in the present
Confederation; as a mean to remedy which, several of the States,
and PARTICULARLY THE STATE OF NEW YORK, by express instructions
to their delegates in Congress, have suggested a convention for
the purposes expressed in the following resolution; and such
convention appearing to be the most probable mean of establishing
in these States A FIRM NATIONAL GOVERNMENT:``Resolved, That in
the opinion of Congress it is expedient, that on the second
Monday of May next a convention of delegates, who shall have been
appointed by the several States, be held at Philadelphia, for the
sole and express purpose OF REVISING THE ARTICLES OF
CONFEDERATION, and reporting to Congress and the several
legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall,
when agreed to in Congress, and confirmed by the States, render
the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT
AND THE PRESERVATION OF THE UNION. ''From these two acts, it
appears, 1st, that the object of the convention was to establish,
in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this
government was to be such as would be ADEQUATE TO THE EXIGENCIES
OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these
purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE
ARTICLES OF CONFEDERATION, as it is expressed in the act of
Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR
NECESSARY, as it stands in the recommendatory act from Annapolis;
4th, that the alterations and provisions were to be reported to
Congress, and to the States, in order to be agreed to by the
former and confirmed by the latter. From a comparison and fair
construction of these several modes of expression, is to be
deduced the authority under which the convention acted. They were
to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF
GOVERNMENT, and OF THE UNION; and to reduce the articles of
Confederation into such form as to accomplish these purposes.
There are two rules of construction, dictated by plain reason, as
well as founded on legal axioms. The one is, that every part of
the expression ought, if possible, to be allowed some meaning,
and be made to conspire to some common end. The other is, that
where the several parts cannot be made to coincide, the less
important should give way to the more important part; the means
should be sacrificed to the end, rather than the end to the
means. Suppose, then, that the expressions defining the
authority of the convention were irreconcilably at variance with
each other; that a NATIONAL and ADEQUATE GOVERNMENT could not
possibly, in the judgment of the convention, be affected by
ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION;
which part of the definition ought to have been embraced, and
which rejected? Which was the more important, which the less
important part? Which the end; which the means? Let the most
scrupulous expositors of delegated powers; let the most
inveterate objectors against those exercised by the convention,
answer these questions. Let them declare, whether it was of most
importance to the happiness of the people of America, that the
articles of Confederation should be disregarded, and an adequate
government be provided, and the Union preserved; or that an
adequate government should be omitted, and the articles of
Confederation preserved. Let them declare, whether the
preservation of these articles was the end, for securing which a
reform of the government was to be introduced as the means; or
whether the establishment of a government, adequate to the
national happiness, was the end at which these articles
themselves originally aimed, and to which they ought, as
insufficient means, to have been sacrificed. But is it necessary
to suppose that these expressions are absolutely irreconcilable
to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES
OF THE CONFEDERATION could possibly mould them into a national
and adequate government; into such a government as has been
proposed by the convention? No stress, it is presumed, will, in
this case, be laid on the TITLE; a change of that could never be
deemed an exercise of ungranted power. ALTERATIONS in the body of
the instrument are expressly authorized. NEW PROVISIONS therein
are also expressly authorized. Here then is a power to change the
title; to insert new articles; to alter old ones. Must it of
necessity be admitted that this power is infringed, so long as a
part of the old articles remain? Those who maintain the
affirmative ought at least to mark the boundary between
authorized and usurped innovations; between that degree of change
which lies within the compass of ALTERATIONS AND FURTHER
PROVISIONS, and that which amounts to a TRANSMUTATION of the
government. Will it be said that the alterations ought not to
have touched the substance of the Confederation? The States
would never have appointed a convention with so much solemnity,
nor described its objects with so much latitude, if some
SUBSTANTIAL reform had not been in contemplation. Will it be said
that the FUNDAMENTAL PRINCIPLES of the Confederation were not
within the purview of the convention, and ought not to have been
varied? I ask, What are these principles? Do they require that,
in the establishment of the Constitution, the States should be
regarded as distinct and independent sovereigns? They are so
regarded by the Constitution proposed. Do they require that the
members of the government should derive their appointment from
the legislatures, not from the people of the States? One branch
of the new government is to be appointed by these legislatures;
and under the Confederation, the delegates to Congress MAY ALL
be appointed immediately by the people, and in two States1 are
actually so appointed. Do they require that the powers of the
government should act on the States, and not immediately on
individuals? In some instances, as has been shown, the powers of
the new government will act on the States in their collective
characters. In some instances, also, those of the existing
government act immediately on individuals. In cases of capture;
of piracy; of the post office; of coins, weights, and measures;
of trade with the Indians; of claims under grants of land by
different States; and, above all, in the case of trials by
courts-marshal in the army and navy, by which death may be
inflicted without the intervention of a jury, or even of a civil
magistrate; in all these cases the powers of the Confederation
operate immediately on the persons and interests of individual
citizens. Do these fundamental principles require, particularly,
that no tax should be levied without the intermediate agency of
the States? The Confederation itself authorizes a direct tax, to
a certain extent, on the post office. The power of coinage has
been so construed by Congress as to levy a tribute immediately
from that source also. But pretermitting these instances, was it
not an acknowledged object of the convention and the universal
expectation of the people, that the regulation of trade should be
submitted to the general government in such a form as would
render it an immediate source of general revenue? Had not
Congress repeatedly recommended this measure as not inconsistent
with the fundamental principles of the Confederation? Had not
every State but one; had not New York herself, so far complied
with the plan of Congress as to recognize the PRINCIPLE of the
innovation? Do these principles, in fine, require that the
powers of the general government should be limited, and that,
beyond this limit, the States should be left in possession of
their sovereignty and independence? We have seen that in the new
government, as in the old, the general powers are limited; and
that the States, in all unenumerated cases, are left in the
enjoyment of their sovereign and independent jurisdiction. The
truth is, that the great principles of the Constitution proposed
by the convention may be considered less as absolutely new, than
as the expansion of principles which are found in the articles of
Confederation. The misfortune under the latter system has been,
that these principles are so feeble and confined as to justify
all the charges of inefficiency which have been urged against it,
and to require a degree of enlargement which gives to the new
system the aspect of an entire transformation of the old. In one
particular it is admitted that the convention have departed from
the tenor of their commission. Instead of reporting a plan
requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES,
they have reported a plan which is to be confirmed by the PEOPLE,
and may be carried into effect by NINE STATES ONLY. It is worthy
of remark that this objection, though the most plausible, has
been the least urged in the publications which have swarmed
against the convention. The forbearance can only have proceeded
from an irresistible conviction of the absurdity of subjecting
the fate of twelve States to the perverseness or corruption of a
thirteenth; from the example of inflexible opposition given by a
MAJORITY of one sixtieth of the people of America to a measure
approved and called for by the voice of twelve States, comprising
fifty-nine sixtieths of the people an example still fresh in the
memory and indignation of every citizen who has felt for the
wounded honor and prosperity of his country. As this objection,
therefore, has been in a manner waived by those who have
criticised the powers of the convention, I dismiss it without
further observation. The THIRD point to be inquired into is, how
far considerations of duty arising out of the case itself could
have supplied any defect of regular authority. In the preceding
inquiries the powers of the convention have been analyzed and
tried with the same rigor, and by the same rules, as if they had
been real and final powers for the establishment of a
Constitution for the United States. We have seen in what manner
they have borne the trial even on that supposition. It is time
now to recollect that the powers were merely advisory and
recommendatory; that they were so meant by the States, and so
understood by the convention; and that the latter have
accordingly planned and proposed a Constitution which is to be of
no more consequence than the paper on which it is written, unless
it be stamped with the approbation of those to whom it is
addressed. This reflection places the subject in a point of view
altogether different, and will enable us to judge with propriety
of the course taken by the convention. Let us view the ground on
which the convention stood. It may be collected from their
proceedings, that they were deeply and unanimously impressed with
the crisis, which had led their country almost with one voice to
make so singular and solemn an experiment for correcting the
errors of a system by which this crisis had been produced; that
they were no less deeply and unanimously convinced that such a
reform as they have proposed was absolutely necessary to effect
the purposes of their appointment. It could not be unknown to
them that the hopes and expectations of the great body of
citizens, throughout this great empire, were turned with the
keenest anxiety to the event of their deliberations. They had
every reason to believe that the contrary sentiments agitated the
minds and bosoms of every external and internal foe to the
liberty and prosperity of the United States. They had seen in the
origin and progress of the experiment, the alacrity with which
the PROPOSITION, made by a single State (Virginia), towards a
partial amendment of the Confederation, had been attended to and
promoted. They had seen the LIBERTY ASSUMED by a VERY FEW
deputies from a VERY FEW States, convened at Annapolis, of
recommending a great and critical object, wholly foreign to their
commission, not only justified by the public opinion, but
actually carried into effect by twelve out of the thirteen
States. They had seen, in a variety of instances, assumptions by
Congress, not only of recommendatory, but of operative, powers,
warranted, in the public estimation, by occasions and objects
infinitely less urgent than those by which their conduct was to
be governed. They must have reflected, that in all great changes
of established governments, forms ought to give way to substance;
that a rigid adherence in such cases to the former, would render
nominal and nugatory the transcendent and precious right of the
people to ``abolish or alter their governments as to them shall
seem most likely to effect their safety and happiness,''2 since
it is impossible for the people spontaneously and universally to
move in concert towards their object; and it is therefore
essential that such changes be instituted by some INFORMAL AND
UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable
citizen or number of citizens. They must have recollected that it
was by this irregular and assumed privilege of proposing to the
people plans for their safety and happiness, that the States
were first united against the danger with which they were
threatened by their ancient government; that committees and
congresses were formed for concentrating their efforts and
defending their rights; and that CONVENTIONS were ELECTED in THE
SEVERAL STATES for establishing the constitutions under which
they are now governed; nor could it have been forgotten that no
little ill-timed scruples, no zeal for adhering to ordinary
forms, were anywhere seen, except in those who wished to indulge,
under these masks, their secret enmity to the substance contended
for. They must have borne in mind, that as the plan to be framed
and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
disapprobation of this supreme authority would destroy it
forever; its approbation blot out antecedent errors and
irregularities. It might even have occurred to them, that where a
disposition to cavil prevailed, their neglect to execute the
degree of power vested in them, and still more their
recommendation of any measure whatever, not warranted by their
commission, would not less excite animadversion, than a
recommendation at once of a measure fully commensurate to the
national exigencies. Had the convention, under all these
impressions, and in the midst of all these considerations,
instead of exercising a manly confidence in their country, by
whose confidence they had been so peculiarly distinguished, and
of pointing out a system capable, in their judgment, of securing
its happiness, taken the cold and sullen resolution of
disappointing its ardent hopes, of sacrificing substance to
forms, of committing the dearest interests of their country to
the uncertainties of delay and the hazard of events, let me ask
the man who can raise his mind to one elevated conception, who
can awaken in his bosom one patriotic emotion, what judgment
ought to have been pronounced by the impartial world, by the
friends of mankind, by every virtuous citizen, on the conduct and
character of this assembly? Or if there be a man whose
propensity to condemn is susceptible of no control, let me then
ask what sentence he has in reserve for the twelve States who
USURPED THE POWER of sending deputies to the convention, a body
utterly unknown to their constitutions; for Congress, who
recommended the appointment of this body, equally unknown to the
Confederation; and for the State of New York, in particular,
which first urged and then complied with this unauthorized
interposition? But that the objectors may be disarmed of every
pretext, it shall be granted for a moment that the convention
were neither authorized by their commission, nor justified by
circumstances in proposing a Constitution for their country: does
it follow that the Constitution ought, for that reason alone, to
be rejected? If, according to the noble precept, it be lawful to
accept good advice even from an enemy, shall we set the ignoble
example of refusing such advice even when it is offered by our
friends? The prudent inquiry, in all cases, ought surely to be,
not so much FROM WHOM the advice comes, as whether the advice be
GOOD. The sum of what has been here advanced and proved is, that
the charge against the convention of exceeding their powers,
except in one instance little urged by the objectors, has no
foundation to support it; that if they had exceeded their powers,
they were not only warranted, but required, as the confidential
servants of their country, by the circumstances in which they
were placed, to exercise the liberty which they assume; and that
finally, if they had violated both their powers and their
obligations, in proposing a Constitution, this ought nevertheless
to be embraced, if it be calculated to accomplish the views and
happiness of the people of America. How far this character is due
to the Constitution, is the subject under investigation. PUBLIUS.
Connecticut and Rhode Island. Declaration of Independence.
FEDERALIST No. 41
General View of the Powers Conferred by The Constitution
For the Independent Journal.
MADISON
To the People of the State of New York:
THE Constitution proposed by the convention may be considered
under two general points of view. The FIRST relates to the sum or
quantity of power which it vests in the government, including
the restraints imposed on the States. The SECOND, to the
particular structure of the government, and the distribution of
this power among its several branches. Under the FIRST view of
the subject, two important questions arise: 1. Whether any part
of the powers transferred to the general government be
unnecessary or improper? 2. Whether the entire mass of them be
dangerous to the portion of jurisdiction left in the several
States? Is the aggregate power of the general government greater
than ought to have been vested in it? This is the FIRST
question. It cannot have escaped those who have attended with
candor to the arguments employed against the extensive powers of
the government, that the authors of them have very little
considered how far these powers were necessary means of attaining
a necessary end. They have chosen rather to dwell on the
inconveniences which must be unavoidably blended with all
political advantages; and on the possible abuses which must be
incident to every power or trust, of which a beneficial use can
be made. This method of handling the subject cannot impose on the
good sense of the people of America. It may display the subtlety
of the writer; it may open a boundless field for rhetoric and
declamation; it may inflame the passions of the unthinking, and
may confirm the prejudices of the misthinking: but cool and
candid people will at once reflect, that the purest of human
blessings must have a portion of alloy in them; that the choice
must always be made, if not of the lesser evil, at least of the
GREATER, not the PERFECT, good; and that in every political
institution, a power to advance the public happiness involves a
discretion which may be misapplied and abused. They will see,
therefore, that in all cases where power is to be conferred, the
point first to be decided is, whether such a power be necessary
to the public good; as the next will be, in case of an
affirmative decision, to guard as effectually as possible
against a perversion of the power to the public detriment. That
we may form a correct judgment on this subject, it will be proper
to review the several powers conferred on the government of the
Union; and that this may be the more conveniently done they may
be reduced into different classes as they relate to the following
different objects: 1. Security against foreign danger; 2.
Regulation of the intercourse with foreign nations; 3.
Maintenance of harmony and proper intercourse among the States;
4. Certain miscellaneous objects of general utility; 5.
Restraint of the States from certain injurious acts; 6.
Provisions for giving due efficacy to all these powers. The
powers falling within the FIRST class are those of declaring war
and granting letters of marque; of providing armies and fleets;
of regulating and calling forth the militia; of levying and
borrowing money. Security against foreign danger is one of the
primitive objects of civil society. It is an avowed and essential
object of the American Union. The powers requisite for attaining
it must be effectually confided to the federal councils. Is the
power of declaring war necessary? No man will answer this
question in the negative. It would be superfluous, therefore, to
enter into a proof of the affirmative. The existing Confederation
establishes this power in the most ample form. Is the power of
raising armies and equipping fleets necessary? This is involved
in the foregoing power. It is involved in the power of
self-defense. But was it necessary to give an INDEFINITE POWER
of raising TROOPS, as well as providing fleets; and of
maintaining both in PEACE, as well as in war? The answer to these
questions has been too far anticipated in another place to admit
an extensive discussion of them in this place. The answer indeed
seems to be so obvious and conclusive as scarcely to justify such
a discussion in any place. With what color of propriety could the
force necessary for defense be limited by those who cannot limit
the force of offense? If a federal Constitution could chain the
ambition or set bounds to the exertions of all other nations,
then indeed might it prudently chain the discretion of its own
government, and set bounds to the exertions for its own safety.
How could a readiness for war in time of peace be safely
prohibited, unless we could prohibit, in like manner, the
preparations and establishments of every hostile nation? The
means of security can only be regulated by the means and the
danger of attack. They will, in fact, be ever determined by these
rules, and by no others. It is in vain to oppose constitutional
barriers to the impulse of self-preservation. It is worse than in
vain; because it plants in the Constitution itself necessary
usurpations of power, every precedent of which is a germ of
unnecessary and multiplied repetitions. If one nation maintains
constantly a disciplined army, ready for the service of ambition
or revenge, it obliges the most pacific nations who may be within
the reach of its enterprises to take corresponding precautions.
The fifteenth century was the unhappy epoch of military
establishments in the time of peace. They were introduced by
Charles VII. of France. All Europe has followed, or been forced
into, the example. Had the example not been followed by other
nations, all Europe must long ago have worn the chains of a
universal monarch. Were every nation except France now to disband
its peace establishments, the same event might follow. The
veteran legions of Rome were an overmatch for the undisciplined
valor of all other nations and rendered her the mistress of the
world. Not the less true is it, that the liberties of Rome
proved the final victim to her military triumphs; and that the
liberties of Europe, as far as they ever existed, have, with few
exceptions, been the price of her military establishments. A
standing force, therefore, is a dangerous, at the same time that
it may be a necessary, provision. On the smallest scale it has
its inconveniences. On an extensive scale its consequences may be
fatal. On any scale it is an object of laudable circumspection
and precaution. A wise nation will combine all these
considerations; and, whilst it does not rashly preclude itself
from any resource which may become essential to its safety, will
exert all its prudence in diminishing both the necessity and the
danger of resorting to one which may be inauspicious to its
liberties. The clearest marks of this prudence are stamped on
the proposed Constitution. The Union itself, which it cements and
secures, destroys every pretext for a military establishment
which could be dangerous. America united, with a handful of
troops, or without a single soldier, exhibits a more forbidding
posture to foreign ambition than America disunited, with a
hundred thousand veterans ready for combat. It was remarked, on a
former occasion, that the want of this pretext had saved the
liberties of one nation in Europe. Being rendered by her insular
situation and her maritime resources impregnable to the armies of
her neighbors, the rulers of Great Britain have never been able,
by real or artificial dangers, to cheat the public into an
extensive peace establishment. The distance of the United States
from the powerful nations of the world gives them the same happy
security. A dangerous establishment can never be necessary or
plausible, so long as they continue a united people. But let it
never, for a moment, be forgotten that they are indebted for this
advantage to the Union alone. The moment of its dissolution will
be the date of a new order of things. The fears of the weaker, or
the ambition of the stronger States, or Confederacies, will set
the same example in the New, as Charles VII. did in the Old
World. The example will be followed here from the same motives
which produced universal imitation there. Instead of deriving
from our situation the precious advantage which Great Britain has
derived from hers, the face of America will be but a copy of that
of the continent of Europe. It will present liberty everywhere
crushed between standing armies and perpetual taxes. The fortunes
of disunited America will be even more disastrous than those of
Europe. The sources of evil in the latter are confined to her own
limits. No superior powers of another quarter of the globe
intrigue among her rival nations, inflame their mutual
animosities, and render them the instruments of foreign ambition,
jealousy, and revenge. In America the miseries springing from her
internal jealousies, contentions, and wars, would form a part
only of her lot. A plentiful addition of evils would have their
source in that relation in which Europe stands to this quarter of
the earth, and which no other quarter of the earth bears to
Europe. This picture of the consequences of disunion cannot be
too highly colored, or too often exhibited. Every man who loves
peace, every man who loves his country, every man who loves
liberty, ought to have it ever before his eyes, that he may
cherish in his heart a due attachment to the Union of America,
and be able to set a due value on the means of preserving it.
Next to the effectual establishment of the Union, the best
possible precaution against danger from standing armies is a
limitation of the term for which revenue may be appropriated to
their support. This precaution the Constitution has prudently
added. I will not repeat here the observations which I flatter
myself have placed this subject in a just and satisfactory
light. But it may not be improper to take notice of an argument
against this part of the Constitution, which has been drawn from
the policy and practice of Great Britain. It is said that the
continuance of an army in that kingdom requires an annual vote of
the legislature; whereas the American Constitution has lengthened
this critical period to two years. This is the form in which the
comparison is usually stated to the public: but is it a just
form? Is it a fair comparison? Does the British Constitution
restrain the parliamentary discretion to one year? Does the
American impose on the Congress appropriations for two years? On
the contrary, it cannot be unknown to the authors of the fallacy
themselves, that the British Constitution fixes no limit whatever
to the discretion of the legislature, and that the American ties
down the legislature to two years, as the longest admissible
term. Had the argument from the British example been truly
stated, it would have stood thus: The term for which supplies
may be appropriated to the army establishment, though unlimited
by the British Constitution, has nevertheless, in practice, been
limited by parliamentary discretion to a single year. Now, if in
Great Britain, where the House of Commons is elected for seven
years; where so great a proportion of the members are elected by
so small a proportion of the people; where the electors are so
corrupted by the representatives, and the representatives so
corrupted by the Crown, the representative body can possess a
power to make appropriations to the army for an indefinite term,
without desiring, or without daring, to extend the term beyond a
single year, ought not suspicion herself to blush, in pretending
that the representatives of the United States, elected FREELY by
the WHOLE BODY of the people, every SECOND YEAR, cannot be safely
intrusted with the discretion over such appropriations, expressly
limited to the short period of TWO YEARS? A bad cause seldom
fails to betray itself. Of this truth, the management of the
opposition to the federal government is an unvaried
exemplification. But among all the blunders which have been
committed, none is more striking than the attempt to enlist on
that side the prudent jealousy entertained by the people, of
standing armies. The attempt has awakened fully the public
attention to that important subject; and has led to
investigations which must terminate in a thorough and universal
conviction, not only that the constitution has provided the most
effectual guards against danger from that quarter, but that
nothing short of a Constitution fully adequate to the national
defense and the preservation of the Union, can save America from
as many standing armies as it may be split into States or
Confederacies, and from such a progressive augmentation, of these
establishments in each, as will render them as burdensome to the
properties and ominous to the liberties of the people, as any
establishment that can become necessary, under a united and
efficient government, must be tolerable to the former and safe to
the latter. The palpable necessity of the power to provide and
maintain a navy has protected that part of the Constitution
against a spirit of censure, which has spared few other parts. It
must, indeed, be numbered among the greatest blessings of
America, that as her Union will be the only source of her
maritime strength, so this will be a principal source of her
security against danger from abroad. In this respect our
situation bears another likeness to the insular advantage of
Great Britain. The batteries most capable of repelling foreign
enterprises on our safety, are happily such as can never be
turned by a perfidious government against our liberties. The
inhabitants of the Atlantic frontier are all of them deeply
interested in this provision for naval protection, and if they
have hitherto been suffered to sleep quietly in their beds; if
their property has remained safe against the predatory spirit of
licentious adventurers; if their maritime towns have not yet
been compelled to ransom themselves from the terrors of a
conflagration, by yielding to the exactions of daring and sudden
invaders, these instances of good fortune are not to be ascribed
to the capacity of the existing government for the protection of
those from whom it claims allegiance, but to causes that are
fugitive and fallacious. If we except perhaps Virginia and
Maryland, which are peculiarly vulnerable on their eastern
frontiers, no part of the Union ought to feel more anxiety on
this subject than New York. Her seacoast is extensive. A very
important district of the State is an island. The State itself is
penetrated by a large navigable river for more than fifty
leagues. The great emporium of its commerce, the great reservoir
of its wealth, lies every moment at the mercy of events, and may
almost be regarded as a hostage for ignominious compliances with
the dictates of a foreign enemy, or even with the rapacious
demands of pirates and barbarians. Should a war be the result of
the precarious situation of European affairs, and all the unruly
passions attending it be let loose on the ocean, our escape from
insults and depredations, not only on that element, but every
part of the other bordering on it, will be truly miraculous. In
the present condition of America, the States more immediately
exposed to these calamities have nothing to hope from the phantom
of a general government which now exists; and if their single
resources were equal to the task of fortifying themselves against
the danger, the object to be protected would be almost consumed
by the means of protecting them. The power of regulating and
calling forth the militia has been already sufficiently
vindicated and explained. The power of levying and borrowing
money, being the sinew of that which is to be exerted in the
national defense, is properly thrown into the same class with
it. This power, also, has been examined already with much
attention, and has, I trust, been clearly shown to be necessary,
both in the extent and form given to it by the Constitution. I
will address one additional reflection only to those who contend
that the power ought to have been restrained to external
taxation by which they mean, taxes on articles imported from
other countries. It cannot be doubted that this will always be a
valuable source of revenue; that for a considerable time it must
be a principal source; that at this moment it is an essential
one. But we may form very mistaken ideas on this subject, if we
do not call to mind in our calculations, that the extent of
revenue drawn from foreign commerce must vary with the
variations, both in the extent and the kind of imports; and that
these variations do not correspond with the progress of
population, which must be the general measure of the public
wants. As long as agriculture continues the sole field of labor,
the importation of manufactures must increase as the consumers
multiply. As soon as domestic manufactures are begun by the hands
not called for by agriculture, the imported manufactures will
decrease as the numbers of people increase. In a more remote
stage, the imports may consist in a considerable part of raw
materials, which will be wrought into articles for exportation,
and will, therefore, require rather the encouragement of
bounties, than to be loaded with discouraging duties. A system of
government, meant for duration, ought to contemplate these
revolutions, and be able to accommodate itself to them. Some,
who have not denied the necessity of the power of taxation, have
grounded a very fierce attack against the Constitution, on the
language in which it is defined. It has been urged and echoed,
that the power ``to lay and collect taxes, duties, imposts, and
excises, to pay the debts, and provide for the common defense and
general welfare of the United States,'' amounts to an unlimited
commission to exercise every power which may be alleged to be
necessary for the common defense or general welfare. No stronger
proof could be given of the distress under which these writers
labor for objections, than their stooping to such a
misconstruction. Had no other enumeration or definition of the
powers of the Congress been found in the Constitution, than the
general expressions just cited, the authors of the objection
might have had some color for it; though it would have been
difficult to find a reason for so awkward a form of describing an
authority to legislate in all possible cases. A power to destroy
the freedom of the press, the trial by jury, or even to regulate
the course of descents, or the forms of conveyances, must be very
singularly expressed by the terms ``to raise money for the
general welfare. ''But what color can the objection have, when a
specification of the objects alluded to by these general terms
immediately follows, and is not even separated by a longer pause
than a semicolon? If the different parts of the same instrument
ought to be so expounded, as to give meaning to every part which
will bear it, shall one part of the same sentence be excluded
altogether from a share in the meaning; and shall the more
doubtful and indefinite terms be retained in their full extent,
and the clear and precise expressions be denied any signification
whatsoever? For what purpose could the enumeration of particular
powers be inserted, if these and all others were meant to be
included in the preceding general power? Nothing is more natural
nor common than first to use a general phrase, and then to
explain and qualify it by a recital of particulars. But the idea
of an enumeration of particulars which neither explain nor
qualify the general meaning, and can have no other effect than to
confound and mislead, is an absurdity, which, as we are reduced
to the dilemma of charging either on the authors of the objection
or on the authors of the Constitution, we must take the liberty
of supposing, had not its origin with the latter. The objection
here is the more extraordinary, as it appears that the language
used by the convention is a copy from the articles of
Confederation. The objects of the Union among the States, as
described in article third, are ``their common defense, security
of their liberties, and mutual and general welfare. '' The terms
of article eighth are still more identical: ``All charges of war
and all other expenses that shall be incurred for the common
defense or general welfare, and allowed by the United States in
Congress, shall be defrayed out of a common treasury,'' etc. A
similar language again occurs in article ninth. Construe either
of these articles by the rules which would justify the
construction put on the new Constitution, and they vest in the
existing Congress a power to legislate in all cases whatsoever.
But what would have been thought of that assembly, if, attaching
themselves to these general expressions, and disregarding the
specifications which ascertain and limit their import, they had
exercised an unlimited power of providing for the common defense
and general welfare? I appeal to the objectors themselves,
whether they would in that case have employed the same reasoning
in justification of Congress as they now make use of against the
convention. How difficult it is for error to escape its own
condemnation! PUBLIUS.
FEDERALIST No. 42
The Powers Conferred by the Constitution Further Considered
From the New York Packet. Tuesday, January 22, 1788.
MADISON
To the People of the State of New York:
THE SECOND class of powers, lodged in the general government,
consists of those which regulate the intercourse with foreign
nations, to wit: to make treaties; to send and receive
ambassadors, other public ministers, and consuls; to define and
punish piracies and felonies committed on the high seas, and
offenses against the law of nations; to regulate foreign
commerce, including a power to prohibit, after the year 1808, the
importation of slaves, and to lay an intermediate duty of ten
dollars per head, as a discouragement to such importations. This
class of powers forms an obvious and essential branch of the
federal administration. If we are to be one nation in any
respect, it clearly ought to be in respect to other nations. The
powers to make treaties and to send and receive ambassadors,
speak their own propriety. Both of them are comprised in the
articles of Confederation, with this difference only, that the
former is disembarrassed, by the plan of the convention, of an
exception, under which treaties might be substantially frustrated
by regulations of the States; and that a power of appointing and
receiving ``other public ministers and consuls,'' is expressly
and very properly added to the former provision concerning
ambassadors. The term ambassador, if taken strictly, as seems to
be required by the second of the articles of Confederation,
comprehends the highest grade only of public ministers, and
excludes the grades which the United States will be most likely
to prefer, where foreign embassies may be necessary. And under no
latitude of construction will the term comprehend consuls. Yet it
has been found expedient, and has been the practice of Congress,
to employ the inferior grades of public ministers, and to send
and receive consuls. It is true, that where treaties of commerce
stipulate for the mutual appointment of consuls, whose functions
are connected with commerce, the admission of foreign consuls may
fall within the power of making commercial treaties; and that
where no such treaties exist, the mission of American consuls
into foreign countries may PERHAPS be covered under the
authority, given by the ninth article of the Confederation, to
appoint all such civil officers as may be necessary for managing
the general affairs of the United States. But the admission of
consuls into the United States, where no previous treaty has
stipulated it, seems to have been nowhere provided for. A supply
of the omission is one of the lesser instances in which the
convention have improved on the model before them. But the most
minute provisions become important when they tend to obviate the
necessity or the pretext for gradual and unobserved usurpations
of power. A list of the cases in which Congress have been
betrayed, or forced by the defects of the Confederation, into
violations of their chartered authorities, would not a little
surprise those who have paid no attention to the subject; and
would be no inconsiderable argument in favor of the new
Constitution, which seems to have provided no less studiously for
the lesser, than the more obvious and striking defects of the
old. The power to define and punish piracies and felonies
committed on the high seas, and offenses against the law of
nations, belongs with equal propriety to the general government,
and is a still greater improvement on the articles of
Confederation. These articles contain no provision for the case
of offenses against the law of nations; and consequently leave
it in the power of any indiscreet member to embroil the
Confederacy with foreign nations. The provision of the federal
articles on the subject of piracies and felonies extends no
further than to the establishment of courts for the trial of
these offenses. The definition of piracies might, perhaps,
without inconveniency, be left to the law of nations; though a
legislative definition of them is found in most municipal codes.
A definition of felonies on the high seas is evidently
requisite. Felony is a term of loose signification, even in the
common law of England; and of various import in the statute law
of that kingdom. But neither the common nor the statute law of
that, or of any other nation, ought to be a standard for the
proceedings of this, unless previously made its own by
legislative adoption. The meaning of the term, as defined in the
codes of the several States, would be as impracticable as the
former would be a dishonorable and illegitimate guide. It is not
precisely the same in any two of the States; and varies in each
with every revision of its criminal laws. For the sake of
certainty and uniformity, therefore, the power of defining
felonies in this case was in every respect necessary and proper.
The regulation of foreign commerce, having fallen within several
views which have been taken of this subject, has been too fully
discussed to need additional proofs here of its being properly
submitted to the federal administration. It were doubtless to be
wished, that the power of prohibiting the importation of slaves
had not been postponed until the year 1808, or rather that it had
been suffered to have immediate operation. But it is not
difficult to account, either for this restriction on the general
government, or for the manner in which the whole clause is
expressed. It ought to be considered as a great point gained in
favor of humanity, that a period of twenty years may terminate
forever, within these States, a traffic which has so long and so
loudly upbraided the barbarism of modern policy; that within that
period, it will receive a considerable discouragement from the
federal government, and may be totally abolished, by a
concurrence of the few States which continue the unnatural
traffic, in the prohibitory example which has been given by so
great a majority of the Union. Happy would it be for the
unfortunate Africans, if an equal prospect lay before them of
being redeemed from the oppressions of their European brethren!
Attempts have been made to pervert this clause into an objection
against the Constitution, by representing it on one side as a
criminal toleration of an illicit practice, and on another as
calculated to prevent voluntary and beneficial emigrations from
Europe to America. I mention these misconstructions, not with a
view to give them an answer, for they deserve none, but as
specimens of the manner and spirit in which some have thought fit
to conduct their opposition to the proposed government. The
powers included in the THIRD class are those which provide for
the harmony and proper intercourse among the States. Under this
head might be included the particular restraints imposed on the
authority of the States, and certain powers of the judicial
department; but the former are reserved for a distinct class, and
the latter will be particularly examined when we arrive at the
structure and organization of the government. I shall confine
myself to a cursory review of the remaining powers comprehended
under this third description, to wit: to regulate commerce among
the several States and the Indian tribes; to coin money, regulate
the value thereof, and of foreign coin; to provide for the
punishment of counterfeiting the current coin and secureties of
the United States; to fix the standard of weights and measures;
to establish a uniform rule of naturalization, and uniform laws
of bankruptcy, to prescribe the manner in which the public acts,
records, and judicial proceedings of each State shall be proved,
and the effect they shall have in other States; and to establish
post offices and post roads. The defect of power in the existing
Confederacy to regulate the commerce between its several members,
is in the number of those which have been clearly pointed out by
experience. To the proofs and remarks which former papers have
brought into view on this subject, it may be added that without
this supplemental provision, the great and essential power of
regulating foreign commerce would have been incomplete and
ineffectual. A very material object of this power was the relief
of the States which import and export through other States, from
the improper contributions levied on them by the latter. Were
these at liberty to regulate the trade between State and State,
it must be foreseen that ways would be found out to load the
articles of import and export, during the passage through their
jurisdiction, with duties which would fall on the makers of the
latter and the consumers of the former. We may be assured by past
experience, that such a practice would be introduced by future
contrivances; and both by that and a common knowledge of human
affairs, that it would nourish unceasing animosities, and not
improbably terminate in serious interruptions of the public
tranquillity. To those who do not view the question through the
medium of passion or of interest, the desire of the commercial
States to collect, in any form, an indirect revenue from their
uncommercial neighbors, must appear not less impolitic than it is
unfair; since it would stimulate the injured party, by resentment
as well as interest, to resort to less convenient channels for
their foreign trade. But the mild voice of reason, pleading the
cause of an enlarged and permanent interest, is but too often
drowned, before public bodies as well as individuals, by the
clamors of an impatient avidity for immediate and immoderate
gain. The necessity of a superintending authority over the
reciprocal trade of confederated States, has been illustrated by
other examples as well as our own. In Switzerland, where the
Union is so very slight, each canton is obliged to allow to
merchandises a passage through its jurisdiction into other
cantons, without an augmentation of the tolls. In Germany it is a
law of the empire, that the princes and states shall not lay
tolls or customs on bridges, rivers, or passages, without the
consent of the emperor and the diet; though it appears from a
quotation in an antecedent paper, that the practice in this, as
in many other instances in that confederacy, has not followed the
law, and has produced there the mischiefs which have been
foreseen here. Among the restraints imposed by the Union of the
Netherlands on its members, one is, that they shall not establish
imposts disadvantageous to their neighbors, without the general
permission. The regulation of commerce with the Indian tribes is
very properly unfettered from two limitations in the articles of
Confederation, which render the provision obscure and
contradictory. The power is there restrained to Indians, not
members of any of the States, and is not to violate or infringe
the legislative right of any State within its own limits. What
description of Indians are to be deemed members of a State, is
not yet settled, and has been a question of frequent perplexity
and contention in the federal councils. And how the trade with
Indians, though not members of a State, yet residing within its
legislative jurisdiction, can be regulated by an external
authority, without so far intruding on the internal rights of
legislation, is absolutely incomprehensible. This is not the only
case in which the articles of Confederation have inconsiderately
endeavored to accomplish impossibilities; to reconcile a partial
sovereignty in the Union, with complete sovereignty in the
States; to subvert a mathematical axiom, by taking away a part,
and letting the whole remain. All that need be remarked on the
power to coin money, regulate the value thereof, and of foreign
coin, is, that by providing for this last case, the Constitution
has supplied a material omission in the articles of
Confederation. The authority of the existing Congress is
restrained to the regulation of coin STRUCK by their own
authority, or that of the respective States. It must be seen at
once that the proposed uniformity in the VALUE of the current
coin might be destroyed by subjecting that of foreign coin to the
different regulations of the different States. The punishment of
counterfeiting the public securities, as well as the current
coin, is submitted of course to that authority which is to secure
the value of both. The regulation of weights and measures is
transferred from the articles of Confederation, and is founded on
like considerations with the preceding power of regulating coin.
The dissimilarity in the rules of naturalization has long been
remarked as a fault in our system, and as laying a foundation for
intricate and delicate questions. In the fourth article of the
Confederation, it is declared ``that the FREE INHABITANTS of each
of these States, paupers, vagabonds, and fugitives from justice,
excepted, shall be entitled to all privileges and immunities of
FREE CITIZENS in the several States; and THE PEOPLE of each State
shall, in every other, enjoy all the privileges of trade and
commerce,'' etc. There is a confusion of language here, which is
remarkable. Why the terms FREE INHABITANTS are used in one part
of the article, FREE CITIZENS in another, and PEOPLE in another;
or what was meant by superadding to ``all privileges and
immunities of free citizens,'' ``all the privileges of trade and
commerce,''
cannot easily be determined. It seems to be a construction
scarcely avoidable, however, that those who come under the
denomination of FREE INHABITANTS of a State, although not
citizens of such State, are entitled, in every other State, to
all the privileges of FREE CITIZENS of the latter; that is, to
greater privileges than they may be entitled to in their own
State: so that it may be in the power of a particular State, or
rather every State is laid under a necessity, not only to confer
the rights of citizenship in other States upon any whom it may
admit to such rights within itself, but upon any whom it may
allow to become inhabitants within its jurisdiction. But were an
exposition of the term ``inhabitants'' to be admitted which
would confine the stipulated privileges to citizens alone, the
difficulty is diminished only, not removed. The very improper
power would still be retained by each State, of naturalizing
aliens in every other State. In one State, residence for a short
term confirms all the rights of citizenship: in another,
qualifications of greater importance are required. An alien,
therefore, legally incapacitated for certain rights in the
latter, may, by previous residence only in the former, elude his
incapacity; and thus the law of one State be preposterously
rendered paramount to the law of another, within the jurisdiction
of the other. We owe it to mere casualty, that very serious
embarrassments on this subject have been hitherto escaped. By the
laws of several States, certain descriptions of aliens, who had
rendered themselves obnoxious, were laid under interdicts
inconsistent not only with the rights of citizenship but with the
privilege of residence. What would have been the consequence, if
such persons, by residence or otherwise, had acquired the
character of citizens under the laws of another State, and then
asserted their rights as such, both to residence and citizenship,
within the State proscribing them? Whatever the legal
consequences might have been, other consequences would probably
have resulted, of too serious a nature not to be provided
against. The new Constitution has accordingly, with great
propriety, made provision against them, and all others proceeding
from the defect of the Confederation on this head, by authorizing
the general government to establish a uniform rule of
naturalization throughout the United States. The power of
establishing uniform laws of bankruptcy is so intimately
connected with the regulation of commerce, and will prevent so
many frauds where the parties or their property may lie or be
removed into different States, that the expediency of it seems
not likely to be drawn into question. The power of prescribing
by general laws, the manner in which the public acts, records and
judicial proceedings of each State shall be proved, and the
effect they shall have in other States, is an evident and
valuable improvement on the clause relating to this subject in
the articles of Confederation. The meaning of the latter is
extremely indeterminate, and can be of little importance under
any interpretation which it will bear. The power here established
may be rendered a very convenient instrument of justice, and be
particularly beneficial on the borders of contiguous States,
where the effects liable to justice may be suddenly and secretly
translated, in any stage of the process, within a foreign
jurisdiction. The power of establishing post roads must, in
every view, be a harmless power, and may, perhaps, by judicious
management, become productive of great public conveniency.
Nothing which tends to facilitate the intercourse between the
States can be deemed unworthy of the public care. PUBLIUS.
FEDERALIST No. 43
The Same Subject Continued(The Powers Conferred by the
Constitution Further Considered)
For the Independent Journal.
MADISON
To the People of the State of New York:
THE FOURTH class comprises the following miscellaneous powers:1.
A power ``to promote the progress of science and useful arts, by
securing, for a limited time, to authors and inventors, the
exclusive right to their respective writings and discoveries.
''The utility of this power will scarcely be questioned. The
copyright of authors has been solemnly adjudged, in Great
Britain, to be a right of common law. The right to useful
inventions seems with equal reason to belong to the inventors.
The public good fully coincides in both cases with the claims of
individuals. The States cannot separately make effectual
provisions for either of the cases, and most of them have
anticipated the decision of this point, by laws passed at the
instance of Congress. 2. ``To exercise exclusive legislation, in
all cases whatsoever, over such district (not exceeding ten miles
square) as may, by cession of particular States and the
acceptance of Congress, become the seat of the government of the
United States; and to exercise like authority over all places
purchased by the consent of the legislatures of the States in
which the same shall be, for the erection of forts, magazines,
arsenals, dockyards, and other needful buildings. ''The
indispensable necessity of complete authority at the seat of
government, carries its own evidence with it. It is a power
exercised by every legislature of the Union, I might say of the
world, by virtue of its general supremacy. Without it, not only
the public authority might be insulted and its proceedings
interrupted with impunity; but a dependence of the members of the
general government on the State comprehending the seat of the
government, for protection in the exercise of their duty, might
bring on the national councils an imputation of awe or influence,
equally dishonorable to the government and dissatisfactory to the
other members of the Confederacy. This consideration has the more
weight, as the gradual accumulation of public improvements at the
stationary residence of the government would be both too great a
public pledge to be left in the hands of a single State, and
would create so many obstacles to a removal of the government, as
still further to abridge its necessary independence. The extent
of this federal district is sufficiently circumscribed to satisfy
every jealousy of an opposite nature. And as it is to be
appropriated to this use with the consent of the State ceding it;
as the State will no doubt provide in the compact for the rights
and the consent of the citizens inhabiting it; as the inhabitants
will find sufficient inducements of interest to become willing
parties to the cession; as they will have had their voice in the
election of the government which is to exercise authority over
them; as a municipal legislature for local purposes, derived from
their own suffrages, will of course be allowed them; and as the
authority of the legislature of the State, and of the inhabitants
of the ceded part of it, to concur in the cession, will be
derived from the whole people of the State in their adoption of
the Constitution, every imaginable objection seems to be
obviated. The necessity of a like authority over forts,
magazines, etc. , established by the general government, is not
less evident. The public money expended on such places, and the
public property deposited in them, requires that they should be
exempt from the authority of the particular State. Nor would it
be proper for the places on which the security of the entire
Union may depend, to be in any degree dependent on a particular
member of it. All objections and scruples are here also obviated,
by requiring the concurrence of the States concerned, in every
such establishment. 3. ``To declare the punishment of treason,
but no attainder of treason shall work corruption of blood, or
forfeiture, except during the life of the person attained. ''As
treason may be committed against the United States, the authority
of the United States ought to be enabled to punish it. But as
new-fangled and artificial treasons have been the great engines
by which violent factions, the natural offspring of free
government, have usually wreaked their alternate malignity on
each other, the convention have, with great judgment, opposed a
barrier to this peculiar danger, by inserting a constitutional
definition of the crime, fixing the proof necessary for
conviction of it, and restraining the Congress, even in punishing
it, from extending the consequences of guilt beyond the person of
its author. 4. ``To admit new States into the Union; but no new
State shall be formed or erected within the jurisdiction of any
other State; nor any State be formed by the junction of two or
more States, or parts of States, without the consent of the
legislatures of the States concerned, as well as of the Congress.
''In the articles of Confederation, no provision is found on this
important subject. Canada was to be admitted of right, on her
joining in the measures of the United States; and the other
COLONIES, by which were evidently meant the other British
colonies, at the discretion of nine States. The eventual
establishment of NEW STATES seems to have been overlooked by the
compilers of that instrument. We have seen the inconvenience of
this omission, and the assumption of power into which Congress
have been led by it. With great propriety, therefore, has the new
system supplied the defect. The general precaution, that no new
States shall be formed, without the concurrence of the federal
authority, and that of the States concerned, is consonant to the
principles which ought to govern such transactions. The
particular precaution against the erection of new States, by the
partition of a State without its consent, quiets the jealousy of
the larger States; as that of the smaller is quieted by a like
precaution, against a junction of States without their consent.
5. ``To dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the
United States, with a proviso, that nothing in the Constitution
shall be so construed as to prejudice any claims of the United
States, or of any particular State. ''This is a power of very
great importance, and required by considerations similar to those
which show the propriety of the former. The proviso annexed is
proper in itself, and was probably rendered absolutely necessary
by jealousies and questions concerning the Western territory
sufficiently known to the public. 6. ``To guarantee to every
State in the Union a republican form of government; to protect
each of them against invasion; and on application of the
legislature, or of the executive (when the legislature cannot be
convened), against domestic violence. ''In a confederacy founded
on republican principles, and composed of republican members, the
superintending government ought clearly to possess authority to
defend the system against aristocratic or monarchial
innovations. The more intimate the nature of such a union may be,
the greater interest have the members in the political
institutions of each other; and the greater right to insist that
the forms of government under which the compact was entered into
should be SUBSTANTIALLY maintained. But a right implies a remedy;
and where else could the remedy be deposited, than where it is
deposited by the Constitution? Governments of dissimilar
principles and forms have been found less adapted to a federal
coalition of any sort, than those of a kindred nature. ``As the
confederate republic of Germany,'' says Montesquieu, ``consists
of free cities and petty states, subject to different princes,
experience shows us that it is more imperfect than that of
Holland and Switzerland. '' ``Greece was undone,'' he adds, ``as
soon as the king of Macedon obtained a seat among the
Amphictyons. '' In the latter case, no doubt, the
disproportionate force, as well as the monarchical form, of the
new confederate, had its share of influence on the events. It may
possibly be asked, what need there could be of such a
precaution, and whether it may not become a pretext for
alterations in the State governments, without the concurrence of
the States themselves. These questions admit of ready answers. If
the interposition of the general government should not be
needed, the provision for such an event will be a harmless
superfluity only in the Constitution. But who can say what
experiments may be produced by the caprice of particular States,
by the ambition of enterprising leaders, or by the intrigues and
influence of foreign powers? To the second question it may be
answered, that if the general government should interpose by
virtue of this constitutional authority, it will be, of course,
bound to pursue the authority. But the authority extends no
further than to a GUARANTY of a republican form of government,
which supposes a pre-existing government of the form which is to
be guaranteed. As long, therefore, as the existing republican
forms are continued by the States, they are guaranteed by the
federal Constitution. Whenever the States may choose to
substitute other republican forms, they have a right to do so,
and to claim the federal guaranty for the latter. The only
restriction imposed on them is, that they shall not exchange
republican for antirepublican Constitutions; a restriction
which, it is presumed, will hardly be considered as a grievance.
A protection against invasion is due from every society to the
parts composing it. The latitude of the expression here used
seems to secure each State, not only against foreign hostility,
but against ambitious or vindictive enterprises of its more
powerful neighbors. The history, both of ancient and modern
confederacies, proves that the weaker members of the union ought
not to be insensible to the policy of this article. Protection
against domestic violence is added with equal propriety. It has
been remarked, that even among the Swiss cantons, which, properly
speaking, are not under one government, provision is made for
this object; and the history of that league informs us that
mutual aid is frequently claimed and afforded; and as well by
the most democratic, as the other cantons. A recent and
well-known event among ourselves has warned us to be prepared for
emergencies of a like nature. At first view, it might seem not
to square with the republican theory, to suppose, either that a
majority have not the right, or that a minority will have the
force, to subvert a government; and consequently, that the
federal interposition can never be required, but when it would be
improper. But theoretic reasoning, in this as in most other
cases, must be qualified by the lessons of practice. Why may not
illicit combinations, for purposes of violence, be formed as
well by a majority of a State, especially a small State as by a
majority of a county, or a district of the same State; and if
the authority of the State ought, in the latter case, to protect
the local magistracy, ought not the federal authority, in the
former, to support the State authority? Besides, there are
certain parts of the State constitutions which are so interwoven
with the federal Constitution, that a violent blow cannot be
given to the one without communicating the wound to the other.
Insurrections in a State will rarely induce a federal
interposition, unless the number concerned in them bear some
proportion to the friends of government. It will be much better
that the violence in such cases should be repressed by the
superintending power, than that the majority should be left to
maintain their cause by a bloody and obstinate contest. The
existence of a right to interpose, will generally prevent the
necessity of exerting it. Is it true that force and right are
necessarily on the same side in republican governments? May not
the minor party possess such a superiority of pecuniary
resources, of military talents and experience, or of secret
succors from foreign powers, as will render it superior also in
an appeal to the sword? May not a more compact and advantageous
position turn the scale on the same side, against a superior
number so situated as to be less capable of a prompt and
collected exertion of its strength? Nothing can be more
chimerical than to imagine that in a trial of actual force,
victory may be calculated by the rules which prevail in a census
of the inhabitants, or which determine the event of an election!
May it not happen, in fine, that the minority of CITIZENS may
become a majority of PERSONS, by the accession of alien
residents, of a casual concourse of adventurers, or of those whom
the constitution of the State has not admitted to the rights of
suffrage? I take no notice of an unhappy species of population
abounding in some of the States, who, during the calm of regular
government, are sunk below the level of men; but who, in the
tempestuous scenes of civil violence, may emerge into the human
character, and give a superiority of strength to any party with
which they may associate themselves. In cases where it may be
doubtful on which side justice lies, what better umpires could
be desired by two violent factions, flying to arms, and tearing a
State to pieces, than the representatives of confederate States,
not heated by the local flame? To the impartiality of judges,
they would unite the affection of friends. Happy would it be if
such a remedy for its infirmities could be enjoyed by all free
governments; if a project equally effectual could be established
for the universal peace of mankind! Should it be asked, what is
to be the redress for an insurrection pervading all the States,
and comprising a superiority of the entire force, though not a
constitutional right? the answer must be, that such a case, as
it would be without the compass of human remedies, so it is
fortunately not within the compass of human probability; and
that it is a sufficient recommendation of the federal
Constitution, that it diminishes the risk of a calamity for which
no possible constitution can provide a cure. Among the
advantages of a confederate republic enumerated by Montesquieu,
an important one is, ``that should a popular insurrection happen
in one of the States, the others are able to quell it. Should
abuses creep into one part, they are reformed by those that
remain sound. ''7. ``To consider all debts contracted, and
engagements entered into, before the adoption of this
Constitution, as being no less valid against the United States,
under this Constitution, than under the Confederation. ''This
can only be considered as a declaratory proposition; and may have
been inserted, among other reasons, for the satisfaction of the
foreign creditors of the United States, who cannot be strangers
to the pretended doctrine, that a change in the political form of
civil society has the magical effect of dissolving its moral
obligations. Among the lesser criticisms which have been
exercised on the Constitution, it has been remarked that the
validity of engagements ought to have been asserted in favor of
the United States, as well as against them; and in the spirit
which usually characterizes little critics, the omission has been
transformed and magnified into a plot against the national
rights. The authors of this discovery may be told, what few
others need to be informed of, that as engagements are in their
nature reciprocal, an assertion of their validity on one side,
necessarily involves a validity on the other side; and that as
the article is merely declaratory, the establishment of the
principle in one case is sufficient for every case. They may be
further told, that every constitution must limit its precautions
to dangers that are not altogether imaginary; and that no real
danger can exist that the government would DARE, with, or even
without, this constitutional declaration before it, to remit the
debts justly due to the public, on the pretext here condemned. 8.
``To provide for amendments to be ratified by three fourths of
the States under two exceptions only. ''That useful alterations
will be suggested by experience, could not but be foreseen. It
was requisite, therefore, that a mode for introducing them should
be provided. The mode preferred by the convention seems to be
stamped with every mark of propriety. It guards equally against
that extreme facility, which would render the Constitution too
mutable; and that extreme difficulty, which might perpetuate its
discovered faults. It, moreover, equally enables the general and
the State governments to originate the amendment of errors, as
they may be pointed out by the experience on one side, or on the
other. The exception in favor of the equality of suffrage in the
Senate, was probably meant as a palladium to the residuary
sovereignty of the States, implied and secured by that principle
of representation in one branch of the legislature; and was
probably insisted on by the States particularly attached to that
equality. The other exception must have been admitted on the same
considerations which produced the privilege defended by it. 9.
``The ratification of the conventions of nine States shall be
sufficient for the establishment of this Constitution between the
States, ratifying the same. ''This article speaks for itself.
The express authority of the people alone could give due validity
to the Constitution. To have required the unanimous ratification
of the thirteen States, would have subjected the essential
interests of the whole to the caprice or corruption of a single
member. It would have marked a want of foresight in the
convention, which our own experience would have rendered
inexcusable. Two questions of a very delicate nature present
themselves on this occasion: 1. On what principle the
Confederation, which stands in the solemn form of a compact among
the States, can be superseded without the unanimous consent of
the parties to it? 2. What relation is to subsist between the
nine or more States ratifying the Constitution, and the remaining
few who do not become parties to it? The first question is
answered at once by recurring to the absolute necessity of the
case; to the great principle of self-preservation; to the
transcendent law of nature and of nature's God, which declares
that the safety and happiness of society are the objects at which
all political institutions aim, and to which all such
institutions must be sacrificed. PERHAPS, also, an answer may be
found without searching beyond the principles of the compact
itself. It has been heretofore noted among the defects of the
Confederation, that in many of the States it had received no
higher sanction than a mere legislative ratification. The
principle of reciprocality seems to require that its obligation
on the other States should be reduced to the same standard. A
compact between independent sovereigns, founded on ordinary acts
of legislative authority, can pretend to no higher validity than
a league or treaty between the parties. It is an established
doctrine on the subject of treaties, that all the articles are
mutually conditions of each other; that a breach of any one
article is a breach of the whole treaty; and that a breach,
committed by either of the parties, absolves the others, and
authorizes them, if they please, to pronounce the compact
violated and void. Should it unhappily be necessary to appeal to
these delicate truths for a justification for dispensing with
the consent of particular States to a dissolution of the federal
pact, will not the complaining parties find it a difficult task
to answer the MULTIPLIED and IMPORTANT infractions with which
they may be confronted? The time has been when it was incumbent
on us all to veil the ideas which this paragraph exhibits. The
scene is now changed, and with it the part which the same motives
dictate. The second question is not less delicate; and the
flattering prospect of its being merely hypothetical forbids an
overcurious discussion of it. It is one of those cases which must
be left to provide for itself. In general, it may be observed,
that although no political relation can subsist between the
assenting and dissenting States, yet the moral relations will
remain uncancelled. The claims of justice, both on one side and
on the other, will be in force, and must be fulfilled; the
rights of humanity must in all cases be duly and mutually
respected; whilst considerations of a common interest, and,
above all, the remembrance of the endearing scenes which are
past, and the anticipation of a speedy triumph over the obstacles
to reunion, will, it is hoped, not urge in vain MODERATION on one
side, and PRUDENCE on the other. PUBLIUS.
FEDERALIST No. 44
Restrictions on the Authority of the Several States
From the New York Packet. Friday, January 25, 1788.
MADISON
To the People of the State of New York:
A FIFTH class of provisions in favor of the federal authority
consists of the following restrictions on the authority of the
several States:1. ``No State shall enter into any treaty,
alliance, or confederation; grant letters of marque and reprisal;
coin money; emit bills of credit; make any thing but gold and
silver a legal tender in payment of debts; pass any bill of
attainder, ex-post-facto law, or law impairing the obligation of
contracts; or grant any title of nobility. ''The prohibition
against treaties, alliances, and confederations makes a part of
the existing articles of Union; and for reasons which need no
explanation, is copied into the new Constitution. The prohibition
of letters of marque is another part of the old system, but is
somewhat extended in the new. According to the former, letters of
marque could be granted by the States after a declaration of war;
according to the latter, these licenses must be obtained, as well
during war as previous to its declaration, from the government of
the United States. This alteration is fully justified by the
advantage of uniformity in all points which relate to foreign
powers; and of immediate responsibility to the nation in all
those for whose conduct the nation itself is to be responsible.
The right of coining money, which is here taken from the States,
was left in their hands by the Confederation, as a concurrent
right with that of Congress, under an exception in favor of the
exclusive right of Congress to regulate the alloy and value. In
this instance, also, the new provision is an improvement on the
old. Whilst the alloy and value depended on the general
authority, a right of coinage in the particular States could have
no other effect than to multiply expensive mints and diversify
the forms and weights of the circulating pieces. The latter
inconveniency defeats one purpose for which the power was
originally submitted to the federal head; and as far as the
former might prevent an inconvenient remittance of gold and
silver to the central mint for recoinage, the end can be as well
attained by local mints established under the general authority.
The extension of the prohibition to bills of credit must give
pleasure to every citizen, in proportion to his love of justice
and his knowledge of the true springs of public prosperity. The
loss which America has sustained since the peace, from the
pestilent effects of paper money on the necessary confidence
between man and man, on the necessary confidence in the public
councils, on the industry and morals of the people, and on the
character of republican government, constitutes an enormous debt
against the States chargeable with this unadvised measure, which
must long remain unsatisfied; or rather an accumulation of guilt,
which can be expiated no otherwise than by a voluntary sacrifice
on the altar of justice, of the power which has been the
instrument of it. In addition to these persuasive
considerations, it may be observed, that the same reasons which
show the necessity of denying to the States the power of
regulating coin, prove with equal force that they ought not to be
at liberty to substitute a paper medium in the place of coin. Had
every State a right to regulate the value of its coin, there
might be as many different currencies as States, and thus the
intercourse among them would be impeded; retrospective
alterations in its value might be made, and thus the citizens of
other States be injured, and animosities be kindled among the
States themselves. The subjects of foreign powers might suffer
from the same cause, and hence the Union be discredited and
embroiled by the indiscretion of a single member. No one of these
mischiefs is less incident to a power in the States to emit paper
money, than to coin gold or silver. The power to make any thing
but gold and silver a tender in payment of debts, is withdrawn
from the States, on the same principle with that of issuing a
paper currency. Bills of attainder, ex-post-facto laws, and laws
impairing the obligation of contracts, are contrary to the first
principles of the social compact, and to every principle of sound
legislation. The two former are expressly prohibited by the
declarations prefixed to some of the State constitutions, and all
of them are prohibited by the spirit and scope of these
fundamental charters. Our own experience has taught us,
nevertheless, that additional fences against these dangers ought
not to be omitted. Very properly, therefore, have the convention
added this constitutional bulwark in favor of personal security
and private rights; and I am much deceived if they have not, in
so doing, as faithfully consulted the genuine sentiments as the
undoubted interests of their constituents. The sober people of
America are weary of the fluctuating policy which has directed
the public councils. They have seen with regret and indignation
that sudden changes and legislative interferences, in cases
affecting personal rights, become jobs in the hands of
enterprising and influential speculators, and snares to the
more-industrious and lessinformed part of the community. They
have seen, too, that one legislative interference is but the
first link of a long chain of repetitions, every subsequent
interference being naturally produced by the effects of the
preceding. They very rightly infer, therefore, that some thorough
reform is wanting, which will banish speculations on public
measures, inspire a general prudence and industry, and give a
regular course to the business of society. The prohibition with
respect to titles of nobility is copied from the articles of
Confederation and needs no comment. 2. ``No State shall, without
the consent of the Congress, lay any imposts or duties on imports
or exports, except what may be absolutely necessary for executing
its inspection laws, and the net produce of all duties and
imposts laid by any State on imports or exports, shall be for the
use of the treasury of the United States; and all such laws shall
be subject to the revision and control of the Congress. No State
shall, without the consent of Congress, lay any duty on tonnage,
keep troops or ships of war in time of peace, enter into any
agreement or compact with another State, or with a foreign power,
or engage in war unless actually invaded, or in such imminent
danger as will not admit of delay. ''The restraint on the power
of the States over imports and exports is enforced by all the
arguments which prove the necessity of submitting the regulation
of trade to the federal councils. It is needless, therefore, to
remark further on this head, than that the manner in which the
restraint is qualified seems well calculated at once to secure to
the States a reasonable discretion in providing for the
conveniency of their imports and exports, and to the United
States a reasonable check against the abuse of this discretion.
The remaining particulars of this clause fall within reasonings
which are either so obvious, or have been so fully developed,
that they may be passed over without remark. The SIXTH and last
class consists of the several powers and provisions by which
efficacy is given to all the rest. 1. Of these the first is, the
``power to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the government of the
United States, or in any department or officer thereof. ''Few
parts of the Constitution have been assailed with more
intemperance than this; yet on a fair investigation of it, no
part can appear more completely invulnerable. Without the
SUBSTANCE of this power, the whole Constitution would be a dead
letter. Those who object to the article, therefore, as a part of
the Constitution, can only mean that the FORM of the provision is
improper. But have they considered whether a better form could
have been substituted? There are four other possible methods
which the Constitution might have taken on this subject. They
might have copied the second article of the existing
Confederation, which would have prohibited the exercise of any
power not EXPRESSLY delegated; they might have attempted a
positive enumeration of the powers comprehended under the general
terms ``necessary and proper''; they might have attempted a
negative enumeration of them, by specifying the powers excepted
from the general definition; they might have been altogether
silent on the subject, leaving these necessary and proper powers
to construction and inference. Had the convention taken the
first method of adopting the second article of Confederation, it
is evident that the new Congress would be continually exposed, as
their predecessors have been, to the alternative of construing
the term ``EXPRESSLY'' with so much rigor, as to disarm the
government of all real authority whatever, or with so much
latitude as to destroy altogether the force of the restriction.
It would be easy to show, if it were necessary, that no important
power, delegated by the articles of Confederation, has been or
can be executed by Congress, without recurring more or less to
the doctrine of CONSTRUCTION or IMPLICATION. As the powers
delegated under the new system are more extensive, the government
which is to administer it would find itself still more distressed
with the alternative of betraying the public interests by doing
nothing, or of violating the Constitution by exercising powers
indispensably necessary and proper, but, at the same time, not
EXPRESSLY granted. Had the convention attempted a positive
enumeration of the powers necessary and proper for carrying their
other powers into effect, the attempt would have involved a
complete digest of laws on every subject to which the
Constitution relates; accommodated too, not only to the existing
state of things, but to all the possible changes which futurity
may produce; for in every new application of a general power, the
PARTICULAR POWERS, which are the means of attaining the OBJECT of
the general power, must always necessarily vary with that object,
and be often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or means
not necessary or proper for carrying the general powers into
execution, the task would have been no less chimerical; and would
have been liable to this further objection, that every defect in
the enumeration would have been equivalent to a positive grant of
authority. If, to avoid this consequence, they had attempted a
partial enumeration of the exceptions, and described the residue
by the general terms, NOT NECESSARY OR PROPER, it must have
happened that the enumeration would comprehend a few of the
excepted powers only; that these would be such as would be least
likely to be assumed or tolerated, because the enumeration would
of course select such as would be least necessary or proper; and
that the unnecessary and improper powers included in the
residuum, would be less forcibly excepted, than if no partial
enumeration had been made. Had the Constitution been silent on
this head, there can be no doubt that all the particular powers
requisite as means of executing the general powers would have
resulted to the government, by unavoidable implication. No axiom
is more clearly established in law, or in reason, than that
wherever the end is required, the means are authorized; wherever
a general power to do a thing is given, every particular power
necessary for doing it is included. Had this last method,
therefore, been pursued by the convention, every objection now
urged against their plan would remain in all its plausibility;
and the real inconveniency would be incurred of not removing a
pretext which may be seized on critical occasions for drawing
into question the essential powers of the Union. If it be asked
what is to be the consequence, in case the Congress shall
misconstrue this part of the Constitution, and exercise powers
not warranted by its true meaning, I answer, the same as if they
should misconstrue or enlarge any other power vested in them; as
if the general power had been reduced to particulars, and any one
of these were to be violated; the same, in short, as if the State
legislatures should violate the irrespective constitutional
authorities. In the first instance, the success of the usurpation
will depend on the executive and judiciary departments, which are
to expound and give effect to the legislative acts; and in the
last resort a remedy must be obtained from the people who can, by
the election of more faithful representatives, annul the acts of
the usurpers. The truth is, that this ultimate redress may be
more confided in against unconstitutional acts of the federal
than of the State legislatures, for this plain reason, that as
every such act of the former will be an invasion of the rights of
the latter, these will be ever ready to mark the innovation, to
sound the alarm to the people, and to exert their local influence
in effecting a change of federal representatives. There being no
such intermediate body between the State legislatures and the
people interested in watching the conduct of the former,
violations of the State constitutions are more likely to remain
unnoticed and unredressed. 2. ``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 indiscreet zeal of the adversaries to the
Constitution has betrayed them into an attack on this part of it
also, without which it would have been evidently and radically
defective. To be fully sensible of this, we need only suppose for
a moment that the supremacy of the State constitutions had been
left complete by a saving clause in their favor. In the first
place, as these constitutions invest the State legislatures with
absolute sovereignty, in all cases not excepted by the existing
articles of Confederation, all the authorities contained in the
proposed Constitution, so far as they exceed those enumerated in
the Confederation, would have been annulled, and the new Congress
would have been reduced to the same impotent condition with their
predecessors. In the next place, as the constitutions of some of
the States do not even expressly and fully recognize the existing
powers of the Confederacy, an express saving of the supremacy of
the former would, in such States, have brought into question
every power contained in the proposed Constitution. In the third
place, as the constitutions of the States differ much from each
other, it might happen that a treaty or national law, of great
and equal importance to the States, would interfere with some and
not with other constitutions, and would consequently be valid in
some of the States, at the same time that it would have no effect
in others. In fine, the world would have seen, for the first
time, a system of government founded on an inversion of the
fundamental principles of all government; it would have seen the
authority of the whole society every where subordinate to the
authority of the parts; it would have seen a monster, in which
the head was under the direction of the members. 3. ``The
Senators and Representatives, and the members of the several
State legislatures, and all executive and judicial officers, both
of the United States and the several States, shall be bound by
oath or affirmation to support this Constitution. ''It has been
asked why it was thought necessary, that the State magistracy
should be bound to support the federal Constitution, and
unnecessary that a like oath should be imposed on the officers of
the United States, in favor of the State constitutions. Several
reasons might be assigned for the distinction. I content myself
with one, which is obvious and conclusive. The members of the
federal government will have no agency in carrying the State
constitutions into effect. The members and officers of the State
governments, on the contrary, will have an essential agency in
giving effect to the federal Constitution. The election of the
President and Senate will depend, in all cases, on the
legislatures of the several States. And the election of the House
of Representatives will equally depend on the same authority in
the first instance; and will, probably, forever be conducted by
the officers, and according to the laws, of the States. 4. Among
the provisions for giving efficacy to the federal powers might be
added those which belong to the executive and judiciary
departments: but as these are reserved for particular examination
in another place, I pass them over in this. We have now
reviewed, in detail, all the articles composing the sum or
quantity of power delegated by the proposed Constitution to the
federal government, and are brought to this undeniable
conclusion, that no part of the power is unnecessary or improper
for accomplishing the necessary objects of the Union. The
question, therefore, whether this amount of power shall be
granted or not, resolves itself into another question, whether or
not a government commensurate to the exigencies of the Union
shall be established; or, in other words, whether the Union
itself shall be preserved. PUBLIUS.
FEDERALIST No. 45
The Alleged Danger From the Powers of the Union to the State
Governments Considered
For the Independent Fournal.
MADISON
To the People of the State of New York:
HAVING shown that no one of the powers transferred to the federal
government is unnecessary or improper, the next question to be
considered is, whether the whole mass of them will be dangerous
to the portion of authority left in the several States. The
adversaries to the plan of the convention, instead of considering
in the first place what degree of power was absolutely necessary
for the purposes of the federal government, have exhausted
themselves in a secondary inquiry into the possible consequences
of the proposed degree of power to the governments of the
particular States. But if the Union, as has been shown, be
essential to the security of the people of America against
foreign danger; if it be essential to their security against
contentions and wars among the different States; if it be
essential to guard them against those violent and oppressive
factions which embitter the blessings of liberty, and against
those military establishments which must gradually poison its
very fountain; if, in a word, the Union be essential to the
happiness of the people of America, is it not preposterous, to
urge as an objection to a government, without which the objects
of the Union cannot be attained, that such a government may
derogate from the importance of the governments of the individual
States? Was, then, the American Revolution effected, was the
American Confederacy formed, was the precious blood of thousands
spilt, and the hard-earned substance of millions lavished, not
that the people of America should enjoy peace, liberty, and
safety, but that the government of the individual States, that
particular municipal establishments, might enjoy a certain extent
of power, and be arrayed with certain dignities and attributes of
sovereignty? We have heard of the impious doctrine in the Old
World, that the people were made for kings, not kings for the
people. Is the same doctrine to be revived in the New, in another
shape that the solid happiness of the people is to be sacrificed
to the views of political institutions of a different form? It is
too early for politicians to presume on our forgetting that the
public good, the real welfare of the great body of the people, is
the supreme object to be pursued; and that no form of government
whatever has any other value than as it may be fitted for the
attainment of this object. Were the plan of the convention
adverse to the public happiness, my voice would be, Reject the
plan. Were the Union itself inconsistent with the public
happiness, it would be, Abolish the Union. In like manner, as far
as the sovereignty of the States cannot be reconciled to the
happiness of the people, the voice of every good citizen must be,
Let the former be sacrificed to the latter. How far the sacrifice
is necessary, has been shown. How far the unsacrificed residue
will be endangered, is the question before us. Several important
considerations have been touched in the course of these papers,
which discountenance the supposition that the operation of the
federal government will by degrees prove fatal to the State
governments. The more I revolve the subject, the more fully I am
persuaded that the balance is much more likely to be disturbed by
the preponderancy of the last than of the first scale. We have
seen, in all the examples of ancient and modern confederacies,
the strongest tendency continually betraying itself in the
members, to despoil the general government of its authorities,
with a very ineffectual capacity in the latter to defend itself
against the encroachments. Although, in most of these examples,
the system has been so dissimilar from that under consideration
as greatly to weaken any inference concerning the latter from the
fate of the former, yet, as the States will retain, under the
proposed Constitution, a very extensive portion of active
sovereignty, the inference ought not to be wholly disregarded. In
the Achaean league it is probable that the federal head had a
degree and species of power, which gave it a considerable
likeness to the government framed by the convention. The Lycian
Confederacy, as far as its principles and form are transmitted,
must have borne a still greater analogy to it. Yet history does
not inform us that either of them ever degenerated, or tended to
degenerate, into one consolidated government. On the contrary, we
know that the ruin of one of them proceeded from the incapacity
of the federal authority to prevent the dissensions, and finally
the disunion, of the subordinate authorities. These cases are the
more worthy of our attention, as the external causes by which the
component parts were pressed together were much more numerous and
powerful than in our case; and consequently less powerful
ligaments within would be sufficient to bind the members to the
head, and to each other. In the feudal system, we have seen a
similar propensity exemplified. Notwithstanding the want of
proper sympathy in every instance between the local sovereigns
and the people, and the sympathy in some instances between the
general sovereign and the latter, it usually happened that the
local sovereigns prevailed in the rivalship for encroachments.
Had no external dangers enforced internal harmony and
subordination, and particularly, had the local sovereigns
possessed the affections of the people, the great kingdoms in
Europe would at this time consist of as many independent princes
as there were formerly feudatory barons. The State government
will have the advantage of the Federal government, whether we
compare them in respect to the immediate dependence of the one on
the other; to the weight of personal influence which each side
will possess; to the powers respectively vested in them; to the
predilection and probable support of the people; to the
disposition and faculty of resisting and frustrating the measures
of each other. The State governments may be regarded as
constituent and essential parts of the federal government; whilst
the latter is nowise essential to the operation or organization
of the former. Without the intervention of the State
legislatures, the President of the United States cannot be
elected at all. They must in all cases have a great share in his
appointment, and will, perhaps, in most cases, of themselves
determine it. The Senate will be elected absolutely and
exclusively by the State legislatures. Even the House of
Representatives, though drawn immediately from the people, will
be chosen very much under the influence of that class of men,
whose influence over the people obtains for themselves an
election into the State legislatures. Thus, each of the principal
branches of the federal government will owe its existence more or
less to the favor of the State governments, and must consequently
feel a dependence, which is much more likely to beget a
disposition too obsequious than too overbearing towards them. On
the other side, the component parts of the State governments will
in no instance be indebted for their appointment to the direct
agency of the federal government, and very little, if at all, to
the local influence of its members. The number of individuals
employed under the Constitution of the United States will be much
smaller than the number employed under the particular States.
There will consequently be less of personal influence on the side
of the former than of the latter. The members of the legislative,
executive, and judiciary departments of thirteen and more States,
the justices of peace, officers of militia, ministerial officers
of justice, with all the county, corporation, and town officers,
for three millions and more of people, intermixed, and having
particular acquaintance with every class and circle of people,
must exceed, beyond all proportion, both in number and influence,
those of every description who will be employed in the
administration of the federal system. Compare the members of the
three great departments of the thirteen States, excluding from
the judiciary department the justices of peace, with the members
of the corresponding departments of the single government of the
Union; compare the militia officers of three millions of people
with the military and marine officers of any establishment which
is within the compass of probability, or, I may add, of
possibility, and in this view alone, we may pronounce the
advantage of the States to be decisive. If the federal government
is to have collectors of revenue, the State governments will have
theirs also. And as those of the former will be principally on
the seacoast, and not very numerous, whilst those of the latter
will be spread over the face of the country, and will be very
numerous, the advantage in this view also lies on the same side.
It is true, that the Confederacy is to possess, and may exercise,
the power of collecting internal as well as external taxes
throughout the States; but it is probable that this power will
not be resorted to, except for supplemental purposes of revenue;
that an option will then be given to the States to supply their
quotas by previous collections of their own; and that the
eventual collection, under the immediate authority of the Union,
will generally be made by the officers, and according to the
rules, appointed by the several States. Indeed it is extremely
probable, that in other instances, particularly in the
organization of the judicial power, the officers of the States
will be clothed with the correspondent authority of the Union.
Should it happen, however, that separate collectors of internal
revenue should be appointed under the federal government, the
influence of the whole number would not bear a comparison with
that of the multitude of State officers in the opposite scale.
Within every district to which a federal collector would be
allotted, there would not be less than thirty or forty, or even
more, officers of different descriptions, and many of them
persons of character and weight, whose influence would lie on the
side of the State. The powers delegated by the proposed
Constitution to the federal government are few and defined. Those
which are to remain in the State governments are numerous and
indefinite. The former will be exercised principally on external
objects, as war, peace, negotiation, and foreign commerce; with
which last the power of taxation will, for the most part, be
connected. The powers reserved to the several States will extend
to all the objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the people, and
the internal order, improvement, and prosperity of the State. The
operations of the federal government will be most extensive and
important in times of war and danger; those of the State
governments, in times of peace and security. As the former
periods will probably bear a small proportion to the latter, the
State governments will here enjoy another advantage over the
federal government. The more adequate, indeed, the federal powers
may be rendered to the national defense, the less frequent will
be those scenes of danger which might favor their ascendancy over
the governments of the particular States. If the new Constitution
be examined with accuracy and candor, it will be found that the
change which it proposes consists much less in the addition of
NEW POWERS to the Union, than in the invigoration of its ORIGINAL
POWERS. The regulation of commerce, it is true, is a new power;
but that seems to be an addition which few oppose, and from which
no apprehensions are entertained. The powers relating to war and
peace, armies and fleets, treaties and finance, with the other
more considerable powers, are all vested in the existing Congress
by the articles of Confederation. The proposed change does not
enlarge these powers; it only substitutes a more effectual mode
of administering them. The change relating to taxation may be
regarded as the most important; and yet the present Congress have
as complete authority to REQUIRE of the States indefinite
supplies of money for the common defense and general welfare, as
the future Congress will have to require them of individual
citizens; and the latter will be no more bound than the States
themselves have been, to pay the quotas respectively taxed on
them. Had the States complied punctually with the articles of
Confederation, or could their compliance have been enforced by as
peaceable means as may be used with success towards single
persons, our past experience is very far from countenancing an
opinion, that the State governments would have lost their
constitutional powers, and have gradually undergone an entire
consolidation. To maintain that such an event would have ensued,
would be to say at once, that the existence of the State
governments is incompatible with any system whatever that
accomplishes the essental purposes of the Union. PUBLIUS.
FEDERALIST No. 46
The Influence of the State and Federal Governments Compared
From the New York Packet. Tuesday, January 29, 1788.
MADISON
To the People of the State of New York:
RESUMING the subject of the last paper, I proceed to inquire
whether the federal government or the State governments will have
the advantage with regard to the predilection and support of the
people. Notwithstanding the different modes in which they are
appointed, we must consider both of them as substantially
dependent on the great body of the citizens of the United States.
I assume this position here as it respects the first, reserving
the proofs for another place. The federal and State governments
are in fact but different agents and trustees of the people,
constituted with different powers, and designed for different
purposes. The adversaries of the Constitution seem to have lost
sight of the people altogether in their reasonings on this
subject; and to have viewed these different establishments, not
only as mutual rivals and enemies, but as uncontrolled by any
common superior in their efforts to usurp the authorities of each
other. These gentlemen must here be reminded of their error. They
must be told that the ultimate authority, wherever the derivative
may be found, resides in the people alone, and that it will not
depend merely on the comparative ambition or address of the
different governments, whether either, or which of them, will be
able to enlarge its sphere of jurisdiction at the expense of the
other. Truth, no less than decency, requires that the event in
every case should be supposed to depend on the sentiments and
sanction of their common constituents. Many considerations,
besides those suggested on a former occasion, seem to place it
beyond doubt that the first and most natural attachment of the
people will be to the governments of their respective States.
Into the administration of these a greater number of individuals
will expect to rise. From the gift of these a greater number of
offices and emoluments will flow. By the superintending care of
these, all the more domestic and personal interests of the people
will be regulated and provided for. With the affairs of these,
the people will be more familiarly and minutely conversant. And
with the members of these, will a greater proportion of the
people have the ties of personal acquaintance and friendship, and
of family and party attachments; on the side of these,
therefore, the popular bias may well be expected most strongly to
incline. Experience speaks the same language in this case. The
federal administration, though hitherto very defective in
comparison with what may be hoped under a better system, had,
during the war, and particularly whilst the independent fund of
paper emissions was in credit, an activity and importance as
great as it can well have in any future circumstances whatever.
It was engaged, too, in a course of measures which had for their
object the protection of everything that was dear, and the
acquisition of everything that could be desirable to the people
at large. It was, nevertheless, invariably found, after the
transient enthusiasm for the early Congresses was over, that the
attention and attachment of the people were turned anew to their
own particular governments; that the federal council was at no
time the idol of popular favor; and that opposition to proposed
enlargements of its powers and importance was the side usually
taken by the men who wished to build their political consequence
on the prepossessions of their fellow-citizens. If, therefore,
as has been elsewhere remarked, the people should in future
become more partial to the federal than to the State governments,
the change can only result from such manifest and irresistible
proofs of a better administration, as will overcome all their
antecedent propensities. And in that case, the people ought not
surely to be precluded from giving most of their confidence where
they may discover it to be most due; but even in that case the
State governments could have little to apprehend, because it is
only within a certain sphere that the federal power can, in the
nature of things, be advantageously administered. The remaining
points on which I propose to compare the federal and State
governments, are the disposition and the faculty they may
respectively possess, to resist and frustrate the measures of
each other. It has been already proved that the members of the
federal will be more dependent on the members of the State
governments, than the latter will be on the former. It has
appeared also, that the prepossessions of the people, on whom
both will depend, will be more on the side of the State
governments, than of the federal government. So far as the
disposition of each towards the other may be influenced by these
causes, the State governments must clearly have the advantage.
But in a distinct and very important point of view, the advantage
will lie on the same side. The prepossessions, which the members
themselves will carry into the federal government, will generally
be favorable to the States; whilst it will rarely happen, that
the members of the State governments will carry into the public
councils a bias in favor of the general government. A local
spirit will infallibly prevail much more in the members of
Congress, than a national spirit will prevail in the legislatures
of the particular States. Every one knows that a great proportion
of the errors committed by the State legislatures proceeds from
the disposition of the members to sacrifice the comprehensive and
permanent interest of the State, to the particular and separate
views of the counties or districts in which they reside. And if
they do not sufficiently enlarge their policy to embrace the
collective welfare of their particular State, how can it be
imagined that they will make the aggregate prosperity of the
Union, and the dignity and respectability of its government, the
objects of their affections and consultations? For the same
reason that the members of the State legislatures will be
unlikely to attach themselves sufficiently to national objects,
the members of the federal legislature will be likely to attach
themselves too much to local objects. The States will be to the
latter what counties and towns are to the former. Measures will
too often be decided according to their probable effect, not on
the national prosperity and happiness, but on the prejudices,
interests, and pursuits of the governments and people of the
individual States. What is the spirit that has in general
characterized the proceedings of Congress? A perusal of their
journals, as well as the candid acknowledgments of such as have
had a seat in that assembly, will inform us, that the members
have but too frequently displayed the character, rather of
partisans of their respective States, than of impartial guardians
of a common interest; that where on one occasion improper
sacrifices have been made of local considerations, to the
aggrandizement of the federal government, the great interests of
the nation have suffered on a hundred, from an undue attention to
the local prejudices, interests, and views of the particular
States. I mean not by these reflections to insinuate, that the
new federal government will not embrace a more enlarged plan of
policy than the existing government may have pursued; much less,
that its views will be as confined as those of the State
legislatures; but only that it will partake sufficiently of the
spirit of both, to be disinclined to invade the rights of the
individual States, or the preorgatives of their governments. The
motives on the part of the State governments, to augment their
prerogatives by defalcations from the federal government, will be
overruled by no reciprocal predispositions in the members. Were
it admitted, however, that the Federal government may feel an
equal disposition with the State governments to extend its power
beyond the due limits, the latter would still have the advantage
in the means of defeating such encroachments. If an act of a
particular State, though unfriendly to the national government,
be generally popular in that State and should not too grossly
violate the oaths of the State officers, it is executed
immediately and, of course, by means on the spot and depending on
the State alone. The opposition of the federal government, or the
interposition of federal officers, would but inflame the zeal of
all parties on the side of the State, and the evil could not be
prevented or repaired, if at all, without the employment of means
which must always be resorted to with reluctance and difficulty.
On the other hand, should an unwarrantable measure of the federal
government be unpopular in particular States, which would seldom
fail to be the case, or even a warrantable measure be so, which
may sometimes be the case, the means of opposition to it are
powerful and at hand. The disquietude of the people; their
repugnance and, perhaps, refusal to co-operate with the officers
of the Union; the frowns of the executive magistracy of the
State; the embarrassments created by legislative devices, which
would often be added on such occasions, would oppose, in any
State, difficulties not to be despised; would form, in a large
State, very serious impediments; and where the sentiments of
several adjoining States happened to be in unison, would present
obstructions which the federal government would hardly be willing
to encounter. But ambitious encroachments of the federal
government, on the authority of the State governments, would not
excite the opposition of a single State, or of a few States
only. They would be signals of general alarm. Every government
would espouse the common cause. A correspondence would be
opened. Plans of resistance would be concerted. One spirit would
animate and conduct the whole. The same combinations, in short,
would result from an apprehension of the federal, as was produced
by the dread of a foreign, yoke; and unless the projected
innovations should be voluntarily renounced, the same appeal to
a trial of force would be made in the one case as was made in the
other. But what degree of madness could ever drive the federal
government to such an extremity. In the contest with Great
Britain, one part of the empire was employed against the other.
The more numerous part invaded the rights of the less numerous
part. The attempt was unjust and unwise; but it was not in
speculation absolutely chimerical. But what would be the contest
in the case we are supposing? Who would be the parties? A few
representatives of the people would be opposed to the people
themselves; or rather one set of representatives would be
contending against thirteen sets of representatives, with the
whole body of their common constituents on the side of the
latter. The only refuge left for those who prophesy the downfall
of the State governments is the visionary supposition that the
federal government may previously accumulate a military force for
the projects of ambition. The reasonings contained in these
papers must have been employed to little purpose indeed, if it
could be necessary now to disprove the reality of this danger.
That the people and the States should, for a sufficient period of
time, elect an uninterupted succession of men ready to betray
both; that the traitors should, throughout this period,
uniformly and systematically pursue some fixed plan for the
extension of the military establishment; that the governments
and the people of the States should silently and patiently behold
the gathering storm, and continue to supply the materials, until
it should be prepared to burst on their own heads, must appear to
every one more like the incoherent dreams of a delirious
jealousy, or the misjudged exaggerations of a counterfeit zeal,
than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a
regular army, fully equal to the resources of the country, be
formed; and let it be entirely at the devotion of the federal
government; still it would not be going too far to say, that the
State governments, with the people on their side, would be able
to repel the danger. The highest number to which, according to
the best computation, a standing army can be carried in any
country, does not exceed one hundredth part of the whole number
of souls; or one twenty-fifth part of the number able to bear
arms. This proportion would not yield, in the United States, an
army of more than twenty-five or thirty thousand men. To these
would be opposed a militia amounting to near half a million of
citizens with arms in their hands, officered by men chosen from
among themselves, fighting for their common liberties, and united
and conducted by governments possessing their affections and
confidence. It may well be doubted, whether a militia thus
circumstanced could ever be conquered by such a proportion of
regular troops. Those who are best acquainted with the last
successful resistance of this country against the British arms,
will be most inclined to deny the possibility of it. Besides the
advantage of being armed, which the Americans possess over the
people of almost every other nation, the existence of
subordinate governments, to which the people are attached, and by
which the militia officers are appointed, forms a barrier against
the enterprises of ambition, more insurmountable than any which a
simple government of any form can admit of. Notwithstanding the
military establishments in the several kingdoms of Europe, which
are carried as far as the public resources will bear, the
governments are afraid to trust the people with arms. And it is
not certain, that with this aid alone they would not be able to
shake off their yokes. But were the people to possess the
additional advantages of local governments chosen by themselves,
who could collect the national will and direct the national
force, and of officers appointed out of the militia, by these
governments, and attached both to them and to the militia, it may
be affirmed with the greatest assurance, that the throne of every
tyranny in Europe would be speedily overturned in spite of the
legions which surround it. Let us not insult the free and gallant
citizens of America with the suspicion, that they would be less
able to defend the rights of which they would be in actual
possession, than the debased subjects of arbitrary power would be
to rescue theirs from the hands of their oppressors. Let us
rather no longer insult them with the supposition that they can
ever reduce themselves to the necessity of making the experiment,
by a blind and tame submission to the long train of insidious
measures which must precede and produce it. The argument under
the present head may be put into a very concise form, which
appears altogether conclusive. Either the mode in which the
federal government is to be constructed will render it
sufficiently dependent on the people, or it will not. On the
first supposition, it will be restrained by that dependence from
forming schemes obnoxious to their constituents. On the other
supposition, it will not possess the confidence of the people,
and its schemes of usurpation will be easily defeated by the
State governments, who will be supported by the people. On
summing up the considerations stated in this and the last paper,
they seem to amount to the most convincing evidence, that the
powers proposed to be lodged in the federal government are as
little formidable to those reserved to the individual States, as
they are indispensably necessary to accomplish the purposes of
the Union; and that all those alarms which have been sounded, of
a meditated and consequential annihilation of the State
governments, must, on the most favorable interpretation, be
ascribed to the chimerical fears of the authors of them. PUBLIUS.
FEDERALIST No. 47
The Particular Structure of the New Government and the
Distribution of Power Among Its Different Parts
From the New York Packet. Friday, February 1, 1788.
MADISON
To the People of the State of New York:
HAVING reviewed the general form of the proposed government and
the general mass of power allotted to it, I proceed to examine
the particular structure of this government, and the distribution
of this mass of power among its constituent parts. One of the
principal objections inculcated by the more respectable
adversaries to the Constitution, is its supposed violation of the
political maxim, that the legislative, executive, and judiciary
departments ought to be separate and distinct. In the structure
of the federal government, no regard, it is said, seems to have
been paid to this essential precaution in favor of liberty. The
several departments of power are distributed and blended in such
a manner as at once to destroy all symmetry and beauty of form,
and to expose some of the essential parts of the edifice to the
danger of being crushed by the disproportionate weight of other
parts. No political truth is certainly of greater intrinsic
value, or is stamped with the authority of more enlightened
patrons of liberty, than that on which the objection is founded.
The accumulation of all powers, legislative, executive, and
judiciary, in the same hands, whether of one, a few, or many, and
whether hereditary, selfappointed, or elective, may justly be
pronounced the very definition of tyranny. Were the federal
Constitution, therefore, really chargeable with the accumulation
of power, or with a mixture of powers, having a dangerous
tendency to such an accumulation, no further arguments would be
necessary to inspire a universal reprobation of the system. I
persuade myself, however, that it will be made apparent to every
one, that the charge cannot be supported, and that the maxim on
which it relies has been totally misconceived and misapplied. In
order to form correct ideas on this important subject, it will be
proper to investigate the sense in which the preservation of
liberty requires that the three great departments of power should
be separate and distinct. The oracle who is always consulted and
cited on this subject is the celebrated Montesquieu. If he be not
the author of this invaluable precept in the science of politics,
he has the merit at least of displaying and recommending it most
effectually to the attention of mankind. Let us endeavor, in the
first place, to ascertain his meaning on this point. The British
Constitution was to Montesquieu what Homer has been to the
didactic writers on epic poetry. As the latter have considered
the work of the immortal bard as the perfect model from which the
principles and rules of the epic art were to be drawn, and by
which all similar works were to be judged, so this great
political critic appears to have viewed the Constitution of
England as the standard, or to use his own expression, as the
mirror of political liberty; and to have delivered, in the form
of elementary truths, the several characteristic principles of
that particular system. That we may be sure, then, not to mistake
his meaning in this case, let us recur to the source from which
the maxim was drawn.
On the slightest view of the British
Constitution, we must perceive that the legislative, executive,
and judiciary departments are by no means totally separate and
distinct from each other. The executive magistrate forms an
integral part of the legislative authority. He alone has the
prerogative of making treaties with foreign sovereigns, which,
when made, have, under certain limitations, the force of
legislative acts. All the members of the judiciary department are
appointed by him, can be removed by him on the address of the two
Houses of Parliament, and form, when he pleases to consult them,
one of his constitutional councils. One branch of the legislative
department forms also a great constitutional council to the
executive chief, as, on another hand, it is the sole depositary
of judicial power in cases of impeachment, and is invested with
the supreme appellate jurisdiction in all other cases. The
judges, again, are so far connected with the legislative
department as often to attend and participate in its
deliberations, though not admitted to a legislative vote. From
these facts, by which Montesquieu was guided, it may clearly be
inferred that, in saying ``There can be no liberty where the
legislative and executive powers are united in the same person,
or body of magistrates,'' or, ``if the power of judging be not
separated from the legislative and executive powers,'' he did not
mean that these departments ought to have no PARTIAL AGENCY in,
or no CONTROL over, the acts of each other. His meaning, as his
own words import, and still more conclusively as illustrated by
the example in his eye, can amount to no more than this, that
where the WHOLE power of one department is exercised by the same
hands which possess the WHOLE power of another department, the
fundamental principles of a free constitution are subverted. This
would have been the case in the constitution examined by him, if
the king, who is the sole executive magistrate, had possessed
also the complete legislative power, or the supreme
administration of justice; or if the entire legislative body had
possessed the supreme judiciary, or the supreme executive
authority. This, however, is not among the vices of that
constitution. The magistrate in whom the whole executive power
resides cannot of himself make a law, though he can put a
negative on every law; nor administer justice in person, though
he has the appointment of those who do administer it. The judges
can exercise no executive prerogative, though they are shoots
from the executive stock; nor any legislative function, though
they may be advised with by the legislative councils. The entire
legislature can perform no judiciary act, though by the joint act
of two of its branches the judges may be removed from their
offices, and though one of its branches is possessed of the
judicial power in the last resort. The entire legislature, again,
can exercise no executive prerogative, though one of its branches
constitutes the supreme executive magistracy, and another, on the
impeachment of a third, can try and condemn all the subordinate
officers in the executive department. The reasons on which
Montesquieu grounds his maxim are a further demonstration of his
meaning. ``When the legislative and executive powers are united
in the same person or body,'' says he, ``there can be no liberty,
because apprehensions may arise lest THE SAME monarch or senate
should ENACT tyrannical laws to EXECUTE them in a tyrannical
manner. '' Again: ``Were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed
to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave
with all the violence of AN OPPRESSOR. '' Some of these reasons
are more fully explained in other passages; but briefly stated as
they are here, they sufficiently establish the meaning which we
have put on this celebrated maxim of this celebrated author.
If we look into the constitutions of the several States, we find
that, notwithstanding the emphatical and, in some instances, the
unqualified terms in which this axiom has been laid down, there
is not a single instance in which the several departments of
power have been kept absolutely separate and distinct. New
Hampshire, whose constitution was the last formed, seems to have
been fully aware of the impossibility and inexpediency of
avoiding any mixture whatever of these departments, and has
qualified the doctrine by declaring ``that the legislative,
executive, and judiciary powers ought to be kept as separate
from, and independent of, each other AS THE NATURE OF A FREE
GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF
CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE
INDISSOLUBLE BOND OF UNITY AND AMITY. '' Her constitution
accordingly mixes these departments in several respects. The
Senate, which is a branch of the legislative department, is also
a judicial tribunal for the trial of impeachments. The
President, who is the head of the executive department, is the
presiding member also of the Senate; and, besides an equal vote
in all cases, has a casting vote in case of a tie. The executive
head is himself eventually elective every year by the
legislative department, and his council is every year chosen by
and from the members of the same department. Several of the
officers of state are also appointed by the legislature. And the
members of the judiciary department are appointed by the
executive department. The constitution of Massachusetts has
observed a sufficient though less pointed caution, in expressing
this fundamental article of liberty. It declares ``that the
legislative department shall never exercise the executive and
judicial powers, or either of them; the executive shall never
exercise the legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative and executive
powers, or either of them. '' This declaration corresponds
precisely with the doctrine of Montesquieu, as it has been
explained, and is not in a single point violated by the plan of
the convention. It goes no farther than to prohibit any one of
the entire departments from exercising the powers of another
department. In the very Constitution to which it is prefixed, a
partial mixture of powers has been admitted. The executive
magistrate has a qualified negative on the legislative body, and
the Senate, which is a part of the legislature, is a court of
impeachment for members both of the executive and judiciary
departments. The members of the judiciary department, again, are
appointable by the executive department, and removable by the
same authority on the address of the two legislative branches.
Lastly, a number of the officers of government are annually
appointed by the legislative department. As the appointment to
offices, particularly executive offices, is in its nature an
executive function, the compilers of the Constitution have, in
this last point at least, violated the rule established by
themselves. I pass over the constitutions of Rhode Island and
Connecticut, because they were formed prior to the Revolution,
and even before the principle under examination had become an
object of political attention. The constitution of New York
contains no declaration on this subject; but appears very
clearly to have been framed with an eye to the danger of
improperly blending the different departments. It gives,
nevertheless, to the executive magistrate, a partial control over
the legislative department; and, what is more, gives a like
control to the judiciary department; and even blends the
executive and judiciary departments in the exercise of this
control. In its council of appointment members of the
legislative are associated with the executive authority, in the
appointment of officers, both executive and judiciary. And its
court for the trial of impeachments and correction of errors is
to consist of one branch of the legislature and the principal
members of the judiciary department. The constitution of New
Jersey has blended the different powers of government more than
any of the preceding. The governor, who is the executive
magistrate, is appointed by the legislature; is chancellor and
ordinary, or surrogate of the State; is a member of the Supreme
Court of Appeals, and president, with a casting vote, of one of
the legislative branches. The same legislative branch acts again
as executive council of the governor, and with him constitutes
the Court of Appeals. The members of the judiciary department are
appointed by the legislative department and removable by one
branch of it, on the impeachment of the other. According to the
constitution of Pennsylvania, the president, who is the head of
the executive department, is annually elected by a vote in which
the legislative department predominates. In conjunction with an
executive council, he appoints the members of the judiciary
department, and forms a court of impeachment for trial of all
officers, judiciary as well as executive. The judges of the
Supreme Court and justices of the peace seem also to be removable
by the legislature; and the executive power of pardoning in
certain cases, to be referred to the same department. The members
of the executive counoil are made EX-OFFICIO justices of peace
throughout the State. In Delaware, the chief executive magistrate
is annually elected by the legislative department. The speakers
of the two legislative branches are vice-presidents in the
executive department. The executive chief, with six others,
appointed, three by each of the legislative branches constitutes
the Supreme Court of Appeals; he is joined with the legislative
department in the appointment of the other judges. Throughout the
States, it appears that the members of the legislature may at the
same time be justices of the peace; in this State, the members of
one branch of it are EX-OFFICIO justices of the peace; as are
also the members of the executive council. The principal officers
of the executive department are appointed by the legislative; and
one branch of the latter forms a court of impeachments. All
officers may be removed on address of the legislature. Maryland
has adopted the maxim in the most unqualified terms; declaring
that the legislative, executive, and judicial powers of
government ought to be forever separate and distinct from each
other. Her constitution, notwithstanding, makes the executive
magistrate appointable by the legislative department; and the
members of the judiciary by the executive department. The
language of Virginia is still more pointed on this subject. Her
constitution declares, ``that the legislative, executive, and
judiciary departments shall be separate and distinct; so that
neither exercise the powers properly belonging to the other; nor
shall any person exercise the powers of more than one of them at
the same time, except that the justices of county courts shall be
eligible to either House of Assembly. '' Yet we find not only
this express exception, with respect to the members of the
irferior courts, but that the chief magistrate, with his
executive council, are appointable by the legislature; that two
members of the latter are triennially displaced at the pleasure
of the legislature; and that all the principal offices, both
executive and judiciary, are filled by the same department. The
executive prerogative of pardon, also, is in one case vested in
the legislative department. The constitution of North Carolina,
which declares ``that the legislative, executive, and supreme
judicial powers of government ought to be forever separate and
distinct from each other,'' refers, at the same time, to the
legislative department, the appointment not only of the executive
chief, but all the principal officers within both that and the
judiciary department. In South Carolina, the constitution makes
the executive magistracy eligible by the legislative department.
It gives to the latter, also, the appointment of the members of
the judiciary department, including even justices of the peace
and sheriffs; and the appointment of officers in the executive
department, down to captains in the army and navy of the State.
In the constitution of Georgia, where it is declared ``that the
legislative, executive, and judiciary departments shall be
separate and distinct, so that neither exercise the powers
properly belonging to the other,'' we find that the executive
department is to be filled by appointments of the legislature;
and the executive prerogative of pardon to be finally exercised
by the same authority. Even justices of the peace are to be
appointed by the legislature. In citing these cases, in which
the legislative, executive, and judiciary departments have not
been kept totally separate and distinct, I wish not to be
regarded as an advocate for the particular organizations of the
several State governments. I am fully aware that among the many
excellent principles which they exemplify, they carry strong
marks of the haste, and still stronger of the inexperience, under
which they were framed. It is but too obvious that in some
instances the fundamental principle under consideration has been
violated by too great a mixture, and even an actual
consolidation, of the different powers; and that in no instance
has a competent provision been made for maintaining in practice
the separation delineated on paper. What I have wished to evince
is, that the charge brought against the proposed Constitution, of
violating the sacred maxim of free government, is warranted
neither by the real meaning annexed to that maxim by its author,
nor by the sense in which it has hitherto been understood in
America. This interesting subject will be resumed in the ensuing
paper. PUBLIUS.
FEDERALIST No. 48
These Departments Should Not Be So Far Separated as to Have No
Constitutional Control Over Each Other
From the New York Packet. Friday, February 1, 1788.
MADISON
To the People of the State of New York:
IT WAS shown in the last paper that the political apothegm there
examined does not require that the legislative, executive, and
judiciary departments should be wholly unconnected with each
other. I shall undertake, in the next place, to show that unless
these departments be so far connected and blended as to give to
each a constitutional control over the others, the degree of
separation which the maxim requires, as essential to a free
government, can never in practice be duly maintained. It is
agreed on all sides, that the powers properly belonging to one of
the departments ought not to be directly and completely
administered by either of the other departments. It is equally
evident, that none of them ought to possess, directly or
indirectly, an overruling influence over the others, in the
administration of their respective powers. It will not be denied,
that power is of an encroaching nature, and that it ought to be
effectually restrained from passing the limits assigned to it.
After discriminating, therefore, in theory, the several classes
of power, as they may in their nature be legislative, executive,
or judiciary, the next and most difficult task is to provide some
practical security for each, against the invasion of the others.
What this security ought to be, is the great problem to be
solved. Will it be sufficient to mark, with precision, the
boundaries of these departments, in the constitution of the
government, and to trust to these parchment barriers against the
encroaching spirit of power? This is the security which appears
to have been principally relied on by the compilers of most of
the American constitutions. But experience assures us, that the
efficacy of the provision has been greatly overrated; and that
some more adequate defense is indispensably necessary for the
more feeble, against the more powerful, members of the
government. The legislative department is everywhere extending
the sphere of its activity, and drawing all power into its
impetuous vortex. The founders of our republics have so much
merit for the wisdom which they have displayed, that no task can
be less pleasing than that of pointing out the errors into which
they have fallen. A respect for truth, however, obliges us to
remark, that they seem never for a moment to have turned their
eyes from the danger to liberty from the overgrown and
all-grasping prerogative of an hereditary magistrate, supported
and fortified by an hereditary branch of the legislative
authority. They seem never to have recollected the danger from
legislative usurpations, which, by assembling all power in the
same hands, must lead to the same tyranny as is threatened by
executive usurpations. In a government where numerous and
extensive prerogatives are placed in the hands of an hereditary
monarch, the executive department is very justly regarded as the
source of danger, and watched with all the jealousy which a zeal
for liberty ought to inspire. In a democracy, where a multitude
of people exercise in person the legislative functions, and are
continually exposed, by their incapacity for regular deliberation
and concerted measures, to the ambitious intrigues of their
executive magistrates, tyranny may well be apprehended, on some
favorable emergency, to start up in the same quarter. But in a
representative republic, where the executive magistracy is
carefully limited; both in the extent and the duration of its
power; and where the legislative power is exercised by an
assembly, which is inspired, by a supposed influence over the
people, with an intrepid confidence in its own strength; which is
sufficiently numerous to feel all the passions which actuate a
multitude, yet not so numerous as to be incapable of pursuing the
objects of its passions, by means which reason prescribes; it is
against the enterprising ambition of this department that the
people ought to indulge all their jealousy and exhaust all their
precautions. The legislative department derives a superiority in
our governments from other circumstances. Its constitutional
powers being at once more extensive, and less susceptible of
precise limits, it can, with the greater facility, mask, under
complicated and indirect measures, the encroachments which it
makes on the co-ordinate departments. It is not unfrequently a
question of real nicety in legislative bodies, whether the
operation of a particular measure will, or will not, extend
beyond the legislative sphere. On the other side, the executive
power being restrained within a narrower compass, and being more
simple in its nature, and the judiciary being described by
landmarks still less uncertain, projects of usurpation by either
of these departments would immediately betray and defeat
themselves. Nor is this all: as the legislative department alone
has access to the pockets of the people, and has in some
constitutions full discretion, and in all a prevailing influence,
over the pecuniary rewards of those who fill the other
departments, a dependence is thus created in the latter, which
gives still greater facility to encroachments of the former. I
have appealed to our own experience for the truth of what I
advance on this subject. Were it necessary to verify this
experience by particular proofs, they might be multiplied
without end. I might find a witness in every citizen who has
shared in, or been attentive to, the course of public
administrations. I might collect vouchers in abundance from the
records and archives of every State in the Union. But as a more
concise, and at the same time equally satisfactory, evidence, I
will refer to the example of two States, attested by two
unexceptionable authorities. The first example is that of
Virginia, a State which, as we have seen, has expressly declared
in its constitution, that the three great departments ought not
to be intermixed. The authority in support of it is Mr.
Jefferson, who, besides his other advantages for remarking the
operation of the government, was himself the chief magistrate of
it. In order to convey fully the ideas with which his experience
had impressed him on this subject, it will be necessary to quote
a passage of some length from his very interesting ``Notes on the
State of Virginia,'' p. 195. ``All the powers of government,
legislative, executive, and judiciary, result to the legislative
body. The concentrating these in the same hands, is precisely the
definition of despotic government. It will be no alleviation,
that these powers will be exercised by a plurality of hands, and
not by a single one. One hundred and seventy-three despots would
surely be as oppressive as one. Let those who doubt it, turn
their eyes on the republic of Venice. As little will it avail us,
that they are chosen by ourselves. An ELECTIVE DESPOTISM was not
the government we fought for; but one which should not only be
founded on free principles, but in which the powers of government
should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits,
without being effectually checked and restrained by the others.
For this reason, that convention which passed the ordinance of
government, laid its foundation on this basis, that the
legislative, executive, and judiciary departments should be
separate and distinct, so that no person should exercise the
powers of more than one of them at the same time. BUT NO BARRIER
WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the
executive members were left dependent on the legislative for
their subsistence in office, and some of them for their
continuance in it. If, therefore, the legislature assumes
executive and judiciary powers, no opposition is likely to be
made; nor, if made, can be effectual; because in that case they
may put their proceedings into the form of acts of Assembly,
which will render them obligatory on the other branches. They
have accordingly, IN MANY instances, DECIDED RIGHTS which should
have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE
EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING
HABITUAL AND FAMILIAR. ''The other State which I shall take for
an example is Pennsylvania; and the other authority, the Council
of Censors, which assembled in the years 1783 and 1784. A part of
the duty of this body, as marked out by the constitution, was
``to inquire whether the constitution had been preserved
inviolate in every part; and whether the legislative and
executive branches of government had performed their duty as
guardians of the people, or assumed to themselves, or exercised,
other or greater powers than they are entitled to by the
constitution. '' In the execution of this trust, the council were
necessarily led to a comparison of both the legislative and
executive proceedings, with the constitutional powers of these
departments; and from the facts enumerated, and to the truth of
most of which both sides in the council subscribed, it appears
that the constitution had been flagrantly violated by the
legislature in a variety of important instances. A great number
of laws had been passed, violating, without any apparent
necessity, the rule requiring that all bills of a public nature
shall be previously printed for the consideration of the people;
although this is one of the precautions chiefly relied on by the
constitution against improper acts of legislature. The
constitutional trial by jury had been violated, and powers
assumed which had not been delegated by the constitution.
Executive powers had been usurped. The salaries of the judges,
which the constitution expressly requires to be fixed, had been
occasionally varied; and cases belonging to the judiciary
department frequently drawn within legislative cognizance and
determination. Those who wish to see the several particulars
falling under each of these heads, may consult the journals of
the council, which are in print. Some of them, it will be found,
may be imputable to peculiar circumstances connected with the
war; but the greater part of them may be considered as the
spontaneous shoots of an ill-constituted government. It appears,
also, that the executive department had not been innocent of
frequent breaches of the constitution. There are three
observations, however, which ought to be made on this head:
FIRST, a great proportion of the instances were either
immediately produced by the necessities of the war, or
recommended by Congress or the commander-in-chief; SECONDLY, in
most of the other instances, they conformed either to the
declared or the known sentiments of the legislative department;
THIRDLY, the executive department of Pennsylvania is
distinguished from that of the other States by the number of
members composing it. In this respect, it has as much affinity
to a legislative assembly as to an executive council. And being
at once exempt from the restraint of an individual responsibility
for the acts of the body, and deriving confidence from mutual
example and joint influence, unauthorized measures would, of
course, be more freely hazarded, than where the executive
department is administered by a single hand, or by a few hands.
The conclusion which I am warranted in drawing from these
observations is, that a mere demarcation on parchment of the
constitutional limits of the several departments, is not a
sufficient guard against those encroachments which lead to a
tyrannical concentration of all the powers of government in the
same hands. PUBLIUS.
FEDERALIST No. 49
Method of Guarding Against the Encroachments of Any One
Department of Government by Appealing to the People Through a
Convention
From the New York Packet. Tuesday, February 5, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
THE author of the ``Notes on the State of Virginia,'' quoted in
the last paper, has subjoined to that valuable work the draught
of a constitution, which had been prepared in order to be laid
before a convention, expected to be called in 1783, by the
legislature, for the establishment of a constitution for that
commonwealth. The plan, like every thing from the same pen, marks
a turn of thinking, original, comprehensive, and accurate; and is
the more worthy of attention as it equally displays a fervent
attachment to republican government and an enlightened view of
the dangerous propensities against which it ought to be guarded.
One of the precautions which he proposes, and on which he appears
ultimately to rely as a palladium to the weaker departments of
power against the invasions of the stronger, is perhaps
altogether his own, and as it immediately relates to the subject
of our present inquiry, ought not to be overlooked. His
proposition is, ``that whenever any two of the three branches of
government shall concur in opinion, each by the voices of two
thirds of their whole number, that a convention is necessary for
altering the constitution, or CORRECTING BREACHES OF IT, a
convention shall be called for the purpose. ''As the people are
the only legitimate fountain of power, and it is from them that
the constitutional charter, under which the several branches of
government hold their power, is derived, it seems strictly
consonant to the republican theory, to recur to the same original
authority, not only whenever it may be necessary to enlarge,
diminish, or new-model the powers of the government, but also
whenever any one of the departments may commit encroachments on
the chartered authorities of the others. The several departments
being perfectly co-ordinate by the terms of their common
commission, none of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between
their respective powers; and how are the encroachments of the
stronger to be prevented, or the wrongs of the weaker to be
redressed, without an appeal to the people themselves, who, as
the grantors of the commissions, can alone declare its true
meaning, and enforce its observance? There is certainly great
force in this reasoning, and it must be allowed to prove that a
constitutional road to the decision of the people ought to be
marked out and kept open, for certain great and extraordinary
occasions. But there appear to be insuperable objections against
the proposed recurrence to the people, as a provision in all
cases for keeping the several departments of power within their
constitutional limits. In the first place, the provision does not
reach the case of a combination of two of the departments against
the third. If the legislative authority, which possesses so many
means of operating on the motives of the other departments,
should be able to gain to its interest either of the others, or
even one third of its members, the remaining department could
derive no advantage from its remedial provision. I do not dwell,
however, on this objection, because it may be thought to be
rather against the modification of the principle, than against
the principle itself. In the next place, it may be considered as
an objection inherent in the principle, that as every appeal to
the people would carry an implication of some defect in the
government, frequent appeals would, in a great measure, deprive
the government of that veneration which time bestows on every
thing, and without which perhaps the wisest and freest
governments would not possess the requisite stability. If it be
true that all governments rest on opinion, it is no less true
that the strength of opinion in each individual, and its
practical influence on his conduct, depend much on the number
which he supposes to have entertained the same opinion. The
reason of man, like man himself, is timid and cautious when left
alone, and acquires firmness and confidence in proportion to the
number with which it is associated. When the examples which
fortify opinion are ANCIENT as well as NUMEROUS, they are known
to have a double effect. In a nation of philosophers, this
consideration ought to be disregarded. A reverence for the laws
would be sufficiently inculcated by the voice of an enlightened
reason. But a nation of philosophers is as little to be expected
as the philosophical race of kings wished for by Plato. And in
every other nation, the most rational government will not find it
a superfluous advantage to have the prejudices of the community
on its side. The danger of disturbing the public tranquillity by
interesting too strongly the public passions, is a still more
serious objection against a frequent reference of constitutional
questions to the decision of the whole society. Notwithstanding
the success which has attended the revisions of our established
forms of government, and which does so much honor to the virtue
and intelligence of the people of America, it must be confessed
that the experiments are of too ticklish a nature to be
unnecessarily multiplied. We are to recollect that all the
existing constitutions were formed in the midst of a danger which
repressed the passions most unfriendly to order and concord; of
an enthusiastic confidence of the people in their patriotic
leaders, which stifled the ordinary diversity of opinions on
great national questions; of a universal ardor for new and
opposite forms, produced by a universal resentment and
indignation against the ancient government; and whilst no spirit
of party connected with the changes to be made, or the abuses to
be reformed, could mingle its leaven in the operation. The future
situations in which we must expect to be usually placed, do not
present any equivalent security against the danger which is
apprehended. But the greatest objection of all is, that the
decisions which would probably result from such appeals would not
answer the purpose of maintaining the constitutional equilibrium
of the government. We have seen that the tendency of republican
governments is to an aggrandizement of the legislative at the
expense of the other departments. The appeals to the people,
therefore, would usually be made by the executive and judiciary
departments. But whether made by one side or the other, would
each side enjoy equal advantages on the trial? Let us view their
different situations. The members of the executive and judiciary
departments are few in number, and can be personally known to a
small part only of the people. The latter, by the mode of their
appointment, as well as by the nature and permanency of it, are
too far removed from the people to share much in their
prepossessions. The former are generally the objects of jealousy,
and their administration is always liable to be discolored and
rendered unpopular. The members of the legislative department, on
the other hand, are numberous. They are distributed and dwell
among the people at large. Their connections of blood, of
friendship, and of acquaintance embrace a great proportion of the
most influential part of the society. The nature of their public
trust implies a personal influence among the people, and that
they are more immediately the confidential guardians of the
rights and liberties of the people. With these advantages, it can
hardly be supposed that the adverse party would have an equal
chance for a favorable issue. But the legislative party would not
only be able to plead their cause most successfully with the
people. They would probably be constituted themselves the judges.
The same influence which had gained them an election into the
legislature, would gain them a seat in the convention. If this
should not be the case with all, it would probably be the case
with many, and pretty certainly with those leading characters, on
whom every thing depends in such bodies. The convention, in
short, would be composed chiefly of men who had been, who
actually were, or who expected to be, members of the department
whose conduct was arraigned. They would consequently be parties
to the very question to be decided by them. It might, however,
sometimes happen, that appeals would be made under circumstances
less adverse to the executive and judiciary departments. The
usurpations of the legislature might be so flagrant and so
sudden, as to admit of no specious coloring. A strong party
among themselves might take side with the other branches. The
executive power might be in the hands of a peculiar favorite of
the people. In such a posture of things, the public decision
might be less swayed by prepossessions in favor of the
legislative party. But still it could never be expected to turn
on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties
springing out of the question itself. It would be connected with
persons of distinguished character and extensive influence in the
community. It would be pronounced by the very men who had been
agents in, or opponents of, the measures to which the decision
would relate. The PASSIONS, therefore, not the REASON, of the
public would sit in judgment. But it is the reason, alone, of the
public, that ought to control and regulate the government. The
passions ought to be controlled and regulated by the government.
We found in the last paper, that mere declarations in the written
constitution are not sufficient to restrain the several
departments within their legal rights. It appears in this, that
occasional appeals to the people would be neither a proper nor an
effectual provision for that purpose. How far the provisions of a
different nature contained in the plan above quoted might be
adequate, I do not examine. Some of them are unquestionably
founded on sound political principles, and all of them are framed
with singular ingenuity and precision. PUBLIUS.
FEDERALIST No. 50
Periodical Appeals to the People Considered
From the New York Packet. Tuesday, February 5, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
IT MAY be contended, perhaps, that instead of OCCASIONAL appeals
to the people, which are liable to the objections urged against
them, PERIODICAL appeals are the proper and adequate means of
PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION. It
will be attended to, that in the examination of these expedients,
I confine myself to their aptitude for ENFORCING the
Constitution, by keeping the several departments of power within
their due bounds, without particularly considering them as
provisions for ALTERING the Constitution itself. In the first
view, appeals to the people at fixed periods appear to be nearly
as ineligible as appeals on particular occasions as they emerge.
If the periods be separated by short intervals, the measures to
be reviewed and rectified will have been of recent date, and will
be connected with all the circumstances which tend to vitiate and
pervert the result of occasional revisions. If the periods be
distant from each other, the same remark will be applicable to
all recent measures; and in proportion as the remoteness of the
others may favor a dispassionate review of them, this advantage
is inseparable from inconveniences which seem to counterbalance
it. In the first place, a distant prospect of public censure
would be a very feeble restraint on power from those excesses to
which it might be urged by the force of present motives. Is it to
be imagined that a legislative assembly, consisting of a hundred
or two hundred members, eagerly bent on some favorite object, and
breaking through the restraints of the Constitution in pursuit of
it, would be arrested in their career, by considerations drawn
from a censorial revision of their conduct at the future distance
of ten, fifteen, or twenty years? In the next place, the abuses
would often have completed their mischievous effects before the
remedial provision would be applied. And in the last place, where
this might not be the case, they would be of long standing, would
have taken deep root, and would not easily be extirpated. The
scheme of revising the constitution, in order to correct recent
breaches of it, as well as for other purposes, has been actually
tried in one of the States. One of the objects of the Council of
Censors which met in Pennsylvania in 1783 and 1784, was, as we
have seen, to inquire, ``whether the constitution had been
violated, and whether the legislative and executive departments
had encroached upon each other. '' This important and novel
experiment in politics merits, in several points of view, very
particular attention. In some of them it may, perhaps, as a
single experiment, made under circumstances somewhat peculiar, be
thought to be not absolutely conclusive. But as applied to the
case under consideration, it involves some facts, which I venture
to remark, as a complete and satisfactory illustration of the
reasoning which I have employed. First. It appears, from the
names of the gentlemen who composed the council, that some, at
least, of its most active members had also been active and
leading characters in the parties which pre-existed in the State.
Secondly. It appears that the same active and leading members of
the council had been active and influential members of the
legislative and executive branches, within the period to be
reviewed; and even patrons or opponents of the very measures to
be thus brought to the test of the constitution. Two of the
members had been vice-presidents of the State, and several other
members of the executive council, within the seven preceding
years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the
same period. Thirdly. Every page of their proceedings witnesses
the effect of all these circumstances on the temper of their
deliberations. Throughout the continuance of the council, it was
split into two fixed and violent parties. The fact is
acknowledged and lamented by themselves. Had this not been the
case, the face of their proceedings exhibits a proof equally
satisfactory. In all questions, however unimportant in
themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased
observer may infer, without danger of mistake, and at the same
time without meaning to reflect on either party, or any
individuals of either party, that, unfortunately, PASSION, not
REASON, must have presided over their decisions. When men
exercise their reason coolly and freely on a variety of distinct
questions, they inevitably fall into different opinions on some
of them. When they are governed by a common passion, their
opinions, if they are so to be called, will be the same.
Fourthly. It is at least problematical, whether the decisions of
this body do not, in several instances, misconstrue the limits
prescribed for the legislative and executive departments, instead
of reducing and limiting them within their constitutional places.
Fifthly. I have never understood that the decisions of the
council on constitutional questions, whether rightly or
erroneously formed, have had any effect in varying the practice
founded on legislative constructions. It even appears, if I
mistake not, that in one instance the contemporary legislature
denied the constructions of the council, and actually prevailed
in the contest. This censorial body, therefore, proves at the
same time, by its researches, the existence of the disease, and
by its example, the inefficacy of the remedy. This conclusion
cannot be invalidated by alleging that the State in which the
experiment was made was at that crisis, and had been for a long
time before, violently heated and distracted by the rage of
party. Is it to be presumed, that at any future septennial epoch
the same State will be free from parties? Is it to be presumed
that any other State, at the same or any other given period, will
be exempt from them? Such an event ought to be neither presumed
nor desired; because an extinction of parties necessarily implies
either a universal alarm for the public safety, or an absolute
extinction of liberty. Were the precaution taken of excluding
from the assemblies elected by the people, to revise the
preceding administration of the government, all persons who
should have been concerned with the government within the given
period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior
capacities, would in other respects be little better qualified.
Although they might not have been personally concerned in the
administration, and therefore not immediately agents in the
measures to be examined, they would probably have been involved
in the parties connected with these measures, and have been
elected under their auspices. PUBLIUS.
FEDERALIST No. 51
The Structure of the Government Must Furnish the Proper Checks
and Balances Between the Different Departments
From the New York Packet. Friday, February 8, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort, for maintaining
in practice the necessary partition of power among the several
departments, as laid down in the Constitution? The only answer
that can be given is, that as all these exterior provisions are
found to be inadequate, the defect must be supplied, by so
contriving the interior structure of the government as that its
several constituent parts may, by their mutual relations, be the
means of keeping each other in their proper places. Without
presuming to undertake a full development of this important idea,
I will hazard a few general observations, which may perhaps place
it in a clearer light, and enable us to form a more correct
judgment of the principles and structure of the government
planned by the convention. In order to lay a due foundation for
that separate and distinct exercise of the different powers of
government, which to a certain extent is admitted on all hands to
be essential to the preservation of liberty, it is evident that
each department should have a will of its own; and consequently
should be so constituted that the members of each should have as
little agency as possible in the appointment of the members of
the others. Were this principle rigorously adhered to, it would
require that all the appointments for the supreme executive,
legislative, and judiciary magistracies should be drawn from the
same fountain of authority, the people, through channels having
no communication whatever with one another. Perhaps such a plan
of constructing the several departments would be less difficult
in practice than it may in contemplation appear. Some
difficulties, however, and some additional expense would attend
the execution of it. Some deviations, therefore, from the
principle must be admitted. In the constitution of the judiciary
department in particular, it might be inexpedient to insist
rigorously on the principle: first, because peculiar
qualifications being essential in the members, the primary
consideration ought to be to select that mode of choice which
best secures these qualifications; secondly, because the
permanent tenure by which the appointments are held in that
department, must soon destroy all sense of dependence on the
authority conferring them. It is equally evident, that the
members of each department should be as little dependent as
possible on those of the others, for the emoluments annexed to
their offices. Were the executive magistrate, or the judges, not
independent of the legislature in this particular, their
independence in every other would be merely nominal. But the
great security against a gradual concentration of the several
powers in the same department, consists in giving to those who
administer each department the necessary constitutional means and
personal motives to resist encroachments of the others. The
provision for defense must in this, as in all other cases, be
made commensurate to the danger of attack. Ambition must be made
to counteract ambition. The interest of the man must be
connected with the constitutional rights of the place. It may be
a reflection on human nature, that such devices should be
necessary to control the abuses of government. But what is
government itself, but the greatest of all reflections on human
nature? If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control
itself. A dependence on the people is, no doubt, the primary
control on the government; but experience has taught mankind the
necessity of auxiliary precautions. This policy of supplying, by
opposite and rival interests, the defect of better motives, might
be traced through the whole system of human affairs, private as
well as public. We see it particularly displayed in all the
subordinate distributions of power, where the constant aim is to
divide and arrange the several offices in such a manner as that
each may be a check on the other that the private interest of
every individual may be a sentinel over the public rights. These
inventions of prudence cannot be less requisite in the
distribution of the supreme powers of the State. But it is not
possible to give to each department an equal power of
self-defense. In republican government, the legislative
authority necessarily predominates. The remedy for this
inconveniency is to divide the legislature into different
branches; and to render them, by different modes of election and
different principles of action, as little connected with each
other as the nature of their common functions and their common
dependence on the society will admit. It may even be necessary
to guard against dangerous encroachments by still further
precautions. As the weight of the legislative authority requires
that it should be thus divided, the weakness of the executive may
require, on the other hand, that it should be fortified. An
absolute negative on the legislature appears, at first view, to
be the natural defense with which the executive magistrate should
be armed. But perhaps it would be neither altogether safe nor
alone sufficient. On ordinary occasions it might not be exerted
with the requisite firmness, and on extraordinary occasions it
might be perfidiously abused. May not this defect of an absolute
negative be supplied by some qualified connection between this
weaker department and the weaker branch of the stronger
department, by which the latter may be led to support the
constitutional rights of the former, without being too much
detached from the rights of its own department? If the principles
on which these observations are founded be just, as I persuade
myself they are, and they be applied as a criterion to the
several State constitutions, and to the federal Constitution it
will be found that if the latter does not perfectly correspond
with them, the former are infinitely less able to bear such a
test. There are, moreover, two considerations particularly
applicable to the federal system of America, which place that
system in a very interesting point of view. First. In a single
republic, all the power surrendered by the people is submitted to
the administration of a single government; and the usurpations
are guarded against by a division of the government into distinct
and separate departments. In the compound republic of America,
the power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each
subdivided among distinct and separate departments. Hence a
double security arises to the rights of the people. The different
governments will control each other, at the same time that each
will be controlled by itself. Second. It is of great importance
in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society
against the injustice of the other part. Different interests
necessarily exist in different classes of citizens. If a
majority be united by a common interest, the rights of the
minority will be insecure. There are but two methods of
providing against this evil: the one by creating a will in the
community independent of the majority that is, of the society
itself; the other, by comprehending in the society so many
separate descriptions of citizens as will render an unjust
combination of a majority of the whole very improbable, if not
impracticable. The first method prevails in all governments
possessing an hereditary or self-appointed authority. This, at
best, is but a precarious security; because a power independent
of the society may as well espouse the unjust views of the major,
as the rightful interests of the minor party, and may possibly be
turned against both parties. The second method will be
exemplified in the federal republic of the United States. Whilst
all authority in it will be derived from and dependent on the
society, the society itself will be broken into so many parts,
interests, and classes of citizens, that the rights of
individuals, or of the minority, will be in little danger from
interested combinations of the majority. In a free government
the security for civil rights must be the same as that for
religious rights. It consists in the one case in the
multiplicity of interests, and in the other in the multiplicity
of sects. The degree of security in both cases will depend on
the number of interests and sects; and this may be presumed to
depend on the extent of country and number of people comprehended
under the same government. This view of the subject must
particularly recommend a proper federal system to all the sincere
and considerate friends of republican government, since it shows
that in exact proportion as the territory of the Union may be
formed into more circumscribed Confederacies, or States
oppressive combinations of a majority will be facilitated: the
best security, under the republican forms, for the rights of
every class of citizens, will be diminished: and consequently the
stability and independence of some member of the government, the
only other security, must be proportionately increased. Justice
is the end of government. It is the end of civil society. It
ever has been and ever will be pursued until it be obtained, or
until liberty be lost in the pursuit. In a society under the
forms of which the stronger faction can readily unite and oppress
the weaker, anarchy may as truly be said to reign as in a state
of nature, where the weaker individual is not secured against the
violence of the stronger; and as, in the latter state, even the
stronger individuals are prompted, by the uncertainty of their
condition, to submit to a government which may protect the weak
as well as themselves; so, in the former state, will the more
powerful factions or parties be gradnally induced, by a like
motive, to wish for a government which will protect all parties,
the weaker as well as the more powerful. It can be little
doubted that if the State of Rhode Island was separated from the
Confederacy and left to itself, the insecurity of rights under
the popular form of government within such narrow limits would be
displayed by such reiterated oppressions of factious majorities
that some power altogether independent of the people would soon
be called for by the voice of the very factions whose misrule had
proved the necessity of it. In the extended republic of the
United States, and among the great variety of interests, parties,
and sects which it embraces, a coalition of a majority of the
whole society could seldom take place on any other principles
than those of justice and the general good; whilst there being
thus less danger to a minor from the will of a major party, there
must be less pretext, also, to provide for the security of the
former, by introducing into the government a will not dependent
on the latter, or, in other words, a will independent of the
society itself. It is no less certain than it is important,
notwithstanding the contrary opinions which have been
entertained, that the larger the society, provided it lie within
a practical sphere, the more duly capable it will be of
self-government. And happily for the REPUBLICAN CAUSE, the
practicable sphere may be carried to a very great extent, by a
judicious modification and mixture of the FEDERAL PRINCIPLE.
PUBLIUS.
FEDERALIST No. 52
The House of Representatives
From the New York Packet. Friday, February 8, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
FROM the more general inquiries pursued in the four last papers,
I pass on to a more particular examination of the several parts
of the government. I shall begin with the House of
Representatives. The first view to be taken of this part of the
government relates to the qualifications of the electors and the
elected. Those of the former are to be the same with those of the
electors of the most numerous branch of the State legislatures.
The definition of the right of suffrage is very justly regarded
as a fundamental article of republican government. It was
incumbent on the convention, therefore, to define and establish
this right in the Constitution. To have left it open for the
occasional regulation of the Congress, would have been improper
for the reason just mentioned. To have submitted it to the
legislative discretion of the States, would have been improper
for the same reason; and for the additional reason that it would
have rendered too dependent on the State governments that branch
of the federal government which ought to be dependent on the
people alone. To have reduced the different qualifications in the
different States to one uniform rule, would probably have been as
dissatisfactory to some of the States as it would have been
difficult to the convention. The provision made by the convention
appears, therefore, to be the best that lay within their option.
It must be satisfactory to every State, because it is conformable
to the standard already established, or which may be established,
by the State itself. It will be safe to the United States,
because, being fixed by the State constitutions, it is not
alterable by the State governments, and it cannot be feared that
the people of the States will alter this part of their
constitutions in such a manner as to abridge the rights secured
to them by the federal Constitution. The qualifications of the
elected, being less carefully and properly defined by the State
constitutions, and being at the same time more susceptible of
uniformity, have been very properly considered and regulated by
the convention. A representative of the United States must be of
the age of twenty-five years; must have been seven years a
citizen of the United States; must, at the time of his election,
be an inhabitant of the State he is to represent; and, during the
time of his service, must be in no office under the United
States. Under these reasonable limitations, the door of this part
of the federal government is open to merit of every description,
whether native or adoptive, whether young or old, and without
regard to poverty or wealth, or to any particular profession of
religious faith. The term for which the representatives are to be
elected falls under a second view which may be taken of this
branch. In order to decide on the propriety of this article, two
questions must be considered: first, whether biennial elections
will, in this case, be safe; secondly, whether they be necessary
or useful. First. As it is essential to liberty that the
government in general should have a common interest with the
people, so it is particularly essential that the branch of it
under consideration should have an immediate dependence on, and
an intimate sympathy with, the people. Frequent elections are
unquestionably the only policy by which this dependence and
sympathy can be effectually secured. But what particular degree
of frequency may be absolutely necessary for the purpose, does
not appear to be susceptible of any precise calculation, and must
depend on a variety of circumstances with which it may be
connected. Let us consult experience, the guide that ought always
to be followed whenever it can be found. The scheme of
representation, as a substitute for a meeting of the citizens in
person, being at most but very imperfectly known to ancient
polity, it is in more modern times only that we are to expect
instructive examples. And even here, in order to avoid a research
too vague and diffusive, it will be proper to confine ourselves
to the few examples which are best known, and which bear the
greatest analogy to our particular case. The first to which this
character ought to be applied, is the House of Commons in Great
Britain. The history of this branch of the English Constitution,
anterior to the date of Magna Charta, is too obscure to yield
instruction. The very existence of it has been made a question
among political antiquaries. The earliest records of subsequent
date prove that parliaments were to SIT only every year; not that
they were to be ELECTED every year. And even these annual
sessions were left so much at the discretion of the monarch,
that, under various pretexts, very long and dangerous
intermissions were often contrived by royal ambition. To remedy
this grievance, it was provided by a statute in the reign of
Charles II. , that the intermissions should not be protracted
beyond a period of three years. On the accession of William III.
, when a revolution took place in the government, the subject was
still more seriously resumed, and it was declared to be among the
fundamental rights of the people that parliaments ought to be
held FREQUENTLY. By another statute, which passed a few years
later in the same reign, the term ``frequently,'' which had
alluded to the triennial period settled in the time of Charles
II. , is reduced to a precise meaning, it being expressly enacted
that a new parliament shall be called within three years after
the termination of the former. The last change, from three to
seven years, is well known to have been introduced pretty early
in the present century, under on alarm for the Hanoverian
succession. From these facts it appears that the greatest
frequency of elections which has been deemed necessary in that
kingdom, for binding the representatives to their constituents,
does not exceed a triennial return of them. And if we may argue
from the degree of liberty retained even under septennial
elections, and all the other vicious ingredients in the
parliamentary constitution, we cannot doubt that a reduction of
the period from seven to three years, with the other necessary
reforms, would so far extend the influence of the people over
their representatives as to satisfy us that biennial elections,
under the federal system, cannot possibly be dangerous to the
requisite dependence of the House of Representatives on their
constituents. Elections in Ireland, till of late, were regulated
entirely by the discretion of the crown, and were seldom
repeated, except on the accession of a new prince, or some other
contingent event. The parliament which commenced with George II.
was continued throughout his whole reign, a period of about
thirty-five years. The only dependence of the representatives on
the people consisted in the right of the latter to supply
occasional vacancies by the election of new members, and in the
chance of some event which might produce a general new election.
The ability also of the Irish parliament to maintain the rights
of their constituents, so far as the disposition might exist, was
extremely shackled by the control of the crown over the subjects
of their deliberation. Of late these shackles, if I mistake not,
have been broken; and octennial parliaments have besides been
established. What effect may be produced by this partial reform,
must be left to further experience. The example of Ireland, from
this view of it, can throw but little light on the subject. As
far as we can draw any conclusion from it, it must be that if the
people of that country have been able under all these
disadvantages to retain any liberty whatever, the advantage of
biennial elections would secure to them every degree of liberty,
which might depend on a due connection between their
representatives and themselves. Let us bring our inquiries nearer
home. The example of these States, when British colonies, claims
particular attention, at the same time that it is so well known
as to require little to be said on it. The principle of
representation, in one branch of the legislature at least, was
established in all of them. But the periods of election were
different. They varied from one to seven years. Have we any
reason to infer, from the spirit and conduct of the
representatives of the people, prior to the Revolution, that
biennial elections would have been dangerous to the public
liberties? The spirit which everywhere displayed itself at the
commencement of the struggle, and which vanquished the obstacles
to independence, is the best of proofs that a sufficient portion
of liberty had been everywhere enjoyed to inspire both a sense of
its worth and a zeal for its proper enlargement This remark holds
good, as well with regard to the then colonies whose elections
were least frequent, as to those whose elections were most
frequent Virginia was the colony which stood first in resisting
the parliamentary usurpations of Great Britain; it was the first
also in espousing, by public act, the resolution of independence.
In Virginia, nevertheless, if I have not been misinformed,
elections under the former government were septennial. This
particular example is brought into view, not as a proof of any
peculiar merit, for the priority in those instances was probably
accidental; and still less of any advantage in SEPTENNIAL
elections, for when compared with a greater frequency they are
inadmissible; but merely as a proof, and I conceive it to be a
very substantial proof, that the liberties of the people can be
in no danger from BIENNIAL elections. The conclusion resulting
from these examples will be not a little strengthened by
recollecting three circumstances. The first is, that the federal
legislature will possess a part only of that supreme legislative
authority which is vested completely in the British Parliament;
and which, with a few exceptions, was exercised by the colonial
assemblies and the Irish legislature. It is a received and
well-founded maxim, that where no other circumstances affect the
case, the greater the power is, the shorter ought to be its
duration; and, conversely, the smaller the power, the more safely
may its duration be protracted. In the second place, it has, on
another occasion, been shown that the federal legislature will
not only be restrained by its dependence on its people, as other
legislative bodies are, but that it will be, moreover, watched
and controlled by the several collateral legislatures, which
other legislative bodies are not. And in the third place, no
comparison can be made between the means that will be possessed
by the more permanent branches of the federal government for
seducing, if they should be disposed to seduce, the House of
Representatives from their duty to the people, and the means of
influence over the popular branch possessed by the other branches
of the government above cited. With less power, therefore, to
abuse, the federal representatives can be less tempted on one
side, and will be doubly watched on the other. PUBLIUS.
FEDERALIST No. 53
The Same Subject Continued(The House of Representatives)
From the New York Packet. Tuesday, February 12, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
I SHALL here, perhaps, be reminded of a current observation,
``that where annual elections end, tyranny begins. '' If it be
true, as has often been remarked, that sayings which become
proverbial are generally founded in reason, it is not less true,
that when once established, they are often applied to cases to
which the reason of them does not extend. I need not look for a
proof beyond the case before us. What is the reason on which this
proverbial observation is founded? No man will subject himself to
the ridicule of pretending that any natural connection subsists
between the sun or the seasons, and the period within which human
virtue can bear the temptations of power. Happily for mankind,
liberty is not, in this respect, confined to any single point of
time; but lies within extremes, which afford sufficient latitude
for all the variations which may be required by the various
situations and circumstances of civil society. The election of
magistrates might be, if it were found expedient, as in some
instances it actually has been, daily, weekly, or monthly, as
well as annual; and if circumstances may require a deviation from
the rule on one side, why not also on the other side? Turning our
attention to the periods established among ourselves, for the
election of the most numerous branches of the State legislatures,
we find them by no means coinciding any more in this instance,
than in the elections of other civil magistrates. In Connecticut
and Rhode Island, the periods are half-yearly. In the other
States, South Carolina excepted, they are annual. In South
Carolina they are biennial as is proposed in the federal
government. Here is a difference, as four to one, between the
longest and shortest periods; and yet it would be not easy to
show, that Connecticut or Rhode Island is better governed, or
enjoys a greater share of rational liberty, than South Carolina;
or that either the one or the other of these States is
distinguished in these respects, and by these causes, from the
States whose elections are different from both. In searching for
the grounds of this doctrine, I can discover but one, and that is
wholly inapplicable to our case. The important distinction so
well understood in America, between a Constitution established by
the people and unalterable by the government, and a law
established by the government and alterable by the government,
seems to have been little understood and less observed in any
other country. Wherever the supreme power of legislation has
resided, has been supposed to reside also a full power to change
the form of the government. Even in Great Britain, where the
principles of political and civil liberty have been most
discussed, and where we hear most of the rights of the
Constitution, it is maintained that the authority of the
Parliament is transcendent and uncontrollable, as well with
regard to the Constitution, as the ordinary objects of
legislative provision. They have accordingly, in several
instances, actually changed, by legislative acts, some of the
most fundamental articles of the government. They have in
particular, on several occasions, changed the period of election;
and, on the last occasion, not only introduced septennial in
place of triennial elections, but by the same act, continued
themselves in place four years beyond the term for which they
were elected by the people. An attention to these dangerous
practices has produced a very natural alarm in the votaries of
free government, of which frequency of elections is the
corner-stone; and has led them to seek for some security to
liberty, against the danger to which it is exposed. Where no
Constitution, paramount to the government, either existed or
could be obtained, no constitutional security, similar to that
established in the United States, was to be attempted. Some
other security, therefore, was to be sought for; and what better
security would the case admit, than that of selecting and
appealing to some simple and familiar portion of time, as a
standard for measuring the danger of innovations, for fixing the
national sentiment, and for uniting the patriotic exertions? The
most simple and familiar portion of time, applicable to the
subject was that of a year; and hence the doctrine has been
inculcated by a laudable zeal, to erect some barrier against the
gradual innovations of an unlimited government, that the advance
towards tyranny was to be calculated by the distance of departure
from the fixed point of annual elections. But what necessity can
there be of applying this expedient to a government limited, as
the federal government will be, by the authority of a paramount
Constitution? Or who will pretend that the liberties of the
people of America will not be more secure under biennial
elections, unalterably fixed by such a Constitution, than those
of any other nation would be, where elections were annual, or
even more frequent, but subject to alterations by the ordinary
power of the government? The second question stated is, whether
biennial elections be necessary or useful. The propriety of
answering this question in the affirmative will appear from
several very obvious considerations.
No man can be a
competent legislator who does not add to an upright intention and
a sound judgment a certain degree of knowledge of the subjects on
which he is to legislate. A part of this knowledge may be
acquired by means of information which lie within the compass of
men in private as well as public stations. Another part can only
be attained, or at least thoroughly attained, by actual
experience in the station which requires the use of it. The
period of service, ought, therefore, in all such cases, to bear
some proportion to the extent of practical knowledge requisite to
the due performance of the service. The period of legislative
service established in most of the States for the more numerous
branch is, as we have seen, one year. The question then may be
put into this simple form: does the period of two years bear no
greater proportion to the knowledge requisite for federal
legislation than one year does to the knowledge requisite for
State legislation? The very statement of the question, in this
form, suggests the answer that ought to be given to it. In a
single State, the requisite knowledge relates to the existing
laws which are uniform throughout the State, and with which all
the citizens are more or less conversant; and to the general
affairs of the State, which lie within a small compass, are not
very diversified, and occupy much of the attention and
conversation of every class of people. The great theatre of the
United States presents a very different scene. The laws are so
far from being uniform, that they vary in every State; whilst the
public affairs of the Union are spread throughout a very
extensive region, and are extremely diversified by t e local
affairs connected with them, and can with difficulty be correctly
learnt in any other place than in the central councils to which a
knowledge of them will be brought by the representatives of every
part of the empire. Yet some knowledge of the affairs, and even
of the laws, of all the States, ought to be possessed by the
members from each of the States. How can foreign trade be
properly regulated by uniform laws, without some acquaintance
with the commerce, the ports, the usages, and the regulatious of
the different States? How can the trade between the different
States be duly regulated, without some knowledge of their
relative situations in these and other respects? How can taxes
be judiciously imposed and effectually collected, if they be not
accommodated to the different laws and local circumstances
relating to these objects in the different States? How can
uniform regulations for the militia be duly provided, without a
similar knowledge of many internal circumstances by which the
States are distinguished from each other? These are the
principal objects of federal legislation, and suggest most
forcibly the extensive information which the representatives
ought to acquire. The other interior objects will require a
proportional degree of information with regard to them. It is
true that all these difficulties will, by degrees, be very much
diminished. The most laborious task will be the proper
inauguration of the government and the primeval formation of a
federal code. Improvements on the first draughts will every year
become both easier and fewer. Past transactions of the
government will be a ready and accurate source of information to
new members. The affairs of the Union will become more and more
objects of curiosity and conversation among the citizens at
large. And the increased intercourse among those of different
States will contribute not a little to diffuse a mutual knowledge
of their affairs, as this again will contribute to a general
assimilation of their manners and laws. But with all these
abatements, the business of federal legislation must continue so
far to exceed, both in novelty and difficulty, the legislative
business of a single State, as to justify the longer period of
service assigned to those who are to transact it. A branch of
knowledge which belongs to the acquirements of a federal
representative, and which has not been mentioned is that of
foreign affairs. In regulating our own commerce he ought to be
not only acquainted with the treaties between the United States
and other nations, but also with the commercial policy and laws
of other nations. He ought not to be altogether ignorant of the
law of nations; for that, as far as it is a proper object of
municipal legislation, is submitted to the federal government.
And although the House of Representatives is not immediately to
participate in foreign negotiations and arrangements, yet from
the necessary connection between the several branches of public
affairs, those particular branches will frequently deserve
attention in the ordinary course of legislation, and will
sometimes demand particular legislative sanction and
co-operation. Some portion of this knowledge may, no doubt, be
acquired in a man's closet; but some of it also can only be
derived from the public sources of information; and all of it
will be acquired to best effect by a practical attention to the
subject during the period of actual service in the legislature.
There are other considerations, of less importance, perhaps, but
which are not unworthy of notice. The distance which many of the
representatives will be obliged to travel, and the arrangements
rendered necessary by that circumstance, might be much more
serious objections with fit men to this service, if limited to a
single year, than if extended to two years. No argument can be
drawn on this subject, from the case of the delegates to the
existing Congress. They are elected annually, it is true; but
their re-election is considered by the legislative assemblies
almost as a matter of course. The election of the representatives
by the people would not be governed by the same principle. A few
of the members, as happens in all such assemblies, will possess
superior talents; will, by frequent reelections, become members
of long standing; will be thoroughly masters of the public
business, and perhaps not unwilling to avail themselves of those
advantages. The greater the proportion of new members, and the
less the information of the bulk of the members the more apt will
they be to fall into the snares that may be laid for them. This
remark is no less applicable to the relation which will subsist
between the House of Representatives and the Senate. It is an
inconvenience mingled with the advantages of our frequent
elections even in single States, where they are large, and hold
but one legislative session in a year, that spurious elections
cannot be investigated and annulled in time for the decision to
have its due effect. If a return can be obtained, no matter by
what unlawful means, the irregular member, who takes his seat of
course, is sure of holding it a sufficient time to answer his
purposes. Hence, a very pernicious encouragement is given to the
use of unlawful means, for obtaining irregular returns. Were
elections for the federal legislature to be annual, this practice
might become a very serious abuse, particularly in the more
distant States. Each house is, as it necessarily must be, the
judge of the elections, qualifications, and returns of its
members; and whatever improvements may be suggested by
experience, for simplifying and accelerating the process in
disputed cases, so great a portion of a year would unavoidably
elapse, before an illegitimate member could be dispossessed of
his seat, that the prospect of such an event would be little
check to unfair and illicit means of obtaining a seat. All these
considerations taken together warrant us in affirming, that
biennial elections will be as useful to the affairs of the public
as we have seen that they will be safe to the liberty of the
people. PUBLIUS.
FEDERALIST No. 54
The Apportionment of Members Among the States
From the New York Packet. Tuesday, February 12, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
THE next view which I shall take of the House of Representatives
relates to the appointment of its members to the several States
which is to be determined by the same rule with that of direct
taxes.
It is not contended that the number of people in each
State ought not to be the standard for regulating the proportion
of those who are to represent the people of each State. The
establishment of the same rule for the appointment of taxes, will
probably be as little contested; though the rule itself in this
case, is by no means founded on the same principle. In the former
case, the rule is understood to refer to the personal rights of
the people, with which it has a natural and universal connection.
In the latter, it has reference to the proportion of wealth, of
which it is in no case a precise measure, and in ordinary cases a
very unfit one. But notwithstanding the imperfection of the rule
as applied to the relative wealth and contributions of the
States, it is evidently the least objectionable among the
practicable rules, and had too recently obtained the general
sanction of America, not to have found a ready preference with
the convention. All this is admitted, it will perhaps be said;
but does it follow, from an admission of numbers for the measure
of representation, or of slaves combined with free citizens as a
ratio of taxation, that slaves ought to be included in the
numerical rule of representation? Slaves are considered as
property, not as persons. They ought therefore to be comprehended
in estimates of taxation which are founded on property, and to be
excluded from representation which is regulated by a census of
persons. This is the objection, as I understand it, stated in its
full force. I shall be equally candid in stating the reasoning
which may be offered on the opposite side. ``We subscribe to the
doctrine,'' might one of our Southern brethren observe, ``that
representation relates more immediately to persons, and taxation
more immediately to property, and we join in the application of
this distinction to the case of our slaves. But we must deny the
fact, that slaves are considered merely as property, and in no
respect whatever as persons. The true state of the case is, that
they partake of both these qualities: being considered by our
laws, in some respects, as persons, and in other respects as
property. In being compelled to labor, not for himself, but for
a master; in being vendible by one master to another master; and
in being subject at all times to be restrained in his liberty and
chastised in his body, by the capricious will of another, the
slave may appear to be degraded from the human rank, and classed
with those irrational animals which fall under the legal
denomination of property. In being protected, on the other hand,
in his life and in his limbs, against the violence of all
others, even the master of his labor and his liberty; and in
being punishable himself for all violence committed against
others, the slave is no less evidently regarded by the law as a
member of the society, not as a part of the irrational creation;
as a moral person, not as a mere article of property. The
federal Constitution, therefore, decides with great propriety on
the case of our slaves, when it views them in the mixed character
of persons and of property. This is in fact their true
character. It is the character bestowed on them by the laws
under which they live; and it will not be denied, that these are
the proper criterion; because it is only under the pretext that
the laws have transformed the negroes into subjects of property,
that a place is disputed them in the computation of numbers; and
it is admitted, that if the laws were to restore the rights which
have been taken away, the negroes could no longer be refused an
equal share of representation with the other inhabitants. ``This
question may be placed in another light. It is agreed on all
sides, that numbers are the best scale of wealth and taxation, as
they are the only proper scale of representation. Would the
convention have been impartial or consistent, if they had
rejected the slaves from the list of inhabitants, when the shares
of representation were to be calculated, and inserted them on the
lists when the tariff of contributions was to be adjusted? Could
it be reasonably expected, that the Southern States would concur
in a system, which considered their slaves in some degree as men,
when burdens were to be imposed, but refused to consider them in
the same light, when advantages were to be conferred? Might not
some surprise also be expressed, that those who reproach the
Southern States with the barbarous policy of considering as
property a part of their human brethren, should themselves
contend, that the government to which all the States are to be
parties, ought to consider this unfortunate race more completely
in the unnatural light of property, than the very laws of which
they complain? ``It may be replied, perhaps, that slaves are not
included in the estimate of representatives in any of the States
possessing them. They neither vote themselves nor increase the
votes of their masters. Upon what principle, then, ought they to
be taken into the federal estimate of representation? In
rejecting them altogether, the Constitution would, in this
respect, have followed the very laws which have been appealed to
as the proper guide. ``This objection is repelled by a single
abservation. It is a fundamental principle of the proposed
Constitution, that as the aggregate number of representatives
allotted to the several States is to be determined by a federal
rule, founded on the aggregate number of inhabitants, so the
right of choosing this allotted number in each State is to be
exercised by such part of the inhabitants as the State itself may
designate. The qualifications on which the right of suffrage
depend are not, perhaps, the same in any two States. In some of
the States the difference is very material. In every State, a
certain proportion of inhabitants are deprived of this right by
the constitution of the State, who will be included in the census
by which the federal Constitution apportions the representatives.
In this point of view the Southern States might retort the
complaint, by insisting that the principle laid down by the
convention required that no regard should be had to the policy of
particular States towards their own inhabitants; and
consequently, that the slaves, as inhabitants, should have been
admitted into the census according to their full number, in like
manner with other inhabitants, who, by the policy of other
States, are not admitted to all the rights of citizens. A
rigorous adherence, however, to this principle, is waived by
those who would be gainers by it. All that they ask is that
equal moderation be shown on the other side. Let the case of the
slaves be considered, as it is in truth, a peculiar one. Let the
compromising expedient of the Constitution be mutually adopted,
which regards them as inhabitants, but as debased by servitude
below the equal level of free inhabitants, which regards the
SLAVE as divested of two fifths of the MAN. ``After all, may not
another ground be taken on which this article of the
Constitution will admit of a still more ready defense? We have
hitherto proceeded on the idea that representation related to
persons only, and not at all to property. But is it a just idea?
Government is instituted no less for protection of the property,
than of the persons, of individuals. The one as well as the
other, therefore, may be considered as represented by those who
are charged with the government. Upon this principle it is, that
in several of the States, and particularly in the State of New
York, one branch of the government is intended more especially to
be the guardian of property, and is accordingly elected by that
part of the society which is most interested in this object of
government. In the federal Constitution, this policy does not
prevail. The rights of property are committed into the same hands
with the personal rights. Some attention ought, therefore, to be
paid to property in the choice of those hands. ``For another
reason, the votes allowed in the federal legislature to the
people of each State, ought to bear some proportion to the
comparative wealth of the States. States have not, like
individuals, an influence over each other, arising from superior
advantages of fortune. If the law allows an opulent citizen but a
single vote in the choice of his representative, the respect and
consequence which he derives from his fortunate situation very
frequently guide the votes of others to the objects of his
choice; and through this imperceptible channel the rights of
property are conveyed into the public representation. A State
possesses no such influence over other States. It is not probable
that the richest State in the Confederacy will ever influence the
choice of a single representative in any other State. Nor will
the representatives of the larger and richer States possess any
other advantage in the federal legislature, over the
representatives of other States, than what may result from their
superior number alone. As far, therefore, as their superior
wealth and weight may justly entitle them to any advantage, it
ought to be secured to them by a superior share of
representation. The new Constitution is, in this respect,
materially different from the existing Confederation, as well as
from that of the United Netherlands, and other similar
confederacies. In each of the latter, the efficacy of the
federal resolutions depends on the subsequent and voluntary
resolutions of the states composing the union. Hence the states,
though possessing an equal vote in the public councils, have an
unequal influence, corresponding with the unequal importance of
these subsequent and voluntary resolutions. Under the proposed
Constitution, the federal acts will take effect without the
necessary intervention of the individual States. They will depend
merely on the majority of votes in the federal legislature, and
consequently each vote, whether proceeding from a larger or
smaller State, or a State more or less wealthy or powerful, will
have an equal weight and efficacy: in the same manner as the
votes individually given in a State legislature, by the
representatives of unequal counties or other districts, have
each a precise equality of value and effect; or if there be any
difference in the case, it proceeds from the difference in the
personal character of the individual representative, rather than
from any regard to the extent of the district from which he
comes. ''Such is the reasoning which an advocate for the
Southern interests might employ on this subject; and although it
may appear to be a little strained in some points, yet, on the
whole, I must confess that it fully reconciles me to the scale of
representation which the convention have established. In one
respect, the establishment of a common measure for representation
and taxation will have a very salutary effect. As the accuracy
of the census to be obtained by the Congress will necessarily
depend, in a considerable degree on the disposition, if not on
the co-operation, of the States, it is of great importance that
the States should feel as little bias as possible, to swell or to
reduce the amount of their numbers. Were their share of
representation alone to be governed by this rule, they would have
an interest in exaggerating their inhabitants. Were the rule to
decide their share of taxation alone, a contrary temptation would
prevail. By extending the rule to both objects, the States will
have opposite interests, which will control and balance each
other, and produce the requisite impartiality. PUBLIUS.
FEDERALIST No. 55
The Total Number of the House of Representatives
From the New York Packet. Friday, February 15, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
THE number of which the House of Representatives is to consist,
forms another and a very interesting point of view, under which
this branch of the federal legislature may be contemplated.
Scarce any article, indeed, in the whole Constitution seems to be
rendered more worthy of attention, by the weight of character and
the apparent force of argument with which it has been assailed.
The charges exhibited against it are, first, that so small a
number of representatives will be an unsafe depositary of the
public interests; secondly, that they will not possess a proper
knowledge of the local circumstances of their numerous
constituents; thirdly, that they will be taken from that class of
citizens which will sympathize least with the feelings of the
mass of the people, and be most likely to aim at a permanent
elevation of the few on the depression of the many; fourthly,
that defective as the number will be in the first instance, it
will be more and more disproportionate, by the increase of the
people, and the obstacles which will prevent a correspondent
increase of the representatives. In general it may be remarked on
this subject, that no political problem is less susceptible of a
precise solution than that which relates to the number most
convenient for a representative legislature; nor is there any
point on which the policy of the several States is more at
variance, whether we compare their legislative assemblies
directly with each other, or consider the proportions which they
respectively bear to the number of their constituents. Passing
over the difference between the smallest and largest States, as
Delaware, whose most numerous branch consists of twenty-one
representatives, and Massachusetts, where it amounts to between
three and four hundred, a very considerable difference is
observable among States nearly equal in population. The number of
representatives in Pennsylvania is not more than one fifth of
that in the State last mentioned. New York, whose population is
to that of South Carolina as six to five, has little more than
one third of the number of representatives. As great a disparity
prevails between the States of Georgia and Delaware or Rhode
Island. In Pennsylvania, the representatives do not bear a
greater proportion to their constituents than of one for every
four or five thousand. In Rhode Island, they bear a proportion of
at least one for every thousand. And according to the
constitution of Georgia, the proportion may be carried to one to
every ten electors; and must unavoidably far exceed the
proportion in any of the other States. Another general remark to
be made is, that the ratio between the representatives and the
people ought not to be the same where the latter are very
numerous as where they are very few. Were the representatives in
Virginia to be regulated by the standard in Rhode Island, they
would, at this time, amount to between four and five hundred; and
twenty or thirty years hence, to a thousand. On the other hand,
the ratio of Pennsylvania, if applied to the State of Delaware,
would reduce the representative assembly of the latter to seven
or eight members. Nothing can be more fallacious than to found
our political calculations on arithmetical principles. Sixty or
seventy men may be more properly trusted with a given degree of
power than six or seven. But it does not follow that six or seven
hundred would be proportionably a better depositary. And if we
carry on the supposition to six or seven thousand, the whole
reasoning ought to be reversed. The truth is, that in all cases a
certain number at least seems to be necessary to secure the
benefits of free consultation and discussion, and to guard
against too easy a combination for improper purposes; as, on the
other hand, the number ought at most to be kept within a certain
limit, in order to avoid the confusion and intemperance of a
multitude. In all very numerous assemblies, of whatever character
composed, passion never fails to wrest the sceptre from reason.
Had every Athenian citizen been a Socrates, every Athenian
assembly would still have been a mob.
It is necessary also to
recollect here the observations which were applied to the case of
biennial elections. For the same reason that the limited powers
of the Congress, and the control of the State legislatures,
justify less frequent elections than the public safely might
otherwise require, the members of the Congress need be less
numerous than if they possessed the whole power of legislation,
and were under no other than the ordinary restraints of other
legislative bodies. With these general ideas in our mind, let us
weigh the objections which have been stated against the number of
members proposed for the House of Representatives. It is said, in
the first place, that so small a number cannot be safely trusted
with so much power. The number of which this branch of the
legislature is to consist, at the outset of the government, will
be sixtyfive. Within three years a census is to be taken, when
the number may be augmented to one for every thirty thousand
inhabitants; and within every successive period of ten years the
census is to be renewed, and augmentations may continue to be
made under the above limitation. It will not be thought an
extravagant conjecture that the first census will, at the rate of
one for every thirty thousand, raise the number of
representatives to at least one hundred. Estimating the negroes
in the proportion of three fifths, it can scarcely be doubted
that the population of the United States will by that time, if it
does not already, amount to three millions. At the expiration of
twenty-five years, according to the computed rate of increase,
the number of representatives will amount to two hundred, and of
fifty years, to four hundred. This is a number which, I presume,
will put an end to all fears arising from the smallness of the
body. I take for granted here what I shall, in answering the
fourth objection, hereafter show, that the number of
representatives will be augmented from time to time in the
manner provided by the Constitution. On a contrary supposition, I
should admit the objection to have very great weight indeed. The
true question to be decided then is, whether the smallness of the
number, as a temporary regulation, be dangerous to the public
liberty? Whether sixty-five members for a few years, and a
hundred or two hundred for a few more, be a safe depositary for a
limited and well-guarded power of legislating for the United
States? I must own that I could not give a negative answer to
this question, without first obliterating every impression which
I have received with regard to the present genius of the people
of America, the spirit which actuates the State legislatures, and
the principles which are incorporated with the political
character of every class of citizens I am unable to conceive that
the people of America, in their present temper, or under any
circumstances which can speedily happen, will choose, and every
second year repeat the choice of, sixty-five or a hundred men who
would be disposed to form and pursue a scheme of tyranny or
treachery. I am unable to conceive that the State legislatures,
which must feel so many motives to watch, and which possess so
many means of counteracting, the federal legislature, would fail
either to detect or to defeat a conspiracy of the latter against
the liberties of their common constituents. I am equally unable
to conceive that there are at this time, or can be in any short
time, in the United States, any sixty-five or a hundred men
capable of recommending themselves to the choice of the people at
large, who would either desire or dare, within the short space of
two years, to betray the solemn trust committed to them. What
change of circumstances, time, and a fuller population of our
country may produce, requires a prophetic spirit to declare,
which makes no part of my pretensions. But judging from the
circumstances now before us, and from the probable state of them
within a moderate period of time, I must pronounce that the
liberties of America cannot be unsafe in the number of hands
proposed by the federal Constitution. From what quarter can the
danger proceed? Are we afraid of foreign gold? If foreign gold
could so easily corrupt our federal rulers and enable them to
ensnare and betray their constituents, how has it happened that
we are at this time a free and independent nation? The Congress
which conducted us through the Revolution was a less numerous
body than their successors will be; they were not chosen by, nor
responsible to, their fellowcitizens at large; though appointed
from year to year, and recallable at pleasure, they were
generally continued for three years, and prior to the
ratification of the federal articles, for a still longer term.
They held their consultations always under the veil of secrecy;
they had the sole transaction of our affairs with foreign
nations; through the whole course of the war they had the fate of
their country more in their hands than it is to be hoped will
ever be the case with our future representatives; and from the
greatness of the prize at stake, and the eagerness of the party
which lost it, it may well be supposed that the use of other
means than force would not have been scrupled. Yet we know by
happy experience that the public trust was not betrayed; nor has
the purity of our public councils in this particular ever
suffered, even from the whispers of calumny. Is the danger
apprehended from the other branches of the federal government?
But where are the means to be found by the President, or the
Senate, or both? Their emoluments of office, it is to be
presumed, will not, and without a previous corruption of the
House of Representatives cannot, more than suffice for very
different purposes; their private fortunes, as they must allbe
American citizens, cannot possibly be sources of danger. The
only means, then, which they can possess, will be in the
dispensation of appointments. Is it here that suspicion rests
her charge? Sometimes we are told that this fund of corruption
is to be exhausted by the President in subduing the virtue of the
Senate. Now, the fidelity of the other House is to be the
victim. The improbability of such a mercenary and perfidious
combination of the several members of government, standing on as
different foundations as republican principles will well admit,
and at the same time accountable to the society over which they
are placed, ought alone to quiet this apprehension. But,
fortunately, the Constitution has provided a still further
safeguard. The members of the Congress are rendered ineligible
to any civil offices that may be created, or of which the
emoluments may be increased, during the term of their election.
No offices therefore can be dealt out to the existing members but
such as may become vacant by ordinary casualties: and to suppose
that these would be sufficient to purchase the guardians of the
people, selected by the people themselves, is to renounce every
rule by which events ought to be calculated, and to substitute an
indiscriminate and unbounded jealousy, with which all reasoning
must be vain. The sincere friends of liberty, who give
themselves up to the extravagancies of this passion, are not
aware of the injury they do their own cause. As there is a
degree of depravity in mankind which requires a certain degree of
circumspection and distrust, so there are other qualities in
human nature which justify a certain portion of esteem and
confidence. Republican government presupposes the existence of
these qualities in a higher degree than any other form. Were the
pictures which have been drawn by the political jealousy of some
among us faithful likenesses of the human character, the
inference would be, that there is not sufficient virtue among men
for self-government; and that nothing less than the chains of
despotism can restrain them from destroying and devouring one
another. PUBLIUS.
FEDERALIST No. 56
The Same Subject Continued(The Total Number of the House of
Representatives)
From the New York Packet. Tuesday, February 19, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
THE SECOND charge against the House of Representatives is, that
it will be too small to possess a due knowledge of the interests
of its constituents. As this objection evidently proceeds from a
comparison of the proposed number of representatives with the
great extent of the United States, the number of their
inhabitants, and the diversity of their interests, without taking
into view at the same time the circumstances which will
distinguish the Congress from other legislative bodies, the best
answer that can be given to it will be a brief explanation of
these peculiarities. It is a sound and important principle that
the representative ought to be acquainted with the interests and
circumstances of his constituents. But this principle can extend
no further than to those circumstances and interests to which the
authority and care of the representative relate. An ignorance of
a variety of minute and particular objects, which do not lie
within the compass of legislation, is consistent with every
attribute necessary to a due performance of the legislative
trust. In determining the extent of information required in the
exercise of a particular authority, recourse then must be had to
the objects within the purview of that authority. What are to be
the objects of federal legislation? Those which are of most
importance, and which seem most to require local knowledge, are
commerce, taxation, and the militia. A proper regulation of
commerce requires much information, as has been elsewhere
remarked; but as far as this information relates to the laws and
local situation of each individual State, a very few
representatives would be very sufficient vehicles of it to the
federal councils. Taxation will consist, in a great measure, of
duties which will be involved in the regulation of commerce. So
far the preceding remark is applicable to this object. As far as
it may consist of internal collections, a more diffusive
knowledge of the circumstances of the State may be necessary. But
will not this also be possessed in sufficient degree by a very
few intelligent men, diffusively elected within the State? Divide
the largest State into ten or twelve districts, and it will be
found that there will be no peculiar local interests in either,
which will not be within the knowledge of the representative of
the district. Besides this source of information, the laws of the
State, framed by representatives from every part of it, will be
almost of themselves a sufficient guide. In every State there
have been made, and must continue to be made, regulations on this
subject which will, in many cases, leave little more to be done
by the federal legislature, than to review the different laws,
and reduce them in one general act. A skillful individual in his
closet with all the local codes before him, might compile a law
on some subjects of taxation for the whole union, without any aid
from oral information, and it may be expected that whenever
internal taxes may be necessary, and particularly in cases
requiring uniformity throughout the States, the more simple
objects will be preferred. To be fully sensible of the facility
which will be given to this branch of federal legislation by the
assistance of the State codes, we need only suppose for a moment
that this or any other State were divided into a number of parts,
each having and exercising within itself a power of local
legislation. Is it not evident that a degree of local information
and preparatory labor would be found in the several volumes of
their proceedings, which would very much shorten the labors of
the general legislature, and render a much smaller number of
members sufficient for it? The federal councils will derive great
advantage from another circumstance. The representatives of each
State will not only bring with them a considerable knowledge of
its laws, and a local knowledge of their respective districts,
but will probably in all cases have been members, and may even at
the very time be members, of the State legislature, where all the
local information and interests of the State are assembled, and
from whence they may easily be conveyed by a very few hands into
the legislature of the United States. The observations made on
the subject of taxation apply with greater force to the case of
the militia. For however different the rules of discipline may be
in different States, they are the same throughout each particular
State; and depend on circumstances which can differ but little in
different parts of the same State. The attentive reader will
discern that the reasoning here used, to prove the sufficiency of
a moderate number of representatives, does not in any respect
contradict what was urged on another occasion with regard to the
extensive information which the representatives ought to possess,
and the time that might be necessary for acquiring it. This
information, so far as it may relate to local objects, is
rendered necessary and difficult, not by a difference of laws and
local circumstances within a single State, but of those among
different States. Taking each State by itself, its laws are the
same, and its interests but little diversified. A few men,
therefore, will possess all the knowledge requisite for a proper
representation of them. Were the interests and affairs of each
individual State perfectly simple and uniform, a knowledge of
them in one part would involve a knowledge of them in every
other, and the whole State might be competently represented by a
single member taken from any part of it. On a comparison of the
different States together, we find a great dissimilarity in their
laws, and in many other circumstances connected with the objects
of federal legislation, with all of which the federal
representatives ought to have some acquaintance. Whilst a few
representatives, therefore, from each State, may bring with them
a due knowledge of their own State, every representative will
have much information to acquire concerning all the other States.
The changes of time, as was formerly remarked, on the comparative
situation of the different States, will have an assimilating
effect. The effect of time on the internal affairs of the States,
taken singly, will be just the contrary. At present some of the
States are little more than a society of husbandmen. Few of them
have made much progress in those branches of industry which give
a variety and complexity to the affairs of a nation. These,
however, will in all of them be the fruits of a more advanced
population, and will require, on the part of each State, a fuller
representation. The foresight of the convention has accordingly
taken care that the progress of population may be accompanied
with a proper increase of the representative branch of the
government. The experience of Great Britain, which presents to
mankind so many political lessons, both of the monitory and
exemplary kind, and which has been frequently consulted in the
course of these inquiries, corroborates the result of the
reflections which we have just made. The number of inhabitants in
the two kingdoms of England and Scotland cannot be stated at less
than eight millions. The representatives of these eight millions
in the House of Commons amount to five hundred and fifty-eight.
Of this number, one ninth are elected by three hundred and
sixty-four persons, and one half, by five thousand seven hundred
and twenty-three persons. 1 It cannot be supposed that the half
thus elected, and who do not even reside among the people at
large, can add any thing either to the security of the people
against the government, or to the knowledge of their
circumstances and interests in the legislative councils. On the
contrary, it is notorious, that they are more frequently the
representatives and instruments of the executive magistrate, than
the guardians and advocates of the popular rights. They might
therefore, with great propriety, be considered as something more
than a mere deduction from the real representatives of the
nation. We will, however, consider them in this light alone, and
will not extend the deduction to a considerable number of
others, who do not reside among their constitutents, are very
faintly connected with them, and have very little particular
knowledge of their affairs. With all these concessions, two
hundred and seventy-nine persons only will be the depository of
the safety, interest, and happiness of eight millions that is to
say, there will be one representative only to maintain the rights
and explain the situation OF TWENTY-EIGHT THOUSAND SIX HUNDRED
AND SEVENTY constitutents, in an assembly exposed to the whole
force of executive influence, and extending its authority to
every object of legislation within a nation whose affairs are in
the highest degree diversified and complicated. Yet it is very
certain, not only that a valuable portion of freedom has been
preserved under all these circumstances, but that the defects in
the British code are chargeable, in a very small proportion, on
the ignorance of the legislature concerning the circumstances of
the people. Allowing to this case the weight which is due to it,
and comparing it with that of the House of Representatives as
above explained it seems to give the fullest assurance, that a
representative for every THIRTY THOUSAND INHABITANTS will render
the latter both a safe and competent guardian of the interests
which will be confided to it. PUBLIUS. Burgh's ``Political
Disquisitions. ''
FEDERALIST No. 57
The Alleged Tendency of the New Plan to Elevate the Few at the
Expense of the Many Considered in Connection with Representation
From the New York Packet. Tuesday, February 19, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
THE THIRD charge against the House of Representatives is, that it
will be taken from that class of citizens which will have least
sympathy with the mass of the people, and be most likely to aim
at an ambitious sacrifice of the many to the aggrandizement of
the few. Of all the objections which have been framed against the
federal Constitution, this is perhaps the most extraordinary.
Whilst the objection itself is levelled against a pretended
oligarchy, the principle of it strikes at the very root of
republican government. The aim of every political constitution
is, or ought to be, first to obtain for rulers men who possess
most wisdom to discern, and most virtue to pursue, the common
good of the society; and in the next place, to take the most
effectual precautions for keeping them virtuous whilst they
continue to hold their public trust. The elective mode of
obtaining rulers is the characteristic policy of republican
government. The means relied on in this form of government for
preventing their degeneracy are numerous and various. The most
effectual one, is such a limitation of the term of appointments
as will maintain a proper responsibility to the people. Let me
now ask what circumstance there is in the constitution of the
House of Representatives that violates the principles of
republican government, or favors the elevation of the few on the
ruins of the many? Let me ask whether every circumstance is not,
on the contrary, strictly conformable to these principles, and
scrupulously impartial to the rights and pretensions of every
class and description of citizens? Who are to be the electors of
the federal representatives? Not the rich, more than the poor;
not the learned, more than the ignorant; not the haughty heirs of
distinguished names, more than the humble sons of obscurity and
unpropitious fortune. The electors are to be the great body of
the people of the United States. They are to be the same who
exercise the right in every State of electing the corresponding
branch of the legislature of the State. Who are to be the objects
of popular choice? Every citizen whose merit may recommend him to
the esteem and confidence of his country. No qualification of
wealth, of birth, of religious faith, or of civil profession is
permitted to fetter the judgement or disappoint the inclination
of the people. If we consider the situation of the men on whom
the free suffrages of their fellow-citizens may confer the
representative trust, we shall find it involving every security
which can be devised or desired for their fidelity to their
constituents. In the first place, as they will have been
distinguished by the preference of their fellow-citizens, we are
to presume that in general they will be somewhat distinguished
also by those qualities which entitle them to it, and which
promise a sincere and scrupulous regard to the nature of their
engagements. In the second place, they will enter into the public
service under circumstances which cannot fail to produce a
temporary affection at least to their constituents. There is in
every breast a sensibility to marks of honor, of favor, of
esteem, and of confidence, which, apart from all considerations
of interest, is some pledge for grateful and benevolent returns.
Ingratitude is a common topic of declamation against human
nature; and it must be confessed that instances of it are but too
frequent and flagrant, both in public and in private life. But
the universal and extreme indignation which it inspires is itself
a proof of the energy and prevalence of the contrary sentiment.
In the third place, those ties which bind the representative to
his constituents are strengthened by motives of a more selfish
nature. His pride and vanity attach him to a form of government
which favors his pretensions and gives him a share in its honors
and distinctions. Whatever hopes or projects might be entertained
by a few aspiring characters, it must generally happen that a
great proportion of the men deriving their advancement from their
influence with the people, would have more to hope from a
preservation of the favor, than from innovations in the
government subversive of the authority of the people. All these
securities, however, would be found very insufficient without the
restraint of frequent elections. Hence, in the fourth place, the
House of Representatives is so constituted as to support in the
members an habitual recollection of their dependence on the
people. Before the sentiments impressed on their minds by the
mode of their elevation can be effaced by the exercise of power,
they will be compelled to anticipate the moment when their power
is to cease, when their exercise of it is to be reviewed, and
when they must descend to the level from which they were raised;
there forever to remain unless a faithful discharge of their
trust shall have established their title to a renewal of it. I
will add, as a fifth circumstance in the situation of the House
of Representatives, restraining them from oppressive measures,
that they can make no law which will not have its full operation
on themselves and their friends, as well as on the great mass of
the society. This has always been deemed one of the strongest
bonds by which human policy can connect the rulers and the people
together. It creates between them that communion of interests and
sympathy of sentiments, of which few governments have furnished
examples; but without which every government degenerates into
tyranny. If it be asked, what is to restrain the House of
Representatives from making legal discriminations in favor of
themselves and a particular class of the society? I answer: the
genius of the whole system; the nature of just and constitutional
laws; and above all, the vigilant and manly spirit which actuates
the people of America, a spirit which nourishes freedom, and in
return is nourished by it. If this spirit shall ever be so far
debased as to tolerate a law not obligatory on the legislature,
as well as on the people, the people will be prepared to tolerate
any thing but liberty. Such will be the relation between the
House of Representatives and their constituents. Duty, gratitude,
interest, ambition itself, are the chords by which they will be
bound to fidelity and sympathy with the great mass of the people.
It is possible that these may all be insufficient to control the
caprice and wickedness of man. But are they not all that
government will admit, and that human prudence can devise? Are
they not the genuine and the characteristic means by which
republican government provides for the liberty and happiness of
the people? Are they not the identical means on which every State
government in the Union relies for the attainment of these
important ends? What then are we to understand by the objection
which this paper has combated? What are we to say to the men who
profess the most flaming zeal for republican government, yet
boldly impeach the fundamental principle of it; who pretend to be
champions for the right and the capacity of the people to choose
their own rulers, yet maintain that they will prefer those only
who will immediately and infallibly betray the trust committed to
them? Were the objection to be read by one who had not seen the
mode prescribed by the Constitution for the choice of
representatives, he could suppose nothing less than that some
unreasonable qualification of property was annexed to the right
of suffrage; or that the right of eligibility was limited to
persons of particular families or fortunes; or at least that the
mode prescribed by the State constitutions was in some respect or
other, very grossly departed from. We have seen how far such a
supposition would err, as to the two first points. Nor would it,
in fact, be less erroneous as to the last. The only difference
discoverable between the two cases is, that each representative
of the United States will be elected by five or six thousand
citizens; whilst in the individual States, the election of a
representative is left to about as many hundreds. Will it be
pretended that this difference is sufficient to justify an
attachment to the State governments, and an abhorrence to the
federal government? If this be the point on which the objection
turns, it deserves to be examined. Is it supported by REASON?
This cannot be said, without maintaining that five or six
thousand citizens are less capable of choosing a fit
representative, or more liable to be corrupted by an unfit one,
than five or six hundred. Reason, on the contrary, assures us,
that as in so great a number a fit representative would be most
likely to be found, so the choice would be less likely to be
diverted from him by the intrigues of the ambitious or the
ambitious or the bribes of the rich. Is the CONSEQUENCE from
this doctrine admissible? If we say that five or six hundred
citizens are as many as can jointly exercise their right of
suffrage, must we not deprive the people of the immediate choice
of their public servants, in every instance where the
administration of the government does not require as many of them
as will amount to one for that number of citizens? Is the
doctrine warranted by FACTS? It was shown in the last paper, that
the real representation in the British House of Commons very
little exceeds the proportion of one for every thirty thousand
inhabitants. Besides a variety of powerful causes not existing
here, and which favor in that country the pretensions of rank and
wealth, no person is eligible as a representative of a county,
unless he possess real estate of the clear value of six hundred
pounds sterling per year; nor of a city or borough, unless he
possess a like estate of half that annual value. To this
qualification on the part of the county representatives is added
another on the part of the county electors, which restrains the
right of suffrage to persons having a freehold estate of the
annual value of more than twenty pounds sterling, according to
the present rate of money. Notwithstanding these unfavorable
circumstances, and notwithstanding some very unequal laws in the
British code, it cannot be said that the representatives of the
nation have elevated the few on the ruins of the many. But we
need not resort to foreign experience on this subject. Our own
is explicit and decisive. The districts in New Hampshire in
which the senators are chosen immediately by the people, are
nearly as large as will be necessary for her representatives in
the Congress. Those of Massachusetts are larger than will be
necessary for that purpose; and those of New York still more so.
In the last State the members of Assembly for the cities and
counties of New York and Albany are elected by very nearly as
many voters as will be entitled to a representative in the
Congress, calculating on the number of sixty-five representatives
only. It makes no difference that in these senatorial districts
and counties a number of representatives are voted for by each
elector at the same time. If the same electors at the same time
are capable of choosing four or five representatives, they cannot
be incapable of choosing one. Pennsylvania is an additional
example. Some of her counties, which elect her State
representatives, are almost as large as her districts will be by
which her federal representatives will be elected. The city of
Philadelphia is supposed to contain between fifty and sixty
thousand souls. It will therefore form nearly two districts for
the choice of federal representatives. It forms, however, but
one county, in which every elector votes for each of its
representatives in the State legislature. And what may appear to
be still more directly to our purpose, the whole city actually
elects a SINGLE MEMBER for the executive council. This is the
case in all the other counties of the State. Are not these facts
the most satisfactory proofs of the fallacy which has been
employed against the branch of the federal government under
consideration? Has it appeared on trial that the senators of New
Hampshire, Massachusetts, and New York, or the executive council
of Pennsylvania, or the members of the Assembly in the two last
States, have betrayed any peculiar disposition to sacrifice the
many to the few, or are in any respect less worthy of their
places than the representatives and magistrates appointed in
other States by very small divisions of the people? But there are
cases of a stronger complexion than any which I have yet quoted.
One branch of the legislature of Connecticut is so constituted
that each member of it is elected by the whole State. So is the
governor of that State, of Massachusetts, and of this State, and
the president of New Hampshire. I leave every man to decide
whether the result of any one of these experiments can be said to
countenance a suspicion, that a diffusive mode of choosing
representatives of the people tends to elevate traitors and to
undermine the public liberty. PUBLIUS.
FEDERALIST No. 58
Objection That The Number of Members Will Not Be Augmented as the
Progress of Population Demands Considered
MADISON
To the People of the State of New York:
THE remaining charge against the House of Representatives, which
I am to examine, is grounded on a supposition that the number of
members will not be augmented from time to time, as the progress
of population may demand. It has been admitted, that this
objection, if well supported, would have great weight. The
following observations will show that, like most other objections
against the Constitution, it can only proceed from a partial view
of the subject, or from a jealousy which discolors and disfigures
every object which is beheld. 1. Those who urge the objection
seem not to have recollected that the federal Constitution will
not suffer by a comparison with the State constitutions, in the
security provided for a gradual augmentation of the number of
representatives. The number which is to prevail in the first
instance is declared to be temporary. Its duration is limited to
the short term of three years. Within every successive term of
ten years a census of inhabitants is to be repeated. The
unequivocal objects of these regulations are, first, to readjust,
from time to time, the apportionment of representatives to the
number of inhabitants, under the single exception that each State
shall have one representative at least; secondly, to augment the
number of representatives at the same periods, under the sole
limitation that the whole number shall not exceed one for every
thirty thousand inhabitants. If we review the constitutions of
the several States, we shall find that some of them contain no
determinate regulations on this subject, that others correspond
pretty much on this point with the federal Constitution, and that
the most effectual security in any of them is resolvable into a
mere directory provision. 2. As far as experience has taken place
on this subject, a gradual increase of representatives under the
State constitutions has at least kept pace with that of the
constituents, and it appears that the former have been as ready
to concur in such measures as the latter have been to call for
them. 3. There is a peculiarity in the federal Constitution which
insures a watchful attention in a majority both of the people and
of their representatives to a constitutional augmentation of the
latter. The peculiarity lies in this, that one branch of the
legislature is a representation of citizens, the other of the
States: in the former, consequently, the larger States will have
most weight; in the latter, the advantage will be in favor of the
smaller States. From this circumstance it may with certainty be
inferred that the larger States will be strenuous advocates for
increasing the number and weight of that part of the legislature
in which their influence predominates. And it so happens that
four only of the largest will have a majority of the whole votes
in the House of Representatives. Should the representatives or
people, therefore, of the smaller States oppose at any time a
reasonable addition of members, a coalition of a very few States
will be sufficient to overrule the opposition; a coalition which,
notwithstanding the rivalship and local prejudices which might
prevent it on ordinary occasions, would not fail to take place,
when not merely prompted by common interest, but justified by
equity and the principles of the Constitution. It may be
alleged, perhaps, that the Senate would be prompted by like
motives to an adverse coalition; and as their concurrence would
be indispensable, the just and constitutional views of the other
branch might be defeated. This is the difficulty which has
probably created the most serious apprehensions in the jealous
friends of a numerous representation. Fortunately it is among
the difficulties which, existing only in appearance, vanish on a
close and accurate inspection. The following reflections will,
if I mistake not, be admitted to be conclusive and satisfactory
on this point. Notwithstanding the equal authority which will
subsist between the two houses on all legislative subjects,
except the originating of money bills, it cannot be doubted that
the House, composed of the greater number of members, when
supported by the more powerful States, and speaking the known and
determined sense of a majority of the people, will have no small
advantage in a question depending on the comparative firmness of
the two houses. This advantage must be increased by the
consciousness, felt by the same side of being supported in its
demands by right, by reason, and by the Constitution; and the
consciousness, on the opposite side, of contending against the
force of all these solemn considerations. It is farther to be
considered, that in the gradation between the smallest and
largest States, there are several, which, though most likely in
general to arrange themselves among the former are too little
removed in extent and population from the latter, to second an
opposition to their just and legitimate pretensions. Hence it is
by no means certain that a majority of votes, even in the
Senate, would be unfriendly to proper augmentations in the number
of representatives. It will not be looking too far to add, that
the senators from all the new States may be gained over to the
just views of the House of Representatives, by an expedient too
obvious to be overlooked. As these States will, for a great
length of time, advance in population with peculiar rapidity,
they will be interested in frequent reapportionments of the
representatives to the number of inhabitants. The large States,
therefore, who will prevail in the House of Representatives, will
have nothing to do but to make reapportionments and augmentations
mutually conditions of each other; and the senators from all the
most growing States will be bound to contend for the latter, by
the interest which their States will feel in the former. These
considerations seem to afford ample security on this subject, and
ought alone to satisfy all the doubts and fears which have been
indulged with regard to it. Admitting, however, that they should
all be insufficient to subdue the unjust policy of the smaller
States, or their predominant influence in the councils of the
Senate, a constitutional and infallible resource still remains
with the larger States, by which they will be able at all times
to accomplish their just purposes. The House of Representatives
cannot only refuse, but they alone can propose, the supplies
requisite for the support of government. They, in a word, hold
the purse that powerful instrument by which we behold, in the
history of the British Constitution, an infant and humble
representation of the people gradually enlarging the sphere of
its activity and importance, and finally reducing, as far as it
seems to have wished, all the overgrown prerogatives of the other
branches of the government. This power over the purse may, in
fact, be regarded as the most complete and effectual weapon with
which any constitution can arm the immediate representatives of
the people, for obtaining a redress of every grievance, and for
carrying into effect every just and salutary measure. But will
not the House of Representatives be as much interested as the
Senate in maintaining the government in its proper functions, and
will they not therefore be unwilling to stake its existence or
its reputation on the pliancy of the Senate? Or, if such a trial
of firmness between the two branches were hazarded, would not the
one be as likely first to yield as the other? These questions
will create no difficulty with those who reflect that in all
cases the smaller the number, and the more permanent and
conspicuous the station, of men in power, the stronger must be
the interest which they will individually feel in whatever
concerns the government. Those who represent the dignity of their
country in the eyes of other nations, will be particularly
sensible to every prospect of public danger, or of dishonorable
stagnation in public affairs. To those causes we are to ascribe
the continual triumph of the British House of Commons over the
other branches of the government, whenever the engine of a money
bill has been employed. An absolute inflexibility on the side of
the latter, although it could not have failed to involve every
department of the state in the general confusion, has neither
been apprehended nor experienced. The utmost degree of firmness
that can be displayed by the federal Senate or President, will
not be more than equal to a resistance in which they will be
supported by constitutional and patriotic principles. In this
review of the Constitution of the House of Representatives, I
have passed over the circumstances of economy, which, in the
present state of affairs, might have had some effect in lessening
the temporary number of representatives, and a disregard of which
would probably have been as rich a theme of declamation against
the Constitution as has been shown by the smallness of the number
proposed. I omit also any remarks on the difficulty which might
be found, under present circumstances, in engaging in the federal
service a large number of such characters as the people will
probably elect. One observation, however, I must be permitted to
add on this subject as claiming, in my judgment, a very serious
attention. It is, that in all legislative assemblies the greater
the number composing them may be, the fewer will be the men who
will in fact direct their proceedings. In the first place, the
more numerous an assembly may be, of whatever characters
composed, the greater is known to be the ascendency of passion
over reason. In the next place, the larger the number, the
greater will be the proportion of members of limited information
and of weak capacities. Now, it is precisely on characters of
this description that the eloquence and address of the few are
known to act with all their force. In the ancient republics,
where the whole body of the people assembled in person, a single
orator, or an artful statesman, was generally seen to rule with
as complete a sway as if a sceptre had been placed in his single
hand. On the same principle, the more multitudinous a
representative assembly may be rendered, the more it will partake
of the infirmities incident to collective meetings of the people.
Ignorance will be the dupe of cunning, and passion the slave of
sophistry and declamation. The people can never err more than in
supposing that by multiplying their representatives beyond a
certain limit, they strengthen the barrier against the government
of a few. Experience will forever admonish them that, on the
contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSES OF
SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE
WHOLE SOCIETY, they will counteract their own views by every
addition to their representatives. The countenance of the
government may become more democratic, but the soul that animates
it will be more oligarchic. The machine will be enlarged, but the
fewer, and often the more secret, will be the springs by which
its motions are directed. As connected with the objection against
the number of representatives, may properly be here noticed, that
which has been suggested against the number made competent for
legislative business. It has been said that more than a majority
ought to have been required for a quorum; and in particular
cases, if not in all, more than a majority of a quorum for a
decision. That some advantages might have resulted from such a
precaution, cannot be denied. It might have been an additional
shield to some particular interests, and another obstacle
generally to hasty and partial measures. But these considerations
are outweighed by the inconveniences in the opposite scale. In
all cases where justice or the general good might require new
laws to be passed, or active measures to be pursued, the
fundamental principle of free government would be reversed. It
would be no longer the majority that would rule: the power would
be transferred to the minority. Were the defensive privilege
limited to particular cases, an interested minority might take
advantage of it to screen themselves from equitable sacrifices to
the general weal, or, in particular emergencies, to extort
unreasonable indulgences. Lastly, it would facilitate and foster
the baneful practice of secessions; a practice which has shown
itself even in States where a majority only is required; a
practice subversive of all the principles of order and regular
government; a practice which leads more directly to public
convulsions, and the ruin of popular governments, than any other
which has yet been displayed among us. PUBLIUS.
FEDERALIST No. 59
Concerning the Power of Congress to Regulate the Election of
Members
From the New York Packet. Friday, February 22, 1788.
HAMILTON
To the People of the State of New York:
THE natural order of the subject leads us to consider, in this
place, that provision of the Constitution which authorizes the
national legislature to regulate, in the last resort, the
election of its own members. It is in these words: ``The TIMES,
PLACES, and MANNER of holding elections for senators and
representatives shall be prescribed in each State by the
legislature thereof; but the Congress may, at any time, by law,
make or alter SUCH REGULATIONS, except as to the PLACES of
choosing senators. ''1 This provision has not only been declaimed
against by those who condemn the Constitution in the gross, but
it has been censured by those who have objected with less
latitude and greater moderation; and, in one instance it has been
thought exceptionable by a gentleman who has declared himself the
advocate of every other part of the system. I am greatly
mistaken, notwithstanding, if there be any article in the whole
plan more completely defensible than this. Its propriety rests
upon the evidence of this plain proposition, that EVERY
GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN
PRESERVATION. Every just reasoner will, at first sight, approve
an adherence to this rule, in the work of the convention; and
will disapprove every deviation from it which may not appear to
have been dictated by the necessity of incorporating into the
work some particular ingredient, with which a rigid conformity to
the rule was incompatible. Even in this case, though he may
acquiesce in the necessity, yet he will not cease to regard and
to regret a departure from so fundamental a principle, as a
portion of imperfection in the system which may prove the seed of
future weakness, and perhaps anarchy. It will not be alleged,
that an election law could have been framed and inserted in the
Constitution, which would have been always applicable to every
probable change in the situation of the country; and it will
therefore not be denied, that a discretionary power over
elections ought to exist somewhere. It will, I presume, be as
readily conceded, that there were only three ways in which this
power could have been reasonably modified and disposed: that it
must either have been lodged wholly in the national legislature,
or wholly in the State legislatures, or primarily in the latter
and ultimately in the former. The last mode has, with reason,
been preferred by the convention. They have submitted the
regulation of elections for the federal government, in the first
instance, to the local administrations; which, in ordinary
cases, and when no improper views prevail, may be both more
convenient and more satisfactory; but they have reserved to the
national authority a right to interpose, whenever extraordinary
circumstances might render that interposition necessary to its
safety. Nothing can be more evident, than that an exclusive
power of regulating elections for the national government, in the
hands of the State legislatures, would leave the existence of the
Union entirely at their mercy. They could at any moment
annihilate it, by neglecting to provide for the choice of persons
to administer its affairs. It is to little purpose to say, that
a neglect or omission of this kind would not be likely to take
place. The constitutional possibility of the thing, without an
equivalent for the risk, is an unanswerable objection. Nor has
any satisfactory reason been yet assigned for incurring that
risk. The extravagant surmises of a distempered jealousy can
never be dignified with that character. If we are in a humor to
presume abuses of power, it is as fair to presume them on the
part of the State governments as on the part of the general
government. And as it is more consonant to the rules of a just
theory, to trust the Union with the care of its own existence,
than to transfer that care to any other hands, if abuses of power
are to be hazarded on the one side or on the other, it is more
rational to hazard them where the power would naturally be
placed, than where it would unnaturally be placed. Suppose an
article had been introduced into the Constitution, empowering the
United States to regulate the elections for the particular
States, would any man have hesitated to condemn it, both as an
unwarrantable transposition of power, and as a premeditated
engine for the destruction of the State governments? The
violation of principle, in this case, would have required no
comment; and, to an unbiased observer, it will not be less
apparent in the project of subjecting the existence of the
national government, in a similar respect, to the pleasure of the
State governments. An impartial view of the matter cannot fail
to result in a conviction, that each, as far as possible, ought
to depend on itself for its own preservation. As an objection to
this position, it may be remarked that the constitution of the
national Senate would involve, in its full extent, the danger
which it is suggested might flow from an exclusive power in the
State legislatures to regulate the federal elections. It may be
alleged, that by declining the appointment of Senators, they
might at any time give a fatal blow to the Union; and from this
it may be inferred, that as its existence would be thus rendered
dependent upon them in so essential a point, there can be no
objection to intrusting them with it in the particular case under
consideration. The interest of each State, it may be added, to
maintain its representation in the national councils, would be a
complete security against an abuse of the trust. This argument,
though specious, will not, upon examination, be found solid. It
is certainly true that the State legislatures, by forbearing the
appointment of senators, may destroy the national government. But
it will not follow that, because they have a power to do this in
one instance, they ought to have it in every other. There are
cases in which the pernicious tendency of such a power may be far
more decisive, without any motive equally cogent with that which
must have regulated the conduct of the convention in respect to
the formation of the Senate, to recommend their admission into
the system. So far as that construction may expose the Union to
the possibility of injury from the State legislatures, it is an
evil; but it is an evil which could not have been avoided without
excluding the States, in their political capacities, wholly from
a place in the organization of the national government. If this
had been done, it would doubtless have been interpreted into an
entire dereliction of the federal principle; and would certainly
have deprived the State governments of that absolute safeguard
which they will enjoy under this provision. But however wise it
may have been to have submitted in this instance to an
inconvenience, for the attainment of a necessary advantage or a
greater good, no inference can be drawn from thence to favor an
accumulation of the evil, where no necessity urges, nor any
greater good invites. It may be easily discerned also that the
national government would run a much greater risk from a power in
the State legislatures over the elections of its House of
Representatives, than from their power of appointing the members
of its Senate. The senators are to be chosen for the period of
six years; there is to be a rotation, by which the seats of a
third part of them are to be vacated and replenished every two
years; and no State is to be entitled to more than two senators;
a quorum of the body is to consist of sixteen members. The joint
result of these circumstances would be, that a temporary
combination of a few States to intermit the appointment of
senators, could neither annul the existence nor impair the
activity of the body; and it is not from a general and permanent
combination of the States that we can have any thing to fear. The
first might proceed from sinister designs in the leading members
of a few of the State legislatures; the last would suppose a
fixed and rooted disaffection in the great body of the people,
which will either never exist at all, or will, in all
probability, proceed from an experience of the inaptitude of the
general government to the advancement of their happiness in which
event no good citizen could desire its continuance. But with
regard to the federal House of Representatives, there is intended
to be a general election of members once in two years. If the
State legislatures were to be invested with an exclusive power of
regulating these elections, every period of making them would be
a delicate crisis in the national situation, which might issue in
a dissolution of the Union, if the leaders of a few of the most
important States should have entered into a previous conspiracy
to prevent an election. I shall not deny, that there is a degree
of weight in the observation, that the interests of each State,
to be represented in the federal councils, will be a security
against the abuse of a power over its elections in the hands of
the State legislatures. But the security will not be considered
as complete, by those who attend to the force of an obvious
distinction between the interest of the people in the public
felicity, and the interest of their local rulers in the power and
consequence of their offices. The people of America may be
warmly attached to the government of the Union, at times when the
particular rulers of particular States, stimulated by the natural
rivalship of power, and by the hopes of personal aggrandizement,
and supported by a strong faction in each of those States, may be
in a very opposite temper. This diversity of sentiment between a
majority of the people, and the individuals who have the
greatest credit in their councils, is exemplified in some of the
States at the present moment, on the present question. The
scheme of separate confederacies, which will always nultiply the
chances of ambition, will be a never failing bait to all such
influential characters in the State administrations as are
capable of preferring their own emolument and advancement to the
public weal. With so effectual a weapon in their hands as the
exclusive power of regulating elections for the national
government, a combination of a few such men, in a few of the most
considerable States, where the temptation will always be the
strongest, might accomplish the destruction of the Union, by
seizing the opportunity of some casual dissatisfaction among the
people (and which perhaps they may themselves have excited), to
discontinue the choice of members for the federal House of
Representatives. It ought never to be forgotten, that a firm
union of this country, under an efficient government, will
probably be an increasing object of jealousy to more than one
nation of Europe; and that enterprises to subvert it will
sometimes originate in the intrigues of foreign powers, and will
seldom fail to be patronized and abetted by some of them. Its
preservation, therefore ought in no case that can be avoided, to
be committed to the guardianship of any but those whose situation
will uniformly beget an immediate interest in the faithful and
vigilant performance of the trust. PUBLIUS. Ist clause, 4th
section, of the Ist article.
FEDERALIST No. 60
The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of
Members)
From the New York Packet.
Tuesday, February 26, 1788.
HAMILTON
To the People of the State of New York:
WE HAVE seen, that an uncontrollable power over the elections to
the federal government could not, without hazard, be committed to
the State legislatures. Let us now see, what would be the danger on
the other side; that is, from confiding the ultimate right of
regulating its own elections to the Union itself. It is not
pretended, that this right would ever be used for the exclusion of
any State from its share in the representation. The interest of all
would, in this respect at least, be the security of all. But it is
alleged, that it might be employed in such a manner as to promote
the election of some favorite class of men in exclusion of others,
by confining the places of election to particular districts, and
rendering it impracticable to the citizens at large to partake in
the choice. Of all chimerical suppositions, this seems to be the
most chimerical. On the one hand, no rational calculation of
probabilities would lead us to imagine that the disposition which a
conduct so violent and extraordinary would imply, could ever find
its way into the national councils; and on the other, it may be
concluded with certainty, that if so improper a spirit should ever
gain admittance into them, it would display itself in a form
altogether different and far more decisive.
The improbability of the attempt may be satisfactorily inferred
from this single reflection, that it could never be made without
causing an immediate revolt of the great body of the people, headed
and directed by the State governments. It is not difficult to
conceive that this characteristic right of freedom may, in certain
turbulent and factious seasons, be violated, in respect to a
particular class of citizens, by a victorious and overbearing
majority; but that so fundamental a privilege, in a country so
situated and enlightened, should be invaded to the prejudice of the
great mass of the people, by the deliberate policy of the
government, without occasioning a popular revolution, is altogether
inconceivable and incredible.
In addition to this general reflection, there are considerations
of a more precise nature, which forbid all apprehension on the
subject. The dissimilarity in the ingredients which will compose
the national government, and Ustill more in the manner in which they
will be brought into action in its various branches, must form a
powerful obstacle to a concert of views in any partial scheme of
elections. There is sufficient diversity in the state of property,
in the genius, manners, and habits of the people of the different
parts of the Union, to occasion a material diversity of disposition
in their representatives towards the different ranks and conditions
in society. And though an intimate intercourse under the same
government will promote a gradual assimilation in some of these
respects, yet there are causes, as well physical as moral, which
may, in a greater or less degree, permanently nourish different
propensities and inclinations in this respect. But the circumstance
which will be likely to have the greatest influence in the matter,
will be the dissimilar modes of constituting the several component
parts of the government. The House of Representatives being to be
elected immediately by the people, the Senate by the State
legislatures, the President by electors chosen for that purpose by
the people, there would be little probability of a common interest
to cement these different branches in a predilection for any
particular class of electors.
As to the Senate, it is impossible that any regulation of ``time
and manner,'' which is all that is proposed to be submitted to the
national government in respect to that body, can affect the spirit
which will direct the choice of its members. The collective sense
of the State legislatures can never be influenced by extraneous
circumstances of that sort; a consideration which alone ought to
satisfy us that the discrimination apprehended would never be
attempted. For what inducement could the Senate have to concur in a
preference in which itself would not be included? Or to what
purpose would it be established, in reference to one branch of the
legislature, if it could not be extended to the other? The
composition of the one would in this case counteract that of the
other. And we can never suppose that it would embrace the
appointments to the Senate, unless we can at the same time suppose
the voluntary co-operation of the State legislatures. If we make
the latter supposition, it then becomes immaterial where the power
in question is placed whether in their hands or in those of the
Union.
But what is to be the object of this capricious partiality in
the national councils? Is it to be exercised in a discrimination
between the different departments of industry, or between the
different kinds of property, or between the different degrees of
property? Will it lean in favor of the landed interest, or the
moneyed interest, or the mercantile interest, or the manufacturing
interest? Or, to speak in the fashionable language of the
adversaries to the Constitution, will it court the elevation of
``the wealthy and the well-born,'' to the exclusion and debasement
of all the rest of the society?
If this partiality is to be exerted in favor of those who are
concerned in any particular description of industry or property, I
presume it will readily be admitted, that the competition for it
will lie between landed men and merchants. And I scruple not to
affirm, that it is infinitely less likely that either of them should
gain an ascendant in the national councils, than that the one or the
other of them should predominate in all the local councils. The
inference will be, that a conduct tending to give an undue
preference to either is much less to be dreaded from the former than
from the latter.
The several States are in various degrees addicted to
agriculture and commerce. In most, if not all of them, agriculture
is predominant. In a few of them, however, commerce nearly divides
its empire, and in most of them has a considerable share of
influence. In proportion as either prevails, it will be conveyed
into the national representation; and for the very reason, that
this will be an emanation from a greater variety of interests, and
in much more various proportions, than are to be found in any single
State, it will be much less apt to espouse either of them with a
decided partiality, than the representation of any single State.
In a country consisting chiefly of the cultivators of land,
where the rules of an equal representation obtain, the landed
interest must, upon the whole, preponderate in the government. As
long as this interest prevails in most of the State legislatures, so
long it must maintain a correspondent superiority in the national
Senate, which will generally be a faithful copy of the majorities of
those assemblies. It cannot therefore be presumed, that a sacrifice
of the landed to the mercantile class will ever be a favorite object
of this branch of the federal legislature. In applying thus
particularly to the Senate a general observation suggested by the
situation of the country, I am governed by the consideration, that
the credulous votaries of State power cannot, upon their own
principles, suspect, that the State legislatures would be warped
from their duty by any external influence. But in reality the same
situation must have the same effect, in the primative composition at
least of the federal House of Representatives: an improper bias
towards the mercantile class is as little to be expected from this
quarter as from the other.
In order, perhaps, to give countenance to the objection at any
rate, it may be asked, is there not danger of an opposite bias in
the national government, which may dispose it to endeavor to secure
a monopoly of the federal administration to the landed class? As
there is little likelihood that the supposition of such a bias will
have any terrors for those who would be immediately injured by it, a
labored answer to this question will be dispensed with. It will be
sufficient to remark, first, that for the reasons elsewhere
assigned, it is less likely that any decided partiality should
prevail in the councils of the Union than in those of any of its
members. Secondly, that there would be no temptation to violate the
Constitution in favor of the landed class, because that class would,
in the natural course of things, enjoy as great a preponderancy as
itself could desire. And thirdly, that men accustomed to
investigate the sources of public prosperity upon a large scale,
must be too well convinced of the utility of commerce, to be
inclined to inflict upon it so deep a wound as would result from the
entire exclusion of those who would best understand its interest
from a share in the management of them. The importance of commerce,
in the view of revenue alone, must effectually guard it against the
enmity of a body which would be continually importuned in its favor,
by the urgent calls of public necessity.
I the rather consult brevity in discussing the probability of a
preference founded upon a discrimination between the different kinds
of industry and property, because, as far as I understand the
meaning of the objectors, they contemplate a discrimination of
another kind. They appear to have in view, as the objects of the
preference with which they endeavor to alarm us, those whom they
designate by the description of ``the wealthy and the well-born.''
These, it seems, are to be exalted to an odious pre-eminence over
the rest of their fellow-citizens. At one time, however, their
elevation is to be a necessary consequence of the smallness of the
representative body; at another time it is to be effected by
depriving the people at large of the opportunity of exercising their
right of suffrage in the choice of that body.
But upon what principle is the discrimination of the places of
election to be made, in order to answer the purpose of the meditated
preference? Are ``the wealthy and the well-born,'' as they are
called, confined to particular spots in the several States? Have
they, by some miraculous instinct or foresight, set apart in each of
them a common place of residence? Are they only to be met with in
the towns or cities? Or are they, on the contrary, scattered over
the face of the country as avarice or chance may have happened to
cast their own lot or that of their predecessors? If the latter is
the case, (as every intelligent man knows it to be,1) is it not
evident that the policy of confining the places of election to
particular districts would be as subversive of its own aim as it
would be exceptionable on every other account? The truth is, that
there is no method of securing to the rich the preference
apprehended, but by prescribing qualifications of property either
for those who may elect or be elected. But this forms no part of
the power to be conferred upon the national government. Its
authority would be expressly restricted to the regulation of the
TIMES, the PLACES, the MANNER of elections. The qualifications of
the persons who may choose or be chosen, as has been remarked upon
other occasions, are defined and fixed in the Constitution, and are
unalterable by the legislature.
Let it, however, be admitted, for argument sake, that the
expedient suggested might be successful; and let it at the same
time be equally taken for granted that all the scruples which a
sense of duty or an apprehension of the danger of the experiment
might inspire, were overcome in the breasts of the national rulers,
still I imagine it will hardly be pretended that they could ever
hope to carry such an enterprise into execution without the aid of a
military force sufficient to subdue the resistance of the great body
of the people. The improbability of the existence of a force equal
to that object has been discussed and demonstrated in different
parts of these papers; but that the futility of the objection under
consideration may appear in the strongest light, it shall be
conceded for a moment that such a force might exist, and the
national government shall be supposed to be in the actual possession
of it. What will be the conclusion? With a disposition to invade
the essential rights of the community, and with the means of
gratifying that disposition, is it presumable that the persons who
were actuated by it would amuse themselves in the ridiculous task of
fabricating election laws for securing a preference to a favorite
class of men? Would they not be likely to prefer a conduct better
adapted to their own immediate aggrandizement? Would they not
rather boldly resolve to perpetuate themselves in office by one
decisive act of usurpation, than to trust to precarious expedients
which, in spite of all the precautions that might accompany them,
might terminate in the dismission, disgrace, and ruin of their
authors? Would they not fear that citizens, not less tenacious than
conscious of their rights, would flock from the remote extremes of
their respective States to the places of election, to voerthrow
their tyrants, and to substitute men who would be disposed to avenge
the violated majesty of the people?
PUBLIUS.
1 Particularly in the Southern States and in this State.
FEDERALIST No. 61
The Same Subject Continued
(Concerning the Power of Congress to Regulate the Election of
Members)
From the New York Packet.
Tuesday, February 26, 1788.
HAMILTON
To the People of the State of New York:
THE more candid opposers of the provision respecting elections,
contained in the plan of the convention, when pressed in argument,
will sometimes concede the propriety of that provision; with this
qualification, however, that it ought to have been accompanied with
a declaration, that all elections should be had in the counties
where the electors resided. This, say they, was a necessary
precaution against an abuse of the power. A declaration of this
nature would certainly have been harmless; so far as it would have
had the effect of quieting apprehensions, it might not have been
undesirable. But it would, in fact, have afforded little or no
additional security against the danger apprehended; and the want of
it will never be considered, by an impartial and judicious examiner,
as a serious, still less as an insuperable, objection to the plan.
The different views taken of the subject in the two preceding
papers must be sufficient to satisfy all dispassionate and
discerning men, that if the public liberty should ever be the victim
of the ambition of the national rulers, the power under examination,
at least, will be guiltless of the sacrifice.
If those who are inclined to consult their jealousy only, would
exercise it in a careful inspection of the several State
constitutions, they would find little less room for disquietude and
alarm, from the latitude which most of them allow in respect to
elections, than from the latitude which is proposed to be allowed to
the national government in the same respect. A review of their
situation, in this particular, would tend greatly to remove any ill
impressions which may remain in regard to this matter. But as that
view would lead into long and tedious details, I shall content
myself with the single example of the State in which I write. The
constitution of New York makes no other provision for LOCALITY of
elections, than that the members of the Assembly shall be elected in
the COUNTIES; those of the Senate, in the great districts into
which the State is or may be divided: these at present are four in
number, and comprehend each from two to six counties. It may
readily be perceived that it would not be more difficult to the
legislature of New York to defeat the suffrages of the citizens of
New York, by confining elections to particular places, than for the
legislature of the United States to defeat the suffrages of the
citizens of the Union, by the like expedient. Suppose, for
instance, the city of Albany was to be appointed the sole place of
election for the county and district of which it is a part, would
not the inhabitants of that city speedily become the only electors
of the members both of the Senate and Assembly for that county and
district? Can we imagine that the electors who reside in the remote
subdivisions of the counties of Albany, Saratoga, Cambridge, etc.,
or in any part of the county of Montgomery, would take the trouble
to come to the city of Albany, to give their votes for members of
the Assembly or Senate, sooner than they would repair to the city of
New York, to participate in the choice of the members of the federal
House of Representatives? The alarming indifference discoverable in
the exercise of so invaluable a privilege under the existing laws,
which afford every facility to it, furnishes a ready answer to this
question. And, abstracted from any experience on the subject, we
can be at no loss to determine, that when the place of election is
at an INCONVENIENT DISTANCE from the elector, the effect upon his
conduct will be the same whether that distance be twenty miles or
twenty thousand miles. Hence it must appear, that objections to the
particular modification of the federal power of regulating elections
will, in substance, apply with equal force to the modification of
the like power in the constitution of this State; and for this
reason it will be impossible to acquit the one, and to condemn the
other. A similar comparison would lead to the same conclusion in
respect to the constitutions of most of the other States.
If it should be said that defects in the State constitutions
furnish no apology for those which are to be found in the plan
proposed, I answer, that as the former have never been thought
chargeable with inattention to the security of liberty, where the
imputations thrown on the latter can be shown to be applicable to
them also, the presumption is that they are rather the cavilling
refinements of a predetermined opposition, than the well-founded
inferences of a candid research after truth. To those who are
disposed to consider, as innocent omissions in the State
constitutions, what they regard as unpardonable blemishes in the
plan of the convention, nothing can be said; or at most, they can
only be asked to assign some substantial reason why the
representatives of the people in a single State should be more
impregnable to the lust of power, or other sinister motives, than
the representatives of the people of the United States? If they
cannot do this, they ought at least to prove to us that it is easier
to subvert the liberties of three millions of people, with the
advantage of local governments to head their opposition, than of two
hundred thousand people who are destitute of that advantage. And in
relation to the point immediately under consideration, they ought to
convince us that it is less probable that a predominant faction in a
single State should, in order to maintain its superiority, incline
to a preference of a particular class of electors, than that a
similar spirit should take possession of the representatives of
thirteen States, spread over a vast region, and in several respects
distinguishable from each other by a diversity of local
circumstances, prejudices, and interests.
Hitherto my observations have only aimed at a vindication of the
provision in question, on the ground of theoretic propriety, on that
of the danger of placing the power elsewhere, and on that of the
safety of placing it in the manner proposed. But there remains to
be mentioned a positive advantage which will result from this
disposition, and which could not as well have been obtained from any
other: I allude to the circumstance of uniformity in the time of
elections for the federal House of Representatives. It is more than
possible that this uniformity may be found by experience to be of
great importance to the public welfare, both as a security against
the perpetuation of the same spirit in the body, and as a cure for
the diseases of faction. If each State may choose its own time of
election, it is possible there may be at least as many different
periods as there are months in the year. The times of election in
the several States, as they are now established for local purposes,
vary between extremes as wide as March and November. The
consequence of this diversity would be that there could never happen
a total dissolution or renovation of the body at one time. If an
improper spirit of any kind should happen to prevail in it, that
spirit would be apt to infuse itself into the new members, as they
come forward in succession. The mass would be likely to remain
nearly the same, assimilating constantly to itself its gradual
accretions. There is a contagion in example which few men have
sufficient force of mind to resist. I am inclined to think that
treble the duration in office, with the condition of a total
dissolution of the body at the same time, might be less formidable
to liberty than one third of that duration subject to gradual and
successive alterations.
Uniformity in the time of elections seems not less requisite for
executing the idea of a regular rotation in the Senate, and for
conveniently assembling the legislature at a stated period in each
year.
It may be asked, Why, then, could not a time have been fixed in
the Constitution? As the most zealous adversaries of the plan of
the convention in this State are, in general, not less zealous
admirers of the constitution of the State, the question may be
retorted, and it may be asked, Why was not a time for the like
purpose fixed in the constitution of this State? No better answer
can be given than that it was a matter which might safely be
entrusted to legislative discretion; and that if a time had been
appointed, it might, upon experiment, have been found less
convenient than some other time. The same answer may be given to
the question put on the other side. And it may be added that the
supposed danger of a gradual change being merely speculative, it
would have been hardly advisable upon that speculation to establish,
as a fundamental point, what would deprive several States of the
convenience of having the elections for their own governments and
for the national government at the same epochs.
PUBLIUS.
FEDERALIST No. 62
The Senate
For the Independent Journal.
HAMILTON OR MADISON
To the People of the State of New York:
HAVING examined the constitution of the House of
Representatives, and answered such of the objections against it as
seemed to merit notice, I enter next on the examination of the
Senate.
The heads into which this member of the government may be
considered are: I. The qualification of senators; II. The
appointment of them by the State legislatures; III. The equality of
representation in the Senate; IV. The number of senators, and the
term for which they are to be elected; V. The powers vested in the
Senate.
I. The qualifications proposed for senators, as distinguished
from those of representatives, consist in a more advanced age and a
longer period of citizenship. A senator must be thirty years of age
at least; as a representative must be twenty-five. And the former
must have been a citizen nine years; as seven years are required
for the latter. The propriety of these distinctions is explained by
the nature of the senatorial trust, which, requiring greater extent
of information and tability of character, requires at the same time
that the senator should have reached a period of life most likely to
supply these advantages; and which, participating immediately in
transactions with foreign nations, ought to be exercised by none who
are not thoroughly weaned from the prepossessions and habits
incident to foreign birth and education. The term of nine years
appears to be a prudent mediocrity between a total exclusion of
adopted citizens, whose merits and talents may claim a share in the
public confidence, and an indiscriminate and hasty admission of
them, which might create a channel for foreign influence on the
national councils.
II. It is equally unnecessary to dilate on the appointment of
senators by the State legislatures. Among the various modes which
might have been devised for constituting this branch of the
government, that which has been proposed by the convention is
probably the most congenial with the public opinion. It is
recommended by the double advantage of favoring a select
appointment, and of giving to the State governments such an agency
in the formation of the federal government as must secure the
authority of the former, and may form a convenient link between the
two systems.
III. The equality of representation in the Senate is another
point, which, being evidently the result of compromise between the
opposite pretensions of the large and the small States, does not
call for much discussion. If indeed it be right, that among a
people thoroughly incorporated into one nation, every district ought
to have a PROPORTIONAL share in the government, and that among
independent and sovereign States, bound together by a simple league,
the parties, however unequal in size, ought to have an EQUAL share
in the common councils, it does not appear to be without some reason
that in a compound republic, partaking both of the national and
federal character, the government ought to be founded on a mixture
of the principles of proportional and equal representation. But it
is superfluous to try, by the standard of theory, a part of the
Constitution which is allowed on all hands to be the result, not of
theory, but ``of a spirit of amity, and that mutual deference and
concession which the peculiarity of our political situation rendered
indispensable.'' A common government, with powers equal to its
objects, is called for by the voice, and still more loudly by the
political situation, of America. A government founded on principles
more consonant to the wishes of the larger States, is not likely to
be obtained from the smaller States. The only option, then, for the
former, lies between the proposed government and a government still
more objectionable. Under this alternative, the advice of prudence
must be to embrace the lesser evil; and, instead of indulging a
fruitless anticipation of the possible mischiefs which may ensue, to
contemplate rather the advantageous consequences which may qualify
the sacrifice.
In this spirit it may be remarked, that the equal vote allowed
to each State is at once a constitutional recognition of the portion
of sovereignty remaining in the individual States, and an instrument
for preserving that residuary sovereignty. So far the equality
ought to be no less acceptable to the large than to the small
States; since they are not less solicitous to guard, by every
possible expedient, against an improper consolidation of the States
into one simple republic.
Another advantage accruing from this ingredient in the
constitution of the Senate is, the additional impediment it must
prove against improper acts of legislation. No law or resolution
can now be passed without the concurrence, first, of a majority of
the people, and then, of a majority of the States. It must be
acknowledged that this complicated check on legislation may in some
instances be injurious as well as beneficial; and that the peculiar
defense which it involves in favor of the smaller States, would be
more rational, if any interests common to them, and distinct from
those of the other States, would otherwise be exposed to peculiar
danger. But as the larger States will always be able, by their
power over the supplies, to defeat unreasonable exertions of this
prerogative of the lesser States, and as the faculty and excess of
law-making seem to be the diseases to which our governments are most
liable, it is not impossible that this part of the Constitution may
be more convenient in practice than it appears to many in
contemplation.
IV. The number of senators, and the duration of their
appointment, come next to be considered. In order to form an
accurate judgment on both of these points, it will be proper to
inquire into the purposes which are to be answered by a senate; and
in order to ascertain these, it will be necessary to review the
inconveniences which a republic must suffer from the want of such an
institution.
First. It is a misfortune incident to republican
government, though in a less degree than to other governments, that
those who administer it may forget their obligations to their
constituents, and prove unfaithful to their important trust. In
this point of view, a senate, as a second branch of the legislative
assembly, distinct from, and dividing the power with, a first, must
be in all cases a salutary check on the government. It doubles the
security to the people, by requiring the concurrence of two distinct
bodies in schemes of usurpation or perfidy, where the ambition or
corruption of one would otherwise be sufficient. This is a
precaution founded on such clear principles, and now so well
understood in the United States, that it would be more than
superfluous to enlarge on it. I will barely remark, that as the
improbability of sinister combinations will be in proportion to the
dissimilarity in the genius of the two bodies, it must be politic to
distinguish them from each other by every circumstance which will
consist with a due harmony in all proper measures, and with the
genuine principles of republican government.
Secondly. The necessity of a senate is not less indicated
by the propensity of all single and numerous assemblies to yield to
the impulse of sudden and violent passions, and to be seduced by
factious leaders into intemperate and pernicious resolutions.
Examples on this subject might be cited without number; and from
proceedings within the United States, as well as from the history of
other nations. But a position that will not be contradicted, need
not be proved. All that need be remarked is, that a body which is
to correct this infirmity ought itself to be free from it, and
consequently ought to be less numerous. It ought, moreover, to
possess great firmness, and consequently ought to hold its authority
by a tenure of considerable duration.
Thirdly. Another defect to be supplied by a senate lies in
a want of due acquaintance with the objects and principles of
legislation. It is not possible that an assembly of men called for
the most part from pursuits of a private nature, continued in
appointment for a short time, and led by no permanent motive to
devote the intervals of public occupation to a study of the laws,
the affairs, and the comprehensive interests of their country,
should, if left wholly to themselves, escape a variety of important
errors in the exercise of their legislative trust. It may be
affirmed, on the best grounds, that no small share of the present
embarrassments of America is to be charged on the blunders of our
governments; and that these have proceeded from the heads rather
than the hearts of most of the authors of them. What indeed are all
the repealing, explaining, and amending laws, which fill and
disgrace our voluminous codes, but so many monuments of deficient
wisdom; so many impeachments exhibited by each succeeding against
each preceding session; so many admonitions to the people, of the
value of those aids which may be expected from a well-constituted
senate?
A good government implies two things: first, fidelity to the
object of government, which is the happiness of the people;
secondly, a knowledge of the means by which that object can be best
attained. Some governments are deficient in both these qualities;
most governments are deficient in the first. I scruple not to
assert, that in American governments too little attention has been
paid to the last. The federal Constitution avoids this error; and
what merits particular notice, it provides for the last in a mode
which increases the security for the first.
Fourthly. The mutability in the public councils arising
from a rapid succession of new members, however qualified they may
be, points out, in the strongest manner, the necessity of some
stable institution in the government. Every new election in the
States is found to change one half of the representatives. From
this change of men must proceed a change of opinions; and from a
change of opinions, a change of measures. But a continual change
even of good measures is inconsistent with every rule of prudence
and every prospect of success. The remark is verified in private
life, and becomes more just, as well as more important, in national
transactions.
To trace the mischievous effects of a mutable government would
fill a volume. I will hint a few only, each of which will be
perceived to be a source of innumerable others.
In the first place, it forfeits the respect and confidence of
other nations, and all the advantages connected with national
character. An individual who is observed to be inconstant to his
plans, or perhaps to carry on his affairs without any plan at all,
is marked at once, by all prudent people, as a speedy victim to his
own unsteadiness and folly. His more friendly neighbors may pity
him, but all will decline to connect their fortunes with his; and
not a few will seize the opportunity of making their fortunes out of
his. One nation is to another what one individual is to another;
with this melancholy distinction perhaps, that the former, with
fewer of the benevolent emotions than the latter, are under fewer
restraints also from taking undue advantage from the indiscretions
of each other. Every nation, consequently, whose affairs betray a
want of wisdom and stability, may calculate on every loss which can
be sustained from the more systematic policy of their wiser
neighbors. But the best instruction on this subject is unhappily
conveyed to America by the example of her own situation. She finds
that she is held in no respect by her friends; that she is the
derision of her enemies; and that she is a prey to every nation
which has an interest in speculating on her fluctuating councils and
embarrassed affairs.
The internal effects of a mutable policy are still more
calamitous. It poisons the blessing of liberty itself. It will be
of little avail to the people, that the laws are made by men of
their own choice, if the laws be so voluminous that they cannot be
read, or so incoherent that they cannot be understood; if they be
repealed or revised before they are promulgated, or undergo such
incessant changes that no man, who knows what the law is to-day, can
guess what it will be to-morrow. Law is defined to be a rule of
action; but how can that be a rule, which is little known, and less
fixed?
Another effect of public instability is the unreasonable
advantage it gives to the sagacious, the enterprising, and the
moneyed few over the industrious and uniformed mass of the people.
Every new regulation concerning commerce or revenue, or in any way
affecting the value of the different species of property, presents a
new harvest to those who watch the change, and can trace its
consequences; a harvest, reared not by themselves, but by the toils
and cares of the great body of their fellow-citizens. This is a
state of things in which it may be said with some truth that laws
are made for the FEW, not for the MANY.
In another point of view, great injury results from an unstable
government. The want of confidence in the public councils damps
every useful undertaking, the success and profit of which may depend
on a continuance of existing arrangements. What prudent merchant
will hazard his fortunes in any new branch of commerce when he knows
not but that his plans may be rendered unlawful before they can be
executed? What farmer or manufacturer will lay himself out for the
encouragement given to any particular cultivation or establishment,
when he can have no assurance that his preparatory labors and
advances will not render him a victim to an inconstant government?
In a word, no great improvement or laudable enterprise can go
forward which requires the auspices of a steady system of national
policy.
But the most deplorable effect of all is that diminution of
attachment and reverence which steals into the hearts of the people,
towards a political system which betrays so many marks of infirmity,
and disappoints so many of their flattering hopes. No government,
any more than an individual, will long be respected without being
truly respectable; nor be truly respectable, without possessing a
certain portion of order and stability.
PUBLIUS.
FEDERALIST. No. 63
The Senate Continued
For the Independent Journal.
HAMILTON OR MADISON
To the People of the State of New York:
A FIFTH desideratum, illustrating the utility of a senate, is
the want of a due sense of national character. Without a select and
stable member of the government, the esteem of foreign powers will
not only be forfeited by an unenlightened and variable policy,
proceeding from the causes already mentioned, but the national
councils will not possess that sensibility to the opinion of the
world, which is perhaps not less necessary in order to merit, than
it is to obtain, its respect and confidence.
An attention to the judgment of other nations is important to
every government for two reasons: the one is, that, independently
of the merits of any particular plan or measure, it is desirable, on
various accounts, that it should appear to other nations as the
offspring of a wise and honorable policy; the second is, that in
doubtful cases, particularly where the national councils may be
warped by some strong passion or momentary interest, the presumed or
known opinion of the impartial world may be the best guide that can
be followed. What has not America lost by her want of character
with foreign nations; and how many errors and follies would she not
have avoided, if the justice and propriety of her measures had, in
every instance, been previously tried by the light in which they
would probably appear to the unbiased part of mankind?
Yet however requisite a sense of national character may be, it
is evident that it can never be sufficiently possessed by a numerous
and changeable body. It can only be found in a number so small that
a sensible degree of the praise and blame of public measures may be
the portion of each individual; or in an assembly so durably
invested with public trust, that the pride and consequence of its
members may be sensibly incorporated with the reputation and
prosperity of the community. The half-yearly representatives of
Rhode Island would probably have been little affected in their
deliberations on the iniquitous measures of that State, by arguments
drawn from the light in which such measures would be viewed by
foreign nations, or even by the sister States; whilst it can
scarcely be doubted that if the concurrence of a select and stable
body had been necessary, a regard to national character alone would
have prevented the calamities under which that misguided people is
now laboring.
I add, as a SIXTH defect the want, in some important cases, of a
due responsibility in the government to the people, arising from
that frequency of elections which in other cases produces this
responsibility. This remark will, perhaps, appear not only new, but
paradoxical. It must nevertheless be acknowledged, when explained,
to be as undeniable as it is important.
Responsibility, in order to be reasonable, must be limited to
objects within the power of the responsible party, and in order to
be effectual, must relate to operations of that power, of which a
ready and proper judgment can be formed by the constituents. The
objects of government may be divided into two general classes: the
one depending on measures which have singly an immediate and
sensible operation; the other depending on a succession of
well-chosen and well-connected measures, which have a gradual and
perhaps unobserved operation. The importance of the latter
description to the collective and permanent welfare of every
country, needs no explanation. And yet it is evident that an
assembly elected for so short a term as to be unable to provide more
than one or two links in a chain of measures, on which the general
welfare may essentially depend, ought not to be answerable for the
final result, any more than a steward or tenant, engaged for one
year, could be justly made to answer for places or improvements
which could not be accomplished in less than half a dozen years.
Nor is it possible for the people to estimate the SHARE of
influence which their annual assemblies may respectively have on
events resulting from the mixed transactions of several years. It
is sufficiently difficult to preserve a personal responsibility in
the members of a NUMEROUS body, for such acts of the body as have an
immediate, detached, and palpable operation on its constituents.
The proper remedy for this defect must be an additional body in
the legislative department, which, having sufficient permanency to
provide for such objects as require a continued attention, and a
train of measures, may be justly and effectually answerable for the
attainment of those objects.
Thus far I have considered the circumstances which point out the
necessity of a well-constructed Senate only as they relate to the
representatives of the people. To a people as little blinded by
prejudice or corrupted by flattery as those whom I address, I shall
not scruple to add, that such an institution may be sometimes
necessary as a defense to the people against their own temporary
errors and delusions. As the cool and deliberate sense of the
community ought, in all governments, and actually will, in all free
governments, ultimately prevail over the views of its rulers; so
there are particular moments in public affairs when the people,
stimulated by some irregular passion, or some illicit advantage, or
misled by the artful misrepresentations of interested men, may call
for measures which they themselves will afterwards be the most ready
to lament and condemn. In these critical moments, how salutary will
be the interference of some temperate and respectable body of
citizens, in order to check the misguided career, and to suspend the
blow meditated by the people against themselves, until reason,
justice, and truth can regain their authority over the public mind?
What bitter anguish would not the people of Athens have often
escaped if their government had contained so provident a safeguard
against the tyranny of their own passions? Popular liberty might
then have escaped the indelible reproach of decreeing to the same
citizens the hemlock on one day and statues on the next.
It may be suggested, that a people spread over an extensive
region cannot, like the crowded inhabitants of a small district, be
subject to the infection of violent passions, or to the danger of
combining in pursuit of unjust measures. I am far from denying that
this is a distinction of peculiar importance. I have, on the
contrary, endeavored in a former paper to show, that it is one of
the principal recommendations of a confederated republic. At the
same time, this advantage ought not to be considered as superseding
the use of auxiliary precautions. It may even be remarked, that the
same extended situation, which will exempt the people of America
from some of the dangers incident to lesser republics, will expose
them to the inconveniency of remaining for a longer time under the
influence of those misrepresentations which the combined industry of
interested men may succeed in distributing among them.
It adds no small weight to all these considerations, to
recollect that history informs us of no long-lived republic which
had not a senate. Sparta, Rome, and Carthage are, in fact, the only
states to whom that character can be applied. In each of the two
first there was a senate for life. The constitution of the senate
in the last is less known. Circumstantial evidence makes it
probable that it was not different in this particular from the two
others. It is at least certain, that it had some quality or other
which rendered it an anchor against popular fluctuations; and that
a smaller council, drawn out of the senate, was appointed not only
for life, but filled up vacancies itself. These examples, though as
unfit for the imitation, as they are repugnant to the genius, of
America, are, notwithstanding, when compared with the fugitive and
turbulent existence of other ancient republics, very instructive
proofs of the necessity of some institution that will blend
stability with liberty. I am not unaware of the circumstances which
distinguish the American from other popular governments, as well
ancient as modern; and which render extreme circumspection
necessary, in reasoning from the one case to the other. But after
allowing due weight to this consideration, it may still be
maintained, that there are many points of similitude which render
these examples not unworthy of our attention. Many of the defects,
as we have seen, which can only be supplied by a senatorial
institution, are common to a numerous assembly frequently elected by
the people, and to the people themselves. There are others peculiar
to the former, which require the control of such an institution.
The people can never wilfully betray their own interests; but they
may possibly be betrayed by the representatives of the people; and
the danger will be evidently greater where the whole legislative
trust is lodged in the hands of one body of men, than where the
concurrence of separate and dissimilar bodies is required in every
public act.
The difference most relied on, between the American and other
republics, consists in the principle of representation; which is
the pivot on which the former move, and which is supposed to have
been unknown to the latter, or at least to the ancient part of them.
The use which has been made of this difference, in reasonings
contained in former papers, will have shown that I am disposed
neither to deny its existence nor to undervalue its importance. I
feel the less restraint, therefore, in observing, that the position
concerning the ignorance of the ancient governments on the subject
of representation, is by no means precisely true in the latitude
commonly given to it. Without entering into a disquisition which
here would be misplaced, I will refer to a few known facts, in
support of what I advance.
In the most pure democracies of Greece, many of the executive
functions were performed, not by the people themselves, but by
officers elected by the people, and REPRESENTING the people in their
EXECUTIVE capacity.
Prior to the reform of Solon, Athens was governed by nine
Archons, annually ELECTED BY THE PEOPLE AT LARGE. The degree of
power delegated to them seems to be left in great obscurity.
Subsequent to that period, we find an assembly, first of four, and
afterwards of six hundred members, annually ELECTED BY THE PEOPLE;
and PARTIALLY representing them in their LEGISLATIVE capacity,
since they were not only associated with the people in the function
of making laws, but had the exclusive right of originating
legislative propositions to the people. The senate of Carthage,
also, whatever might be its power, or the duration of its
appointment, appears to have been ELECTIVE by the suffrages of the
people. Similar instances might be traced in most, if not all the
popular governments of antiquity.
Lastly, in Sparta we meet with the Ephori, and in Rome with the
Tribunes; two bodies, small indeed in numbers, but annually ELECTED
BY THE WHOLE BODY OF THE PEOPLE, and considered as the
REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY
capacity. The Cosmi of Crete were also annually ELECTED BY THE
PEOPLE, and have been considered by some authors as an institution
analogous to those of Sparta and Rome, with this difference only,
that in the election of that representative body the right of
suffrage was communicated to a part only of the people.
From these facts, to which many others might be added, it is
clear that the principle of representation was neither unknown to
the ancients nor wholly overlooked in their political constitutions.
The true distinction between these and the American governments,
lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE
CAPACITY, from any share in the LATTER, and not in the TOTAL
EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the
administration of the FORMER. The distinction, however, thus
qualified, must be admitted to leave a most advantageous superiority
in favor of the United States. But to insure to this advantage its
full effect, we must be careful not to separate it from the other
advantage, of an extensive territory. For it cannot be believed,
that any form of representative government could have succeeded
within the narrow limits occupied by the democracies of Greece.
In answer to all these arguments, suggested by reason,
illustrated by examples, and enforced by our own experience, the
jealous adversary of the Constitution will probably content himself
with repeating, that a senate appointed not immediately by the
people, and for the term of six years, must gradually acquire a
dangerous pre-eminence in the government, and finally transform it
into a tyrannical aristocracy.
To this general answer, the general reply ought to be
sufficient, that liberty may be endangered by the abuses of liberty
as well as by the abuses of power; that there are numerous
instances of the former as well as of the latter; and that the
former, rather than the latter, are apparently most to be
apprehended by the United States. But a more particular reply may
be given.
Before such a revolution can be effected, the Senate, it is to
be observed, must in the first place corrupt itself; must next
corrupt the State legislatures; must then corrupt the House of
Representatives; and must finally corrupt the people at large. It
is evident that the Senate must be first corrupted before it can
attempt an establishment of tyranny. Without corrupting the State
legislatures, it cannot prosecute the attempt, because the
periodical change of members would otherwise regenerate the whole
body. Without exerting the means of corruption with equal success
on the House of Representatives, the opposition of that coequal
branch of the government would inevitably defeat the attempt; and
without corrupting the people themselves, a succession of new
representatives would speedily restore all things to their pristine
order. Is there any man who can seriously persuade himself that the
proposed Senate can, by any possible means within the compass of
human address, arrive at the object of a lawless ambition, through
all these obstructions?
If reason condemns the suspicion, the same sentence is
pronounced by experience. The constitution of Maryland furnishes
the most apposite example. The Senate of that State is elected, as
the federal Senate will be, indirectly by the people, and for a term
less by one year only than the federal Senate. It is distinguished,
also, by the remarkable prerogative of filling up its own vacancies
within the term of its appointment, and, at the same time, is not
under the control of any such rotation as is provided for the
federal Senate. There are some other lesser distinctions, which
would expose the former to colorable objections, that do not lie
against the latter. If the federal Senate, therefore, really
contained the danger which has been so loudly proclaimed, some
symptoms at least of a like danger ought by this time to have been
betrayed by the Senate of Maryland, but no such symptoms have
appeared. On the contrary, the jealousies at first entertained by
men of the same description with those who view with terror the
correspondent part of the federal Constitution, have been gradually
extinguished by the progress of the experiment; and the Maryland
constitution is daily deriving, from the salutary operation of this
part of it, a reputation in which it will probably not be rivalled
by that of any State in the Union.
But if any thing could silence the jealousies on this subject,
it ought to be the British example. The Senate there instead of
being elected for a term of six years, and of being unconfined to
particular families or fortunes, is an hereditary assembly of
opulent nobles. The House of Representatives, instead of being
elected for two years, and by the whole body of the people, is
elected for seven years, and, in very great proportion, by a very
small proportion of the people. Here, unquestionably, ought to be
seen in full display the aristocratic usurpations and tyranny which
are at some future period to be exemplified in the United States.
Unfortunately, however, for the anti-federal argument, the British
history informs us that this hereditary assembly has not been able
to defend itself against the continual encroachments of the House of
Representatives; and that it no sooner lost the support of the
monarch, than it was actually crushed by the weight of the popular
branch.
As far as antiquity can instruct us on this subject, its
examples support the reasoning which we have employed. In Sparta,
the Ephori, the annual representatives of the people, were found an
overmatch for the senate for life, continually gained on its
authority and finally drew all power into their own hands. The
Tribunes of Rome, who were the representatives of the people,
prevailed, it is well known, in almost every contest with the senate
for life, and in the end gained the most complete triumph over it.
The fact is the more remarkable, as unanimity was required in every
act of the Tribunes, even after their number was augmented to ten.
It proves the irresistible force possessed by that branch of a free
government, which has the people on its side. To these examples
might be added that of Carthage, whose senate, according to the
testimony of Polybius, instead of drawing all power into its vortex,
had, at the commencement of the second Punic War, lost almost the
whole of its original portion.
Besides the conclusive evidence resulting from this assemblage
of facts, that the federal Senate will never be able to transform
itself, by gradual usurpations, into an independent and aristocratic
body, we are warranted in believing, that if such a revolution
should ever happen from causes which the foresight of man cannot
guard against, the House of Representatives, with the people on
their side, will at all times be able to bring back the Constitution
to its primitive form and principles. Against the force of the
immediate representatives of the people, nothing will be able to
maintain even the constitutional authority of the Senate, but such a
display of enlightened policy, and attachment to the public good, as
will divide with that branch of the legislature the affections and
support of the entire body of the people themselves.
PUBLIUS.
FEDERALIST No. 64
The Powers of the Senate
From the New York Packet.
Friday, March 7, 1788.
JAY
To the People of the State of New York:
IT IS a just and not a new observation, that enemies to
particular persons, and opponents to particular measures, seldom
confine their censures to such things only in either as are worthy
of blame. Unless on this principle, it is difficult to explain the
motives of their conduct, who condemn the proposed Constitution in
the aggregate, and treat with severity some of the most
unexceptionable articles in it.
The second section gives power to the President, ``BY AND WITH
THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO
THIRDS OF THE SENATORS PRESENT CONCUR.''
The power of making treaties is an important one, especially as
it relates to war, peace, and commerce; and it should not be
delegated but in such a mode, and with such precautions, as will
afford the highest security that it will be exercised by men the
best qualified for the purpose, and in the manner most conducive to
the public good. The convention appears to have been attentive to
both these points: they have directed the President to be chosen by
select bodies of electors, to be deputed by the people for that
express purpose; and they have committed the appointment of
senators to the State legislatures. This mode has, in such cases,
vastly the advantage of elections by the people in their collective
capacity, where the activity of party zeal, taking the advantage of
the supineness, the ignorance, and the hopes and fears of the unwary
and interested, often places men in office by the votes of a small
proportion of the electors.
As the select assemblies for choosing the President, as well as
the State legislatures who appoint the senators, will in general be
composed of the most enlightened and respectable citizens, there is
reason to presume that their attention and their votes will be
directed to those men only who have become the most distinguished by
their abilities and virtue, and in whom the people perceive just
grounds for confidence. The Constitution manifests very particular
attention to this object. By excluding men under thirty-five from
the first office, and those under thirty from the second, it
confines the electors to men of whom the people have had time to
form a judgment, and with respect to whom they will not be liable to
be deceived by those brilliant appearances of genius and patriotism,
which, like transient meteors, sometimes mislead as well as dazzle.
If the observation be well founded, that wise kings will always be
served by able ministers, it is fair to argue, that as an assembly
of select electors possess, in a greater degree than kings, the
means of extensive and accurate information relative to men and
characters, so will their appointments bear at least equal marks of
discretion and discernment. The inference which naturally results
from these considerations is this, that the President and senators
so chosen will always be of the number of those who best understand
our national interests, whether considered in relation to the
several States or to foreign nations, who are best able to promote
those interests, and whose reputation for integrity inspires and
merits confidence. With such men the power of making treaties may
be safely lodged.
Although the absolute necessity of system, in the conduct of any
business, is universally known and acknowledged, yet the high
importance of it in national affairs has not yet become sufficiently
impressed on the public mind. They who wish to commit the power
under consideration to a popular assembly, composed of members
constantly coming and going in quick succession, seem not to
recollect that such a body must necessarily be inadequate to the
attainment of those great objects, which require to be steadily
contemplated in all their relations and circumstances, and which can
only be approached and achieved by measures which not only talents,
but also exact information, and often much time, are necessary to
concert and to execute. It was wise, therefore, in the convention
to provide, not only that the power of making treaties should be
committed to able and honest men, but also that they should continue
in place a sufficient time to become perfectly acquainted with our
national concerns, and to form and introduce a a system for the
management of them. The duration prescribed is such as will give
them an opportunity of greatly extending their political
information, and of rendering their accumulating experience more and
more beneficial to their country. Nor has the convention discovered
less prudence in providing for the frequent elections of senators in
such a way as to obviate the inconvenience of periodically
transferring those great affairs entirely to new men; for by
leaving a considerable residue of the old ones in place, uniformity
and order, as well as a constant succession of official information
will be preserved.
There are a few who will not admit that the affairs of trade and
navigation should be regulated by a system cautiously formed and
steadily pursued; and that both our treaties and our laws should
correspond with and be made to promote it. It is of much
consequence that this correspondence and conformity be carefully
maintained; and they who assent to the truth of this position will
see and confess that it is well provided for by making concurrence
of the Senate necessary both to treaties and to laws.
It seldom happens in the negotiation of treaties, of whatever
nature, but that perfect SECRECY and immediate DESPATCH are
sometimes requisite. These are cases where the most useful
intelligence may be obtained, if the persons possessing it can be
relieved from apprehensions of discovery. Those apprehensions will
operate on those persons whether they are actuated by mercenary or
friendly motives; and there doubtless are many of both
descriptions, who would rely on the secrecy of the President, but
who would not confide in that of the Senate, and still less in that
of a large popular Assembly. The convention have done well,
therefore, in so disposing of the power of making treaties, that
although the President must, in forming them, act by the advice and
consent of the Senate, yet he will be able to manage the business of
intelligence in such a manner as prudence may suggest.
They who have turned their attention to the affairs of men, must
have perceived that there are tides in them; tides very irregular
in their duration, strength, and direction, and seldom found to run
twice exactly in the same manner or measure. To discern and to
profit by these tides in national affairs is the business of those
who preside over them; and they who have had much experience on
this head inform us, that there frequently are occasions when days,
nay, even when hours, are precious. The loss of a battle, the death
of a prince, the removal of a minister, or other circumstances
intervening to change the present posture and aspect of affairs, may
turn the most favorable tide into a course opposite to our wishes.
As in the field, so in the cabinet, there are moments to be seized
as they pass, and they who preside in either should be left in
capacity to improve them. So often and so essentially have we
heretofore suffered from the want of secrecy and despatch, that the
Constitution would have been inexcusably defective, if no attention
had been paid to those objects. Those matters which in negotiations
usually require the most secrecy and the most despatch, are those
preparatory and auxiliary measures which are not otherwise important
in a national view, than as they tend to facilitate the attainment
of the objects of the negotiation. For these, the President will
find no difficulty to provide; and should any circumstance occur
which requires the advice and consent of the Senate, he may at any
time convene them. Thus we see that the Constitution provides that
our negotiations for treaties shall have every advantage which can
be derived from talents, information, integrity, and deliberate
investigations, on the one hand, and from secrecy and despatch on
the other.
But to this plan, as to most others that have ever appeared,
objections are contrived and urged.
Some are displeased with it, not on account of any errors or
defects in it, but because, as the treaties, when made, are to have
the force of laws, they should be made only by men invested with
legislative authority. These gentlemen seem not to consider that
the judgments of our courts, and the commissions constitutionally
given by our governor, are as valid and as binding on all persons
whom they concern, as the laws passed by our legislature. All
constitutional acts of power, whether in the executive or in the
judicial department, have as much legal validity and obligation as
if they proceeded from the legislature; and therefore, whatever
name be given to the power of making treaties, or however obligatory
they may be when made, certain it is, that the people may, with much
propriety, commit the power to a distinct body from the legislature,
the executive, or the judicial. It surely does not follow, that
because they have given the power of making laws to the legislature,
that therefore they should likewise give them the power to do every
other act of sovereignty by which the citizens are to be bound and
affected.
Others, though content that treaties should be made in the mode
proposed, are averse to their being the SUPREME laws of the land.
They insist, and profess to believe, that treaties like acts of
assembly, should be repealable at pleasure. This idea seems to be
new and peculiar to this country, but new errors, as well as new
truths, often appear. These gentlemen would do well to reflect that
a treaty is only another name for a bargain, and that it would be
impossible to find a nation who would make any bargain with us,
which should be binding on them ABSOLUTELY, but on us only so long
and so far as we may think proper to be bound by it. They who make
laws may, without doubt, amend or repeal them; and it will not be
disputed that they who make treaties may alter or cancel them; but
still let us not forget that treaties are made, not by only one of
the contracting parties, but by both; and consequently, that as the
consent of both was essential to their formation at first, so must
it ever afterwards be to alter or cancel them. The proposed
Constitution, therefore, has not in the least extended the
obligation of treaties. They are just as binding, and just as far
beyond the lawful reach of legislative acts now, as they will be at
any future period, or under any form of government.
However useful jealousy may be in republics, yet when like bile
in the natural, it abounds too much in the body politic, the eyes of
both become very liable to be deceived by the delusive appearances
which that malady casts on surrounding objects. From this cause,
probably, proceed the fears and apprehensions of some, that the
President and Senate may make treaties without an equal eye to the
interests of all the States. Others suspect that two thirds will
oppress the remaining third, and ask whether those gentlemen are
made sufficiently responsible for their conduct; whether, if they
act corruptly, they can be punished; and if they make
disadvantageous treaties, how are we to get rid of those treaties?
As all the States are equally represented in the Senate, and by
men the most able and the most willing to promote the interests of
their constituents, they will all have an equal degree of influence
in that body, especially while they continue to be careful in
appointing proper persons, and to insist on their punctual
attendance. In proportion as the United States assume a national
form and a national character, so will the good of the whole be more
and more an object of attention, and the government must be a weak
one indeed, if it should forget that the good of the whole can only
be promoted by advancing the good of each of the parts or members
which compose the whole. It will not be in the power of the
President and Senate to make any treaties by which they and their
families and estates will not be equally bound and affected with the
rest of the community; and, having no private interests distinct
from that of the nation, they will be under no temptations to
neglect the latter.
As to corruption, the case is not supposable. He must either
have been very unfortunate in his intercourse with the world, or
possess a heart very susceptible of such impressions, who can think
it probable that the President and two thirds of the Senate will
ever be capable of such unworthy conduct. The idea is too gross and
too invidious to be entertained. But in such a case, if it should
ever happen, the treaty so obtained from us would, like all other
fraudulent contracts, be null and void by the law of nations.
With respect to their responsibility, it is difficult to
conceive how it could be increased. Every consideration that can
influence the human mind, such as honor, oaths, reputations,
conscience, the love of country, and family affections and
attachments, afford security for their fidelity. In short, as the
Constitution has taken the utmost care that they shall be men of
talents and integrity, we have reason to be persuaded that the
treaties they make will be as advantageous as, all circumstances
considered, could be made; and so far as the fear of punishment and
disgrace can operate, that motive to good behavior is amply afforded
by the article on the subject of impeachments.
PUBLIUS.
FEDERALIST No. 65
The Powers of the Senate Continued
From the New York Packet.
Friday, March 7, 1788.
HAMILTON
To the People of the State of New York:
THE remaining powers which the plan of the convention allots to
the Senate, in a distinct capacity, are comprised in their
participation with the executive in the appointment to offices, and
in their judicial character as a court for the trial of impeachments.
As in the business of appointments the executive will be the
principal agent, the provisions relating to it will most properly be
discussed in the examination of that department. We will,
therefore, conclude this head with a view of the judicial character
of the Senate.
A well-constituted court for the trial of impeachments is an
object not more to be desired than difficult to be obtained in a
government wholly elective. The subjects of its jurisdiction are
those offenses which proceed from the misconduct of public men, or,
in other words, from the abuse or violation of some public trust.
They are of a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done
immediately to the society itself. The prosecution of them, for
this reason, will seldom fail to agitate the passions of the whole
community, and to divide it into parties more or less friendly or
inimical to the accused. In many cases it will connect itself with
the pre-existing factions, and will enlist all their animosities,
partialities, influence, and interest on one side or on the other;
and in such cases there will always be the greatest danger that the
decision will be regulated more by the comparative strength of
parties, than by the real demonstrations of innocence or guilt.
The delicacy and magnitude of a trust which so deeply concerns
the political reputation and existence of every man engaged in the
administration of public affairs, speak for themselves. The
difficulty of placing it rightly, in a government resting entirely
on the basis of periodical elections, will as readily be perceived,
when it is considered that the most conspicuous characters in it
will, from that circumstance, be too often the leaders or the tools
of the most cunning or the most numerous faction, and on this
account, can hardly be expected to possess the requisite neutrality
towards those whose conduct may be the subject of scrutiny.
The convention, it appears, thought the Senate the most fit
depositary of this important trust. Those who can best discern the
intrinsic difficulty of the thing, will be least hasty in condemning
that opinion, and will be most inclined to allow due weight to the
arguments which may be supposed to have produced it.
What, it may be asked, is the true spirit of the institution
itself? Is it not designed as a method of NATIONAL INQUEST into the
conduct of public men? If this be the design of it, who can so
properly be the inquisitors for the nation as the representatives of
the nation themselves? It is not disputed that the power of
originating the inquiry, or, in other words, of preferring the
impeachment, ought to be lodged in the hands of one branch of the
legislative body. Will not the reasons which indicate the propriety
of this arrangement strongly plead for an admission of the other
branch of that body to a share of the inquiry? The model from which
the idea of this institution has been borrowed, pointed out that
course to the convention. In Great Britain it is the province of
the House of Commons to prefer the impeachment, and of the House of
Lords to decide upon it. Several of the State constitutions have
followed the example. As well the latter, as the former, seem to
have regarded the practice of impeachments as a bridle in the hands
of the legislative body upon the executive servants of the
government. Is not this the true light in which it ought to be
regarded?
Where else than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent? What other
body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION,
to preserve, unawed and uninfluenced, the necessary impartiality
between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE
PEOPLE, HIS ACCUSERS?
Could the Supreme Court have been relied upon as answering this
description? It is much to be doubted, whether the members of that
tribunal would at all times be endowed with so eminent a portion of
fortitude, as would be called for in the execution of so difficult a
task; and it is still more to be doubted, whether they would
possess the degree of credit and authority, which might, on certain
occasions, be indispensable towards reconciling the people to a
decision that should happen to clash with an accusation brought by
their immediate representatives. A deficiency in the first, would
be fatal to the accused; in the last, dangerous to the public
tranquillity. The hazard in both these respects, could only be
avoided, if at all, by rendering that tribunal more numerous than
would consist with a reasonable attention to economy. The necessity
of a numerous court for the trial of impeachments, is equally
dictated by the nature of the proceeding. This can never be tied
down by such strict rules, either in the delineation of the offense
by the prosecutors, or in the construction of it by the judges, as
in common cases serve to limit the discretion of courts in favor of
personal security. There will be no jury to stand between the
judges who are to pronounce the sentence of the law, and the party
who is to receive or suffer it. The awful discretion which a court
of impeachments must necessarily have, to doom to honor or to infamy
the most confidential and the most distinguished characters of the
community, forbids the commitment of the trust to a small number of
persons.
These considerations seem alone sufficient to authorize a
conclusion, that the Supreme Court would have been an improper
substitute for the Senate, as a court of impeachments. There
remains a further consideration, which will not a little strengthen
this conclusion. It is this: The punishment which may be the
consequence of conviction upon impeachment, is not to terminate the
chastisement of the offender. After having been sentenced to a
prepetual ostracism from the esteem and confidence, and honors and
emoluments of his country, he will still be liable to prosecution
and punishment in the ordinary course of law. Would it be proper
that the persons who had disposed of his fame, and his most valuable
rights as a citizen in one trial, should, in another trial, for the
same offense, be also the disposers of his life and his fortune?
Would there not be the greatest reason to apprehend, that error, in
the first sentence, would be the parent of error in the second
sentence? That the strong bias of one decision would be apt to
overrule the influence of any new lights which might be brought to
vary the complexion of another decision? Those who know anything of
human nature, will not hesitate to answer these questions in the
affirmative; and will be at no loss to perceive, that by making the
same persons judges in both cases, those who might happen to be the
objects of prosecution would, in a great measure, be deprived of the
double security intended them by a double trial. The loss of life
and estate would often be virtually included in a sentence which, in
its terms, imported nothing more than dismission from a present, and
disqualification for a future, office. It may be said, that the
intervention of a jury, in the second instance, would obviate the
danger. But juries are frequently influenced by the opinions of
judges. They are sometimes induced to find special verdicts, which
refer the main question to the decision of the court. Who would be
willing to stake his life and his estate upon the verdict of a jury
acting under the auspices of judges who had predetermined his guilt?
Would it have been an improvement of the plan, to have united
the Supreme Court with the Senate, in the formation of the court of
impeachments? This union would certainly have been attended with
several advantages; but would they not have been overbalanced by
the signal disadvantage, already stated, arising from the agency of
the same judges in the double prosecution to which the offender
would be liable? To a certain extent, the benefits of that union
will be obtained from making the chief justice of the Supreme Court
the president of the court of impeachments, as is proposed to be
done in the plan of the convention; while the inconveniences of an
entire incorporation of the former into the latter will be
substantially avoided. This was perhaps the prudent mean. I
forbear to remark upon the additional pretext for clamor against the
judiciary, which so considerable an augmentation of its authority
would have afforded.
Would it have been desirable to have composed the court for the
trial of impeachments, of persons wholly distinct from the other
departments of the government? There are weighty arguments, as well
against, as in favor of, such a plan. To some minds it will not
appear a trivial objection, that it could tend to increase the
complexity of the political machine, and to add a new spring to the
government, the utility of which would at best be questionable. But
an objection which will not be thought by any unworthy of attention,
is this: a court formed upon such a plan, would either be attended
with a heavy expense, or might in practice be subject to a variety
of casualties and inconveniences. It must either consist of
permanent officers, stationary at the seat of government, and of
course entitled to fixed and regular stipends, or of certain
officers of the State governments to be called upon whenever an
impeachment was actually depending. It will not be easy to imagine
any third mode materially different, which could rationally be
proposed. As the court, for reasons already given, ought to be
numerous, the first scheme will be reprobated by every man who can
compare the extent of the public wants with the means of supplying
them. The second will be espoused with caution by those who will
seriously consider the difficulty of collecting men dispersed over
the whole Union; the injury to the innocent, from the
procrastinated determination of the charges which might be brought
against them; the advantage to the guilty, from the opportunities
which delay would afford to intrigue and corruption; and in some
cases the detriment to the State, from the prolonged inaction of men
whose firm and faithful execution of their duty might have exposed
them to the persecution of an intemperate or designing majority in
the House of Representatives. Though this latter supposition may
seem harsh, and might not be likely often to be verified, yet it
ought not to be forgotten that the demon of faction will, at certain
seasons, extend his sceptre over all numerous bodies of men.
But though one or the other of the substitutes which have been
examined, or some other that might be devised, should be thought
preferable to the plan in this respect, reported by the convention,
it will not follow that the Constitution ought for this reason to be
rejected. If mankind were to resolve to agree in no institution of
government, until every part of it had been adjusted to the most
exact standard of perfection, society would soon become a general
scene of anarchy, and the world a desert. Where is the standard of
perfection to be found? Who will undertake to unite the discordant
opinions of a whole commuity, in the same judgment of it; and to
prevail upon one conceited projector to renounce his INFALLIBLE
criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR?
To answer the purpose of the adversaries of the Constitution, they
ought to prove, not merely that particular provisions in it are not
the best which might have been imagined, but that the plan upon the
whole is bad and pernicious.
PUBLIUS.
FEDERALIST No. 66
Objections to the Power of the Senate To Set as a Court for
Impeachments Further Considered
From the New York Packet.
Tuesday, March 11, 1788.
HAMILTON
To the People of the State of New York:
A REVIEW of the principal objections that have appeared against
the proposed court for the trial of impeachments, will not
improbably eradicate the remains of any unfavorable impressions
which may still exist in regard to this matter.
The FIRST of these objections is, that the provision in question
confounds legislative and judiciary authorities in the same body, in
violation of that important and wellestablished maxim which requires
a separation between the different departments of power. The true
meaning of this maxim has been discussed and ascertained in another
place, and has been shown to be entirely compatible with a partial
intermixture of those departments for special purposes, preserving
them, in the main, distinct and unconnected. This partial
intermixture is even, in some cases, not only proper but necessary
to the mutual defense of the several members of the government
against each other. An absolute or qualified negative in the
executive upon the acts of the legislative body, is admitted, by the
ablest adepts in political science, to be an indispensable barrier
against the encroachments of the latter upon the former. And it
may, perhaps, with no less reason be contended, that the powers
relating to impeachments are, as before intimated, an essential
check in the hands of that body upon the encroachments of the
executive. The division of them between the two branches of the
legislature, assigning to one the right of accusing, to the other
the right of judging, avoids the inconvenience of making the same
persons both accusers and judges; and guards against the danger of
persecution, from the prevalency of a factious spirit in either of
those branches. As the concurrence of two thirds of the Senate will
be requisite to a condemnation, the security to innocence, from this
additional circumstance, will be as complete as itself can desire.
It is curious to observe, with what vehemence this part of the
plan is assailed, on the principle here taken notice of, by men who
profess to admire, without exception, the constitution of this
State; while that constitution makes the Senate, together with the
chancellor and judges of the Supreme Court, not only a court of
impeachments, but the highest judicatory in the State, in all
causes, civil and criminal. The proportion, in point of numbers, of
the chancellor and judges to the senators, is so inconsiderable,
that the judiciary authority of New York, in the last resort, may,
with truth, be said to reside in its Senate. If the plan of the
convention be, in this respect, chargeable with a departure from the
celebrated maxim which has been so often mentioned, and seems to be
so little understood, how much more culpable must be the
constitution of New York?1
A SECOND objection to the Senate, as a court of impeachments,
is, that it contributes to an undue accumulation of power in that
body, tending to give to the government a countenance too
aristocratic. The Senate, it is observed, is to have concurrent
authority with the Executive in the formation of treaties and in the
appointment to offices: if, say the objectors, to these
prerogatives is added that of deciding in all cases of impeachment,
it will give a decided predominancy to senatorial influence. To an
objection so little precise in itself, it is not easy to find a very
precise answer. Where is the measure or criterion to which we can
appeal, for determining what will give the Senate too much, too
little, or barely the proper degree of influence? Will it not be
more safe, as well as more simple, to dismiss such vague and
uncertain calculations, to examine each power by itself, and to
decide, on general principles, where it may be deposited with most
advantage and least inconvenience?
If we take this course, it will lead to a more intelligible, if
not to a more certain result. The disposition of the power of
making treaties, which has obtained in the plan of the convention,
will, then, if I mistake not, appear to be fully justified by the
considerations stated in a former number, and by others which will
occur under the next head of our inquiries. The expediency of the
junction of the Senate with the Executive, in the power of
appointing to offices, will, I trust, be placed in a light not less
satisfactory, in the disquisitions under the same head. And I
flatter myself the observations in my last paper must have gone no
inconsiderable way towards proving that it was not easy, if
practicable, to find a more fit receptacle for the power of
determining impeachments, than that which has been chosen. If this
be truly the case, the hypothetical dread of the too great weight of
the Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in
the remarks applied to the duration in office prescribed for the
senators. It was by them shown, as well on the credit of historical
examples, as from the reason of the thing, that the most POPULAR
branch of every government, partaking of the republican genius, by
being generally the favorite of the people, will be as generally a
full match, if not an overmatch, for every other member of the
Government.
But independent of this most active and operative principle, to
secure the equilibrium of the national House of Representatives, the
plan of the convention has provided in its favor several important
counterpoises to the additional authorities to be conferred upon the
Senate. The exclusive privilege of originating money bills will
belong to the House of Representatives. The same house will possess
the sole right of instituting impeachments: is not this a complete
counterbalance to that of determining them? The same house will be
the umpire in all elections of the President, which do not unite the
suffrages of a majority of the whole number of electors; a case
which it cannot be doubted will sometimes, if not frequently, happen.
The constant possibility of the thing must be a fruitful source of
influence to that body. The more it is contemplated, the more
important will appear this ultimate though contingent power, of
deciding the competitions of the most illustrious citizens of the
Union, for the first office in it. It would not perhaps be rash to
predict, that as a mean of influence it will be found to outweigh
all the peculiar attributes of the Senate.
A THIRD objection to the Senate as a court of impeachments, is
drawn from the agency they are to have in the appointments to office.
It is imagined that they would be too indulgent judges of the
conduct of men, in whose official creation they had participated.
The principle of this objection would condemn a practice, which is
to be seen in all the State governments, if not in all the
governments with which we are acquainted: I mean that of rendering
those who hold offices during pleasure, dependent on the pleasure of
those who appoint them. With equal plausibility might it be alleged
in this case, that the favoritism of the latter would always be an
asylum for the misbehavior of the former. But that practice, in
contradiction to this principle, proceeds upon the presumption, that
the responsibility of those who appoint, for the fitness and
competency of the persons on whom they bestow their choice, and the
interest they will have in the respectable and prosperous
administration of affairs, will inspire a sufficient disposition to
dismiss from a share in it all such who, by their conduct, shall
have proved themselves unworthy of the confidence reposed in them.
Though facts may not always correspond with this presumption, yet
if it be, in the main, just, it must destroy the supposition that
the Senate, who will merely sanction the choice of the Executive,
should feel a bias, towards the objects of that choice, strong
enough to blind them to the evidences of guilt so extraordinary, as
to have induced the representatives of the nation to become its
accusers.
If any further arguments were necessary to evince the
improbability of such a bias, it might be found in the nature of the
agency of the Senate in the business of appointments.
It will be the office of the President to NOMINATE, and, with
the advice and consent of the Senate, to APPOINT. There will, of
course, be no exertion of CHOICE on the part of the Senate. They
may defeat one choice of the Executive, and oblige him to make
another; but they cannot themselves CHOOSE, they can only ratify or
reject the choice of the President. They might even entertain a
preference to some other person, at the very moment they were
assenting to the one proposed, because there might be no positive
ground of opposition to him; and they could not be sure, if they
withheld their assent, that the subsequent nomination would fall
upon their own favorite, or upon any other person in their
estimation more meritorious than the one rejected. Thus it could
hardly happen, that the majority of the Senate would feel any other
complacency towards the object of an appointment than such as the
appearances of merit might inspire, and the proofs of the want of it
destroy.
A FOURTH objection to the Senate in the capacity of a court of
impeachments, is derived from its union with the Executive in the
power of making treaties. This, it has been said, would constitute
the senators their own judges, in every case of a corrupt or
perfidious execution of that trust. After having combined with the
Executive in betraying the interests of the nation in a ruinous
treaty, what prospect, it is asked, would there be of their being
made to suffer the punishment they would deserve, when they were
themselves to decide upon the accusation brought against them for
the treachery of which they have been guilty?
This objection has been circulated with more earnestness and
with greater show of reason than any other which has appeared
against this part of the plan; and yet I am deceived if it does not
rest upon an erroneous foundation.
The security essentially intended by the Constitution against
corruption and treachery in the formation of treaties, is to be
sought for in the numbers and characters of those who are to make
them. The JOINT AGENCY of the Chief Magistrate of the Union, and of
two thirds of the members of a body selected by the collective
wisdom of the legislatures of the several States, is designed to be
the pledge for the fidelity of the national councils in this
particular. The convention might with propriety have meditated the
punishment of the Executive, for a deviation from the instructions
of the Senate, or a want of integrity in the conduct of the
negotiations committed to him; they might also have had in view the
punishment of a few leading individuals in the Senate, who should
have prostituted their influence in that body as the mercenary
instruments of foreign corruption: but they could not, with more or
with equal propriety, have contemplated the impeachment and
punishment of two thirds of the Senate, consenting to an improper
treaty, than of a majority of that or of the other branch of the
national legislature, consenting to a pernicious or unconstitutional
law, a principle which, I believe, has never been admitted into any
government. How, in fact, could a majority in the House of
Representatives impeach themselves? Not better, it is evident, than
two thirds of the Senate might try themselves. And yet what reason
is there, that a majority of the House of Representatives,
sacrificing the interests of the society by an unjust and tyrannical
act of legislation, should escape with impunity, more than two
thirds of the Senate, sacrificing the same interests in an injurious
treaty with a foreign power? The truth is, that in all such cases
it is essential to the freedom and to the necessary independence of
the deliberations of the body, that the members of it should be
exempt from punishment for acts done in a collective capacity; and
the security to the society must depend on the care which is taken
to confide the trust to proper hands, to make it their interest to
execute it with fidelity, and to make it as difficult as possible
for them to combine in any interest opposite to that of the public
good.
So far as might concern the misbehavior of the Executive in
perverting the instructions or contravening the views of the Senate,
we need not be apprehensive of the want of a disposition in that
body to punish the abuse of their confidence or to vindicate their
own authority. We may thus far count upon their pride, if not upon
their virtue. And so far even as might concern the corruption of
leading members, by whose arts and influence the majority may have
been inveigled into measures odious to the community, if the proofs
of that corruption should be satisfactory, the usual propensity of
human nature will warrant us in concluding that there would be
commonly no defect of inclination in the body to divert the public
resentment from themselves by a ready sacrifice of the authors of
their mismanagement and disgrace.
PUBLIUS.
In that of New Jersey, also, the final judiciary authority is in
a branch of the legislature. In New Hampshire, Massachusetts,
Pennsylvanis, and South Carolina, one branch of the legislature is
the court for the trial of impeachments.
FEDERALIST No. 67
The Executive Department
From the New York Packet.
Tuesday, March 11, 1788.
HAMILTON
To the People of the State of New York:
THE constitution of the executive department of the proposed
government, claims next our attention.
There is hardly any part of the system which could have been
atten ed with greater difficulty in the arrangement of it than this;
and there is, perhaps, none which has been inveighed against with
less candor or criticised with less judgment.
Here the writers against the Constitution seem to have taken
pains to signalize their talent of misrepresentation. Calculating
upon the aversion of the people to monarchy, they have endeavored to
enlist all their jealousies and apprehensions in opposition to the
intended President of the United States; not merely as the embryo,
but as the full-grown progeny, of that detested parent. To
establish the pretended affinity, they have not scrupled to draw
resources even from the regions of fiction. The authorities of a
magistrate, in few instances greater, in some instances less, than
those of a governor of New York, have been magnified into more than
royal prerogatives. He has been decorated with attributes superior
in dignity and splendor to those of a king of Great Britain. He has
been shown to us with the diadem sparkling on his brow and the
imperial purple flowing in his train. He has been seated on a
throne surrounded with minions and mistresses, giving audience to
the envoys of foreign potentates, in all the supercilious pomp of
majesty. The images of Asiatic despotism and voluptuousness have
scarcely been wanting to crown the exaggerated scene. We have been
taught to tremble at the terrific visages of murdering janizaries,
and to blush at the unveiled mysteries of a future seraglio.
Attempts so extravagant as these to disfigure or, it might
rather be said, to metamorphose the object, render it necessary to
take an accurate view of its real nature and form: in order as well
to ascertain its true aspect and genuine appearance, as to unmask
the disingenuity and expose the fallacy of the counterfeit
resemblances which have been so insidiously, as well as
industriously, propagated.
In the execution of this task, there is no man who would not
find it an arduous effort either to behold with moderation, or to
treat with seriousness, the devices, not less weak than wicked,
which have been contrived to pervert the public opinion in relation
to the subject. They so far exceed the usual though unjustifiable
licenses of party artifice, that even in a disposition the most
candid and tolerant, they must force the sentiments which favor an
indulgent construction of the conduct of political adversaries to
give place to a voluntary and unreserved indignation. It is
impossible not to bestow the imputation of deliberate imposture and
deception upon the gross pretense of a similitude between a king of
Great Britain and a magistrate of the character marked out for that
of the President of the United States. It is still more impossible
to withhold that imputation from the rash and barefaced expedients
which have been employed to give success to the attempted imposition.
In one instance, which I cite as a sample of the general spirit,
the temerity has proceeded so far as to ascribe to the President of
the United States a power which by the instrument reported is
EXPRESSLY allotted to the Executives of the individual States. I
mean the power of filling casual vacancies in the Senate.
This bold experiment upon the discernment of his countrymen has
been hazarded by a writer who (whatever may be his real merit) has
had no inconsiderable share in the applauses of his party1; and
who, upon this false and unfounded suggestion, has built a series of
observations equally false and unfounded. Let him now be confronted
with the evidence of the fact, and let him, if he be able, justify
or extenuate the shameful outrage he has offered to the dictates of
truth and to the rules of fair dealing.
The second clause of the second section of the second article
empowers the President of the United States ``to nominate, and by
and with the advice and consent of the Senate, to appoint
ambassadors, other public ministers and consuls, judges of the
Supreme Court, and all other OFFICERS of United States whose
appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and
WHICH SHALL BE ESTABLISHED BY LAW.'' Immediately after this clause
follows another in these words: ``The President shall have power to
fill up ?? VACANCIES that may happen DURING THE RECESS OF THE
SENATE, by granting commissions which shall EXPIRE AT THE END OF
THEIR NEXT SESSION.'' It is from this last provision that the
pretended power of the President to fill vacancies in the Senate has
been deduced. A slight attention to the connection of the clauses,
and to the obvious meaning of the terms, will satisfy us that the
deduction is not even colorable.
The first of these two clauses, it is clear, only provides a
mode for appointing such officers, ``whose appointments are NOT
OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE
ESTABLISHED BY LAW''; of course it cannot extend to the
appointments of senators, whose appointments are OTHERWISE PROVIDED
FOR in the Constitution2, and who are ESTABLISHED BY THE
CONSTITUTION, and will not require a future establishment by law.
This position will hardly be contested.
The last of these two clauses, it is equally clear, cannot be
understood to comprehend the power of filling vacancies in the
Senate, for the following reasons: First. The relation in
which that clause stands to the other, which declares the general
mode of appointing officers of the United States, denotes it to be
nothing more than a supplement to the other, for the purpose of
establishing an auxiliary method of appointment, in cases to which
the general method was inadequate. The ordinary power of
appointment is confined to the President and Senate JOINTLY, and can
therefore only be exercised during the session of the Senate; but
as it would have been improper to oblige this body to be continually
in session for the appointment of officers and as vacancies might
happen IN THEIR RECESS, which it might be necessary for the public
service to fill without delay, the succeeding clause is evidently
intended to authorize the President, SINGLY, to make temporary
appointments ``during the recess of the Senate, by granting
commissions which shall expire at the end of their next session.''
Secondly. If this clause is to be considered as supplementary
to the one which precedes, the VACANCIES of which it speaks must be
construed to relate to the ``officers'' described in the preceding
one; and this, we have seen, excludes from its description the
members of the Senate. Thirdly. The time within which the
power is to operate, ``during the recess of the Senate,'' and the
duration of the appointments, ``to the end of the next session'' of
that body, conspire to elucidate the sense of the provision, which,
if it had been intended to comprehend senators, would naturally have
referred the temporary power of filling vacancies to the recess of
the State legislatures, who are to make the permanent appointments,
and not to the recess of the national Senate, who are to have no
concern in those appointments; and would have extended the duration
in office of the temporary senators to the next session of the
legislature of the State, in whose representation the vacancies had
happened, instead of making it to expire at the end of the ensuing
session of the national Senate. The circumstances of the body
authorized to make the permanent appointments would, of course, have
governed the modification of a power which related to the temporary
appointments; and as the national Senate is the body, whose
situation is alone contemplated in the clause upon which the
suggestion under examination has been founded, the vacancies to
which it alludes can only be deemed to respect those officers in
whose appointment that body has a concurrent agency with the
President. But lastly, the first and second clauses of the
third section of the first article, not only obviate all possibility
of doubt, but destroy the pretext of misconception. The former
provides, that ``the Senate of the United States shall be composed
of two Senators from each State, chosen BY THE LEGISLATURE THEREOF
for six years''; and the latter directs, that, ``if vacancies in
that body should happen by resignation or otherwise, DURING THE
RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may
make temporary appointments until the NEXT MEETING OF THE
LEGISLATURE, which shall then fill such vacancies.'' Here is an
express power given, in clear and unambiguous terms, to the State
Executives, to fill casual vacancies in the Senate, by temporary
appointments; which not only invalidates the supposition, that the
clause before considered could have been intended to confer that
power upon the President of the United States, but proves that this
supposition, destitute as it is even of the merit of plausibility,
must have originated in an intention to deceive the people, too
palpable to be obscured by sophistry, too atrocious to be palliated
by hypocrisy.
I have taken the pains to select this instance of
misrepresentation, and to place it in a clear and strong light, as
an unequivocal proof of the unwarrantable arts which are practiced
to prevent a fair and impartial judgment of the real merits of the
Constitution submitted to the consideration of the people. Nor have
I scrupled, in so flagrant a case, to allow myself a severity of
animadversion little congenial with the general spirit of these
papers. I hesitate not to submit it to the decision of any candid
and honest adversary of the proposed government, whether language
can furnish epithets of too much asperity, for so shameless and so
prostitute an attempt to impose on the citizens of America.
PUBLIUS.
1 See CATO, No. V.
2 Article I, section 3, clause I.
FEDERALIST No. 68
The Mode of Electing the President
From the New York Packet.
Friday, March 14, 1788.
HAMILTON
To the People of the State of New York:
THE mode of appointment of the Chief Magistrate of the United
States is almost the only part of the system, of any consequence,
which has escaped without severe censure, or which has received the
slightest mark of approbation from its opponents. The most
plausible of these, who has appeared in print, has even deigned to
admit that the election of the President is pretty well
guarded.1 I venture somewhat further, and hesitate not to
affirm, that if the manner of it be not perfect, it is at least
excellent. It unites in an eminent degree all the advantages, the
union of which was to be wished for.
It was desirable that the sense of the people should operate in
the choice of the person to whom so important a trust was to be
confided. This end will be answered by committing the right of
making it, not to any preestablished body, but to men chosen by the
people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be
made by men most capable of analyzing the qualities adapted to the
station, and acting under circumstances favorable to deliberation,
and to a judicious combination of all the reasons and inducements
which were proper to govern their choice. A small number of
persons, selected by their fellow-citizens from the general mass,
will be most likely to possess the information and discernment
requisite to such complicated investigations.
It was also peculiarly desirable to afford as little opportunity
as possible to tumult and disorder. This evil was not least to be
dreaded in the election of a magistrate, who was to have so
important an agency in the administration of the government as the
President of the United States. But the precautions which have been
so happily concerted in the system under consideration, promise an
effectual security against this mischief. The choice of SEVERAL, to
form an intermediate body of electors, will be much less apt to
convulse the community with any extraordinary or violent movements,
than the choice of ONE who was himself to be the final object of the
public wishes. And as the electors, chosen in each State, are to
assemble and vote in the State in which they are chosen, this
detached and divided situation will expose them much less to heats
and ferments, which might be communicated from them to the people,
than if they were all to be convened at one time, in one place.
Nothing was more to be desired than that every practicable
obstacle should be opposed to cabal, intrigue, and corruption.
These most deadly adversaries of republican government might
naturally have been expected to make their approaches from more than
one querter, but chiefly from the desire in foreign powers to gain
an improper ascendant in our councils. How could they better
gratify this, than by raising a creature of their own to the chief
magistracy of the Union? But the convention have guarded against
all danger of this sort, with the most provident and judicious
attention. They have not made the appointment of the President to
depend on any preexisting bodies of men, who might be tampered with
beforehand to prostitute their votes; but they have referred it in
the first instance to an immediate act of the people of America, to
be exerted in the choice of persons for the temporary and sole
purpose of making the appointment. And they have excluded from
eligibility to this trust, all those who from situation might be
suspected of too great devotion to the President in office. No
senator, representative, or other person holding a place of trust or
profit under the United States, can be of the numbers of the
electors. Thus without corrupting the body of the people, the
immediate agents in the election will at least enter upon the task
free from any sinister bias. Their transient existence, and their
detached situation, already taken notice of, afford a satisfactory
prospect of their continuing so, to the conclusion of it. The
business of corruption, when it is to embrace so considerable a
number of men, requires time as well as means. Nor would it be
found easy suddenly to embark them, dispersed as they would be over
thirteen States, in any combinations founded upon motives, which
though they could not properly be denominated corrupt, might yet be
of a nature to mislead them from their duty.
Another and no less important desideratum was, that the
Executive should be independent for his continuance in office on all
but the people themselves. He might otherwise be tempted to
sacrifice his duty to his complaisance for those whose favor was
necessary to the duration of his official consequence. This
advantage will also be secured, by making his re-election to depend
on a special body of representatives, deputed by the society for the
single purpose of making the important choice.
All these advantages will happily combine in the plan devised by
the convention; which is, that the people of each State shall
choose a number of persons as electors, equal to the number of
senators and representatives of such State in the national
government, who shall assemble within the State, and vote for some
fit person as President. Their votes, thus given, are to be
transmitted to the seat of the national government, and the person
who may happen to have a majority of the whole number of votes will
be the President. But as a majority of the votes might not always
happen to centre in one man, and as it might be unsafe to permit
less than a majority to be conclusive, it is provided that, in such
a contingency, the House of Representatives shall select out of the
candidates who shall have the five highest number of votes, the man
who in their opinion may be best qualified for the office.
The process of election affords a moral certainty, that the
office of President will never fall to the lot of any man who is not
in an eminent degree endowed with the requisite qualifications.
Talents for low intrigue, and the little arts of popularity, may
alone suffice to elevate a man to the first honors in a single
State; but it will require other talents, and a different kind of
merit, to establish him in the esteem and confidence of the whole
Union, or of so considerable a portion of it as would be necessary
to make him a successful candidate for the distinguished office of
President of the United States. It will not be too strong to say,
that there will be a constant probability of seeing the station
filled by characters pre-eminent for ability and virtue. And this
will be thought no inconsiderable recommendation of the
Constitution, by those who are able to estimate the share which the
executive in every government must necessarily have in its good or
ill administration. Though we cannot acquiesce in the political
heresy of the poet who says: ``For forms of government let fools
contest That which is best administered is best,''
yet we may safely pronounce, that the true test of a good
government is its aptitude and tendency to produce a good
administration.
The Vice-President is to be chosen in the same manner with the
President; with this difference, that the Senate is to do, in
respect to the former, what is to be done by the House of
Representatives, in respect to the latter.
The appointment of an extraordinary person, as Vice-President,
has been objected to as superfluous, if not mischievous. It has
been alleged, that it would have been preferable to have authorized
the Senate to elect out of their own body an officer answering that
description. But two considerations seem to justify the ideas of
the convention in this respect. One is, that to secure at all times
the possibility of a definite resolution of the body, it is
necessary that the President should have only a casting vote. And
to take the senator of any State from his seat as senator, to place
him in that of President of the Senate, would be to exchange, in
regard to the State from which he came, a constant for a contingent
vote. The other consideration is, that as the Vice-President may
occasionally become a substitute for the President, in the supreme
executive magistracy, all the reasons which recommend the mode of
election prescribed for the one, apply with great if not with equal
force to the manner of appointing the other. It is remarkable that
in this, as in most other instances, the objection which is made
would lie against the constitution of this State. We have a
Lieutenant-Governor, chosen by the people at large, who presides in
the Senate, and is the constitutional substitute for the Governor,
in casualties similar to those which would authorize the
Vice-President to exercise the authorities and discharge the duties
of the President.
PUBLIUS.
1 Vide FEDERAL FARMER.
FEDERALIST No. 69
The Real Character of the Executive
From the New York Packet.
Friday, March 14, 1788.
HAMILTON
To the People of the State of New York:
I PROCEED now to trace the real characters of the proposed
Executive, as they are marked out in the plan of the convention.
This will serve to place in a strong light the unfairness of the
representations which have been made in regard to it.
The first thing which strikes our attention is, that the
executive authority, with few exceptions, is to be vested in a
single magistrate. This will scarcely, however, be considered as a
point upon which any comparison can be grounded; for if, in this
particular, there be a resemblance to the king of Great Britain,
there is not less a resemblance to the Grand Seignior, to the khan
of Tartary, to the Man of the Seven Mountains, or to the governor of
New York.
That magistrate is to be elected for FOUR years; and is to be
re-eligible as often as the people of the United States shall think
him worthy of their confidence. In these circumstances there is a
total dissimilitude between HIM and a king of Great Britain, who is
an HEREDITARY monarch, possessing the crown as a patrimony
descendible to his heirs forever; but there is a close analogy
between HIM and a governor of New York, who is elected for THREE
years, and is re-eligible without limitation or intermission. If we
consider how much less time would be requisite for establishing a
dangerous influence in a single State, than for establishing a like
influence throughout the United States, we must conclude that a
duration of FOUR years for the Chief Magistrate of the Union is a
degree of permanency far less to be dreaded in that office, than a
duration of THREE years for a corresponding office in a single State.
The President of the United States would be liable to be
impeached, tried, and, upon conviction of treason, bribery, or other
high crimes or misdemeanors, removed from office; and would
afterwards be liable to prosecution and punishment in the ordinary
course of law. The person of the king of Great Britain is sacred
and inviolable; there is no constitutional tribunal to which he is
amenable; no punishment to which he can be subjected without
involving the crisis of a national revolution. In this delicate and
important circumstance of personal responsibility, the President of
Confederated America would stand upon no better ground than a
governor of New York, and upon worse ground than the governors of
Maryland and Delaware.
The President of the United States is to have power to return a
bill, which shall have passed the two branches of the legislature,
for reconsideration; and the bill so returned is to become a law,
if, upon that reconsideration, it be approved by two thirds of both
houses. The king of Great Britain, on his part, has an absolute
negative upon the acts of the two houses of Parliament. The disuse
of that power for a considerable time past does not affect the
reality of its existence; and is to be ascribed wholly to the
crown's having found the means of substituting influence to
authority, or the art of gaining a majority in one or the other of
the two houses, to the necessity of exerting a prerogative which
could seldom be exerted without hazarding some degree of national
agitation. The qualified negative of the President differs widely
from this absolute negative of the British sovereign; and tallies
exactly with the revisionary authority of the council of revision of
this State, of which the governor is a constituent part. In this
respect the power of the President would exceed that of the governor
of New York, because the former would possess, singly, what the
latter shares with the chancellor and judges; but it would be
precisely the same with that of the governor of Massachusetts, whose
constitution, as to this article, seems to have been the original
from which the convention have copied.
The President is to be the ``commander-in-chief of the army and
navy of the United States, and of the militia of the several States,
when called into the actual service of the United States. He is to
have power to grant reprieves and pardons for offenses against the
United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the
consideration of Congress such measures as he shall judge necessary
and expedient; to convene, on extraordinary occasions, both houses
of the legislature, or either of them, and, in case of disagreement
between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn
them to such time as he shall think proper; to take care that the
laws be faithfully executed; and to commission all officers of the
United States.'' In most of these particulars, the power of the
President will resemble equally that of the king of Great Britain
and of the governor of New York. The most material points of
difference are these: First. The President will have only the
occasional command of such part of the militia of the nation as by
legislative provision may be called into the actual service of the
Union. The king of Great Britain and the governor of New York have
at all times the entire command of all the militia within their
several jurisdictions. In this article, therefore, the power of the
President would be inferior to that of either the monarch or the
governor. Secondly. The President is to be commander-in-chief
of the army and navy of the United States. In this respect his
authority would be nominally the same with that of the king of Great
Britain, but in substance much inferior to it. It would amount to
nothing more than the supreme command and direction of the military
and naval forces, as first General and admiral of the Confederacy;
while that of the British king extends to the DECLARING of war and
to the RAISING and REGULATING of fleets and armies, all which, by
the Constitution under consideration, would appertain to the
legislature.1 The governor of New York, on the other hand, is
by the constitution of the State vested only with the command of its
militia and navy. But the constitutions of several of the States
expressly declare their governors to be commanders-in-chief, as well
of the army as navy; and it may well be a question, whether those
of New Hampshire and Massachusetts, in particular, do not, in this
instance, confer larger powers upon their respective governors, than
could be claimed by a President of the United States. Thirdly.
The power of the President, in respect to pardons, would extend to
all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York
may pardon in all cases, even in those of impeachment, except for
treason and murder. Is not the power of the governor, in this
article, on a calculation of political consequences, greater than
that of the President? All conspiracies and plots against the
government, which have not been matured into actual treason, may be
screened from punishment of every kind, by the interposition of the
prerogative of pardoning. If a governor of New York, therefore,
should be at the head of any such conspiracy, until the design had
been ripened into actual hostility he could insure his accomplices
and adherents an entire impunity. A President of the Union, on the
other hand, though he may even pardon treason, when prosecuted in
the ordinary course of law, could shelter no offender, in any
degree, from the effects of impeachment and conviction. Would not
the prospect of a total indemnity for all the preliminary steps be a
greater temptation to undertake and persevere in an enterprise
against the public liberty, than the mere prospect of an exemption
from death and confiscation, if the final execution of the design,
upon an actual appeal to arms, should miscarry? Would this last
expectation have any influence at all, when the probability was
computed, that the person who was to afford that exemption might
himself be involved in the consequences of the measure, and might be
incapacitated by his agency in it from affording the desired
impunity? The better to judge of this matter, it will be necessary
to recollect, that, by the proposed Constitution, the offense of
treason is limited ``to levying war upon the United States, and
adhering to their enemies, giving them aid and comfort''; and that
by the laws of New York it is confined within similar bounds.
Fourthly. The President can only adjourn the national legislature
in the single case of disagreement about the time of adjournment.
The British monarch may prorogue or even dissolve the Parliament.
The governor of New York may also prorogue the legislature of this
State for a limited time; a power which, in certain situations, may
be employed to very important purposes.
The President is to have power, with the advice and consent of
the Senate, to make treaties, provided two thirds of the senators
present concur. The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He can of
his own accord make treaties of peace, commerce, alliance, and of
every other description. It has been insinuated, that his authority
in this respect is not conclusive, and that his conventions with
foreign powers are subject to the revision, and stand in need of the
ratification, of Parliament. But I believe this doctrine was never
heard of, until it was broached upon the present occasion. Every
jurist2 of that kingdom, and every other man acquainted with its
Constitution, knows, as an established fact, that the prerogative of
making treaties exists in the crown in its utomst plentitude; and
that the compacts entered into by the royal authority have the most
complete legal validity and perfection, independent of any other
sanction. The Parliament, it is true, is sometimes seen employing
itself in altering the existing laws to conform them to the
stipulations in a new treaty; and this may have possibly given
birth to the imagination, that its co-operation was necessary to the
obligatory efficacy of the treaty. But this parliamentary
interposition proceeds from a different cause: from the necessity
of adjusting a most artificial and intricate system of revenue and
commercial laws, to the changes made in them by the operation of the
treaty; and of adapting new provisions and precautions to the new
state of things, to keep the machine from running into disorder. In
this respect, therefore, there is no comparison between the intended
power of the President and the actual power of the British sovereign.
The one can perform alone what the other can do only with the
concurrence of a branch of the legislature. It must be admitted,
that, in this instance, the power of the federal Executive would
exceed that of any State Executive. But this arises naturally from
the sovereign power which relates to treaties. If the Confederacy
were to be dissolved, it would become a question, whether the
Executives of the several States were not solely invested with that
delicate and important prerogative.
The President is also to be authorized to receive ambassadors
and other public ministers. This, though it has been a rich theme
of declamation, is more a matter of dignity than of authority. It
is a circumstance which will be without consequence in the
administration of the government; and it was far more convenient
that it should be arranged in this manner, than that there should be
a necessity of convening the legislature, or one of its branches,
upon every arrival of a foreign minister, though it were merely to
take the place of a departed predecessor.
The President is to nominate, and, WITH THE ADVICE AND CONSENT
OF THE SENATE, to appoint ambassadors and other public ministers,
judges of the Supreme Court, and in general all officers of the
United States established by law, and whose appointments are not
otherwise provided for by the Constitution. The king of Great
Britain is emphatically and truly styled the fountain of honor. He
not only appoints to all offices, but can create offices. He can
confer titles of nobility at pleasure; and has the disposal of an
immense number of church preferments. There is evidently a great
inferiority in the power of the President, in this particular, to
that of the British king; nor is it equal to that of the governor
of New York, if we are to interpret the meaning of the constitution
of the State by the practice which has obtained under it. The power
of appointment is with us lodged in a council, composed of the
governor and four members of the Senate, chosen by the Assembly.
The governor CLAIMS, and has frequently EXERCISED, the right of
nomination, and is ENTITLED to a casting vote in the appointment.
If he really has the right of nominating, his authority is in this
respect equal to that of the President, and exceeds it in the
article of the casting vote. In the national government, if the
Senate should be divided, no appointment could be made; in the
government of New York, if the council should be divided, the
governor can turn the scale, and confirm his own nomination.3
If we compare the publicity which must necessarily attend the mode
of appointment by the President and an entire branch of the national
legislature, with the privacy in the mode of appointment by the
governor of New York, closeted in a secret apartment with at most
four, and frequently with only two persons; and if we at the same
time consider how much more easy it must be to influence the small
number of which a council of appointment consists, than the
considerable number of which the national Senate would consist, we
cannot hesitate to pronounce that the power of the chief magistrate
of this State, in the disposition of offices, must, in practice, be
greatly superior to that of the Chief Magistrate of the Union.
Hence it appears that, except as to the concurrent authority of
the President in the article of treaties, it would be difficult to
determine whether that magistrate would, in the aggregate, possess
more or less power than the Governor of New York. And it appears
yet more unequivocally, that there is no pretense for the parallel
which has been attempted between him and the king of Great Britain.
But to render the contrast in this respect still more striking, it
may be of use to throw the principal circumstances of dissimilitude
into a closer group.
The President of the United States would be an officer elected
by the people for FOUR years; the king of Great Britain is a
perpetual and HEREDITARY prince. The one would be amenable to
personal punishment and disgrace; the person of the other is sacred
and inviolable. The one would have a QUALIFIED negative upon the
acts of the legislative body; the other has an ABSOLUTE negative.
The one would have a right to command the military and naval forces
of the nation; the other, in addition to this right, possesses that
of DECLARING war, and of RAISING and REGULATING fleets and armies by
his own authority. The one would have a concurrent power with a
branch of the legislature in the formation of treaties; the other
is the SOLE POSSESSOR of the power of making treaties. The one
would have a like concurrent authority in appointing to offices;
the other is the sole author of all appointments. The one can
confer no privileges whatever; the other can make denizens of
aliens, noblemen of commoners; can erect corporations with all the
rights incident to corporate bodies. The one can prescribe no rules
concerning the commerce or currency of the nation; the other is in
several respects the arbiter of commerce, and in this capacity can
establish markets and fairs, can regulate weights and measures, can
lay embargoes for a limited time, can coin money, can authorize or
prohibit the circulation of foreign coin. The one has no particle
of spiritual jurisdiction; the other is the supreme head and
governor of the national church! What answer shall we give to those
who would persuade us that things so unlike resemble each other?
The same that ought to be given to those who tell us that a
government, the whole power of which would be in the hands of the
elective and periodical servants of the people, is an aristocracy, a
monarchy, and a despotism.
PUBLIUS.
1 A writer in a Pennsylvania paper, under the signature of
TAMONY, has asserted that the king of Great Britain oweshis
prerogative as commander-in-chief to an annual mutiny bill. The
truth is, on the contrary, that his prerogative, in this respect, is
immenmorial, and was only disputed, ``contrary to all reason and
precedent,'' as Blackstone vol. i., page 262, expresses it, by the
Long Parliament of Charles I. but by the statute the 13th of Charles
II., chap. 6, it was declared to be in the king alone, for that the
sole supreme government and command of the militia within his
Majesty's realms and dominions, and of all forces by sea and land,
and of all forts and places of strength, EVER WAS AND IS the
undoubted right of his Majesty and his royal predecessors, kings and
queens of England, and that both or either house of Parliament
cannot nor ought to pretend to the same.
2 Vide Blackstone's ``Commentaries,'' vol i., p. 257.
3 Candor, however, demands an acknowledgment that I do not think
the claim of the governor to a right of nomination well founded.
Yet it is always justifiable to reason from the practice of a
government, till its propriety has been constitutionally questioned.
And independent of this claim, when we take into view the other
considerations, and pursue them through all their consequences, we
shall be inclined to draw much the same conclusion.
*There are two slightly different versions of No. 70 included here.
FEDERALIST No. 70
The Executive Department Further Considered
From the New York Packet.
Tuesday, March 18, 1788.
HAMILTON
To the People of the State of New York:
THERE is an idea, which is not without its advocates, that a
vigorous Executive is inconsistent with the genius of republican
government. The enlightened well-wishers to this species of
government must at least hope that the supposition is destitute of
foundation; since they can never admit its truth, without at the
same time admitting the condemnation of their own principles.
Energy in the Executive is a leading character in the definition of
good government. It is essential to the protection of the community
against foreign attacks; it is not less essential to the steady
administration of the laws; to the protection of property against
those irregular and high-handed combinations which sometimes
interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of
faction, and of anarchy. Every man the least conversant in Roman
story, knows how often that republic was obliged to take refuge in
the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government,
as against the invasions of external enemies who menaced the
conquest and destruction of Rome.
There can be no need, however, to multiply arguments or examples
on this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be in
theory, must be, in practice, a bad government.
Taking it for granted, therefore, that all men of sense will
agree in the necessity of an energetic Executive, it will only
remain to inquire, what are the ingredients which constitute this
energy? How far can they be combined with those other ingredients
which constitute safety in the republican sense? And how far does
this combination characterize the plan which has been reported by
the convention?
The ingredients which constitute energy in the Executive are,
first, unity; secondly, duration; thirdly, an adequate provision
for its support; fourthly, competent powers.
The ingredients which constitute safety in the repub lican sense
are, first, a due dependence on the people, secondly, a due
responsibility.
Those politicians and statesmen who have been the most
celebrated for the soundness of their principles and for the justice
of their views, have declared in favor of a single Executive and a
numerous legislature. They have with great propriety, considered
energy as the most necessary qualification of the former, and have
regarded this as most applicable to power in a single hand, while
they have, with equal propriety, considered the latter as best
adapted to deliberation and wisdom, and best calculated to
conciliate the confidence of the people and to secure their
privileges and interests.
That unity is conducive to energy will not be disputed.
Decision, activity, secrecy, and despatch will generally
characterize the proceedings of one man in a much more eminent
degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be
diminished.
This unity may be destroyed in two ways: either by vesting the
power in two or more magistrates of equal dignity and authority; or
by vesting it ostensibly in one man, subject, in whole or in part,
to the control and co-operation of others, in the capacity of
counsellors to him. Of the first, the two Consuls of Rome may serve
as an example; of the last, we shall find examples in the
constitutions of several of the States. New York and New Jersey, if
I recollect right, are the only States which have intrusted the
executive authority wholly to single men.1 Both these methods
of destroying the unity of the Executive have their partisans; but
the votaries of an executive council are the most numerous. They
are both liable, if not to equal, to similar objections, and may in
most lights be examined in conjunction.
The experience of other nations will afford little instruction
on this head. As far, however, as it teaches any thing, it teaches
us not to be enamoured of plurality in the Executive. We have seen
that the Achaeans, on an experiment of two Praetors, were induced to
abolish one. The Roman history records many instances of mischiefs
to the republic from the dissensions between the Consuls, and
between the military Tribunes, who were at times substituted for the
Consuls. But it gives us no specimens of any peculiar advantages
derived to the state from the circumstance of the plurality of those
magistrates. That the dissensions between them were not more
frequent or more fatal, is a matter of astonishment, until we advert
to the singular position in which the republic was almost
continually placed, and to the prudent policy pointed out by the
circumstances of the state, and pursued by the Consuls, of making a
division of the government between them. The patricians engaged in
a perpetual struggle with the plebeians for the preservation of
their ancient authorities and dignities; the Consuls, who were
generally chosen out of the former body, were commonly united by the
personal interest they had in the defense of the privileges of their
order. In addition to this motive of union, after the arms of the
republic had considerably expanded the bounds of its empire, it
became an established custom with the Consuls to divide the
administration between themselves by lot one of them remaining at
Rome to govern the city and its environs, the other taking the
command in the more distant provinces. This expedient must, no
doubt, have had great influence in preventing those collisions and
rivalships which might otherwise have embroiled the peace of the
republic.
But quitting the dim light of historical research, attaching
ourselves purely to the dictates of reason and good se se, we shall
discover much greater cause to reject than to approve the idea of
plurality in the Executive, under any modification whatever.
Wherever two or more persons are engaged in any common
enterprise or pursuit, there is always danger of difference of
opinion. If it be a public trust or office, in which they are
clothed with equal dignity and authority, there is peculiar danger
of personal emulation and even animosity. From either, and
especially from all these causes, the most bitter dissensions are
apt to spring. Whenever these happen, they lessen the
respectability, weaken the authority, and distract the plans and
operation of those whom they divide. If they should unfortunately
assail the supreme executive magistracy of a country, consisting of
a plurality of persons, they might impede or frustrate the most
important measures of the government, in the most critical
emergencies of the state. And what is still worse, they might split
the community into the most violent and irreconcilable factions,
adhering differently to the different individuals who composed the
magistracy.
Men often oppose a thing, merely because they have had no agency
in planning it, or because it may have been planned by those whom
they dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an
indispensable duty of self-love. They seem to think themselves
bound in honor, and by all the motives of personal infallibility, to
defeat the success of what has been resolved upon contrary to their
sentiments. Men of upright, benevolent tempers have too many
opportunities of remarking, with horror, to what desperate lengths
this disposition is sometimes carried, and how often the great
interests of society are sacrificed to the vanity, to the conceit,
and to the obstinacy of individuals, who have credit enough to make
their passions and their caprices interesting to mankind. Perhaps
the question now before the public may, in its consequences, afford
melancholy proofs of the effects of this despicable frailty, or
rather detestable vice, in the human character.
Upon the principles of a free government, inconveniences from
the source just mentioned must necessarily be submitted to in the
formation of the legislature; but it is unnecessary, and therefore
unwise, to introduce them into the constitution of the Executive.
It is here too that they may be most pernicious. In the
legislature, promptitude of decision is oftener an evil than a
benefit. The differences of opinion, and the jarrings of parties in
that department of the government, though they may sometimes
obstruct salutary plans, yet often promote deliberation and
circumspection, and serve to check excesses in the majority. When a
resolution too is once taken, the opposition must be at an end.
That resolution is a law, and resistance to it punishable. But no
favorable circumstances palliate or atone for the disadvantages of
dissension in the executive department. Here, they are pure and
unmixed. There is no point at which they cease to operate. They
serve to embarrass and weaken the execution of the plan or measure
to which they relate, from the first step to the final conclusion of
it. They constantly counteract those qualities in the Executive
which are the most necessary ingredients in its composition, vigor
and expedition, and this without anycounterbalancing good. In the
conduct of war, in which the energy of the Executive is the bulwark
of the national security, every thing would be to be apprehended
from its plurality.
It must be confessed that these observations apply with
principal weight to the first case supposed that is, to a plurality
of magistrates of equal dignity and authority a scheme, the
advocates for which are not likely to form a numerous sect; but
they apply, though not with equal, yet with considerable weight to
the project of a council, whose concurrence is made constitutionally
necessary to the operations of the ostensible Executive. An artful
cabal in that council would be able to distract and to enervate the
whole system of administration. If no such cabal should exist, the
mere diversity of views and opinions would alone be sufficient to
tincture the exercise of the executive authority with a spirit of
habitual feebleness and dilatoriness.
But one of the weightiest objections to a plurality in the
Executive, and which lies as much against the last as the first
plan, is, that it tends to conceal faults and destroy responsibility.
Responsibility is of two kinds to censure and to punishment. The
first is the more important of the two, especially in an elective
office. Man, in public trust, will much oftener act in such a
manner as to render him unworthy of being any longer trusted, than
in such a manner as to make him obnoxious to legal punishment. But
the multiplication of the Executive adds to the difficulty of
detection in either case. It often becomes impossible, amidst
mutual accusations, to determine on whom the blame or the punishment
of a pernicious measure, or series of pernicious measures, ought
really to fall. It is shifted from one to another with so much
dexterity, and under such plausible appearances, that the public
opinion is left in suspense about the real author. The
circumstances which may have led to any national miscarriage or
misfortune are sometimes so complicated that, where there are a
number of actors who may have had different degrees and kinds of
agency, though we may clearly see upon the whole that there has been
mismanagement, yet it may be impracticable to pronounce to whose
account the evil which may have been incurred is truly chargeable.
``I was overruled by my council. The council were so divided in
their opinions that it was impossible to obtain any better
resolution on the point.'' These and similar pretexts are
constantly at hand, whether true or false. And who is there that
will either take the trouble or incur the odium, of a strict
scrunity into the secret springs of the transaction? Should there
be found a citizen zealous enough to undertake the unpromising task,
if there happen to be collusion between the parties concerned, how
easy it is to clothe the circumstances with so much ambiguity, as to
render it uncertain what was the precise conduct of any of those
parties?
In the single instance in which the governor of this State is
coupled with a council that is, in the appointment to offices, we
have seen the mischiefs of it in the view now under consideration.
Scandalous appointments to important offices have been made. Some
cases, indeed, have been so flagrant that ALL PARTIES have agreed in
the impropriety of the thing. When inquiry has been made, the blame
has been laid by the governor on the members of the council, who, on
their part, have charged it upon his nomination; while the people
remain altogether at a loss to determine, by whose influence their
interests have been committed to hands so unqualified and so
manifestly improper. In tenderness to individuals, I forbear to
descend to particulars.
It is evident from these considerations, that the plurality of
the Executive tends to deprive the people of the two greatest
securities they can have for the faithful exercise of any delegated
power, first, the restraints of public opinion, which lose their
efficacy, as well on account of the division of the censure
attendant on bad measures among a number, as on account of the
uncertainty on whom it ought to fall; and, secondly, the
opportunity of discovering with facility and clearness the
misconduct of the persons they trust, in order either to their
removal from office or to their actual punishment in cases which
admit of it.
In England, the king is a perpetual magistrate; and it is a
maxim which has obtained for the sake of the pub lic peace, that he
is unaccountable for his administration, and his person sacred.
Nothing, therefore, can be wiser in that kingdom, than to annex to
the king a constitutional council, who may be responsible to the
nation for the advice they give. Without this, there would be no
responsibility whatever in the executive department an idea
inadmissible in a free government. But even there the king is not
bound by the resolutions of his council, though they are answerable
for the advice they give. He is the absolute master of his own
conduct in the exercise of his office, and may observe or disregard
the counsel given to him at his sole discretion.
But in a republic, where every magistrate ought to be personally
responsible for his behavior in office the reason which in the
British Constitution dictates the propriety of a council, not only
ceases to apply, but turns against the institution. In the monarchy
of Great Britain, it furnishes a substitute for the prohibited
responsibility of the chief magistrate, which serves in some degree
as a hostage to the national justice for his good behavior. In the
American republic, it would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief
Magistrate himself.
The idea of a council to the Executive, which has so generally
obtained in the State constitutions, has been derived from that
maxim of republican jealousy which considers power as safer in the
hands of a number of men than of a single man. If the maxim should
be admitted to be applicable to the case, I should contend that the
advantage on that side would not counterbalance the numerous
disadvantages on the opposite side. But I do not think the rule at
all applicable to the executive power. I clearly concur in opinion,
in this particular, with a writer whom the celebrated Junius
pronounces to be ``deep, solid, and ingenious,'' that ``the
executive power is more easily confined when it is ONE'';2 that
it is far more safe there should be a single object for the jealousy
and watchfulness of the people; and, in a word, that all
multiplication of the Executive is rather dangerous than friendly to
liberty.
A little consideration will satisfy us, that the species of
security sought for in the multiplication of the Executive, is
nattainable. Numbers must be so great as to render combination
difficult, or they are rather a source of danger than of security.
The united credit and influence of several individuals must be more
formidable to liberty, than the credit and influence of either of
them separately. When power, therefore, is placed in the hands of
so small a number of men, as to admit of their interests and views
being easily combined in a common enterprise, by an artful leader,
it becomes more liable to abuse, and more dangerous when abused,
than if it be lodged in the hands of one man; who, from the very
circumstance of his being alone, will be more narrowly watched and
more readily suspected, and who cannot unite so great a mass of
influence as when he is associated with others. The Decemvirs of
Rome, whose name denotes their number,3 were more to be dreaded
in their usurpation than any ONE of them would have been. No person
would think of proposing an Executive much more numerous than that
body; from six to a dozen have been suggested for the number of the
council. The extreme of these numbers, is not too great for an easy
combination; and from such a combination America would have more to
fear, than from the ambition of any single individual. A council to
a magistrate, who is himself responsible for what he does, are
generally nothing better than a clog upon his good intentions, are
often the instruments and accomplices of his bad and are almost
always a cloak to his faults.
I forbear to dwell upon the subject of expense; though it be
evident that if the council should be numerous enough to answer the
principal end aimed at by the institution, the salaries of the
members, who must be drawn from their homes to reside at the seat of
government, would form an item in the catalogue of public
expenditures too serious to be incurred for an object of equivocal
utility. I will only add that, prior to the appearance of the
Constitution, I rarely met with an intelligent man from any of the
States, who did not admit, as the result of experience, that the
UNITY of the executive of this State was one of the best of the
distinguishing features of our constitution.
PUBLIUS.
1 New York has no council except for the single purpose of
appointing to offices; New Jersey has a council whom the governor
may consult. But I think, from the terms of the constitution, their
resolutions do not bind him.
2 De Lolme.
3 Ten.
*There are two slightly different versions of No. 70 included here.
FEDERALIST No. 70
The Executive Department Further Considered
From the New York Packet.
Tuesday, March 18, 1788.
HAMILTON
To the People of the State of New York:
THERE is an idea, which is not without its advocates, that a
vigorous Executive is inconsistent with the genius of republican
government. The enlightened well-wishers to this species of
government must at least hope that the supposition is destitute of
foundation; since they can never admit its truth, without at the
same time admitting the condemnation of their own principles.
Energy in the Executive is a leading character in the definition of
good government. It is essential to the protection of the community
against foreign attacks; it is not less essential to the steady
administration of the laws; to the protection of property against
those irregular and high-handed combinations which sometimes
interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of
faction, and of anarchy. Every man the least conversant in Roman
story, knows how often that republic was obliged to take refuge in
the absolute power of a single man, under the formidable title of
Dictator, as well against the intrigues of ambitious individuals who
aspired to the tyranny, and the seditions of whole classes of the
community whose conduct threatened the existence of all government,
as against the invasions of external enemies who menaced the
conquest and destruction of Rome.
There can be no need, however, to multiply arguments or examples
on this head. A feeble Executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be in
theory, must be, in practice, a bad government.
Taking it for granted, therefore, that all men of sense will
agree in the necessity of an energetic Executive, it will only
remain to inquire, what are the ingredients which constitute this
energy? How far can they be combined with those other ingredients
which constitute safety in the republican sense? And how far does
this combination characterize the plan which has been reported by
the convention?
The ingredients which constitute energy in the Executive are,
first, unity; secondly, duration; thirdly, an adequate provision
for its support; fourthly, competent powers.
The ingredients which constitute safety in the repub lican sense
are, first, a due dependence on the people, secondly, a due
responsibility.
Those politicians and statesmen who have been the most
celebrated for the soundness of their principles and for the justice
of their views, have declared in favor of a single Executive and a
numerous legislature. They have with great propriety, considered
energy as the most necessary qualification of the former, and have
regarded this as most applicable to power in a single hand, while
they have, with equal propriety, considered the latter as best
adapted to deliberation and wisdom, and best calculated to
conciliate the confidence of the people and to secure their
privileges and interests.
That unity is conducive to energy will not be disputed.
Decision, activity, secrecy, and despatch will generally
characterize the proceedings of one man in a much more eminent
degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be
diminished.
This unity may be destroyed in two ways: either by vesting the
power in two or more magistrates of equal dignity and authority; or
by vesting it ostensibly in one man, subject, in whole or in part,
to the control and co-operation of others, in the capacity of
counsellors to him. Of the first, the two Consuls of Rome may serve
as an example; of the last, we shall find examples in the
constitutions of several of the States. New York and New Jersey, if
I recollect right, are the only States which have intrusted the
executive authority wholly to single men.1 Both these methods
of destroying the unity of the Executive have their partisans; but
the votaries of an executive council are the most numerous. They
are both liable, if not to equal, to similar objections, and may in
most lights be examined in conjunction.
The experience of other nations will afford little instruction
on this head. As far, however, as it teaches any thing, it teaches
us not to be enamoured of plurality in the Executive. We have seen
that the Achaeans, on an experiment of two Praetors, were induced to
abolish one. The Roman history records many instances of mischiefs
to the republic from the dissensions between the Consuls, and
between the military Tribunes, who were at times substituted for the
Consuls. But it gives us no specimens of any peculiar advantages
derived to the state from the circumstance of the plurality of those
magistrates. That the dissensions between them were not more
frequent or more fatal, is a matter of astonishment, until we advert
to the singular position in which the republic was almost
continually placed, and to the prudent policy pointed out by the
circumstances of the state, and pursued by the Consuls, of making a
division of the government between them. The patricians engaged in
a perpetual struggle with the plebeians for the preservation of
their ancient authorities and dignities; the Consuls, who were
generally chosen out of the former body, were commonly united by the
personal interest they had in the defense of the privileges of their
order. In addition to this motive of union, after the arms of the
republic had considerably expanded the bounds of its empire, it
became an established custom with the Consuls to divide the
administration between themselves by lot one of them remaining at
Rome to govern the city and its environs, the other taking the
command in the more distant provinces. This expedient must, no
doubt, have had great influence in preventing those collisions and
rivalships which might otherwise have embroiled the peace of the
republic.
But quitting the dim light of historical research, attaching
ourselves purely to the dictates of reason and good se se, we shall
discover much greater cause to reject than to approve the idea of
plurality in the Executive, under any modification whatever.
Wherever two or more persons are engaged in any common
enterprise or pursuit, there is always danger of difference of
opinion. If it be a public trust or office, in which they are
clothed with equal dignity and authority, there is peculiar danger
of personal emulation and even animosity. From either, and
especially from all these causes, the most bitter dissensions are
apt to spring. Whenever these happen, they lessen the
respectability, weaken the authority, and distract the plans and
operation of those whom they divide. If they should unfortunately
assail the supreme executive magistracy of a country, consisting of
a plurality of persons, they might impede or frustrate the most
important measures of the government, in the most critical
emergencies of the state. And what is still worse, they might split
the community into the most violent and irreconcilable factions,
adhering differently to the different individuals who composed the
magistracy.
Men often oppose a thing, merely because they have had no agency
in planning it, or because it may have been planned by those whom
they dislike. But if they have been consulted, and have happened to
disapprove, opposition then becomes, in their estimation, an
indispensable duty of self-love. They seem to think themselves
bound in honor, and by all the motives of personal infallibility, to
defeat the success of what has been resolved upon contrary to their
sentiments. Men of upright, benevolent tempers have too many
opportunities of remarking, with horror, to what desperate lengths
this disposition is sometimes carried, and how often the great
interests of society are sacrificed to the vanity, to the conceit,
and to the obstinacy of individuals, who have credit enough to make
their passions and their caprices interesting to mankind. Perhaps
the question now before the public may, in its consequences, afford
melancholy proofs of the effects of this despicable frailty, or
rather detestable vice, in the human character.
Upon the principles of a free government, inconveniences from
the source just mentioned must necessarily be submitted to in the
formation of the legislature; but it is unnecessary, and therefore
unwise, to introduce them into the constitution of the Executive.
It is here too that they may be most pernicious. In the
legislature, promptitude of decision is oftener an evil than a
benefit. The differences of opinion, and the jarrings of parties in
that department of the government, though they may sometimes
obstruct salutary plans, yet often promote deliberation and
circumspection, and serve to check excesses in the majority. When a
resolution too is once taken, the opposition must be at an end.
That resolution is a law, and resistance to it punishable. But no
favorable circumstances palliate or atone for the disadvantages of
dissension in the executive department. Here, they are pure and
unmixed. There is no point at which they cease to operate. They
serve to embarrass and weaken the execution of the plan or measure
to which they relate, from the first step to the final conclusion of
it. They constantly counteract those qualities in the Executive
which are the most necessary ingredients in its composition, vigor
and expedition, and this without anycounterbalancing good. In the
conduct of war, in which the energy of the Executive is the bulwark
of the national security, every thing would be to be apprehended
from its plurality.
It must be confessed that these observations apply with
principal weight to the first case supposed that is, to a plurality
of magistrates of equal dignity and authority a scheme, the
advocates for which are not likely to form a numerous sect; but
they apply, though not with equal, yet with considerable weight to
the project of a council, whose concurrence is made constitutionally
necessary to the operations of the ostensible Executive. An artful
cabal in that council would be able to distract and to enervate the
whole system of administration. If no such cabal should exist, the
mere diversity of views and opinions would alone be sufficient to
tincture the exercise of the executive authority with a spirit of
habitual feebleness and dilatoriness.
But one of the weightiest objections to a plurality in the
Executive, and which lies as much against the last as the first
plan, is, that it tends to conceal faults and destroy responsibility.
Responsibility is of two kinds to censure and to punishment. The
first is the more important of the two, especially in an elective
office. Man, in public trust, will much oftener act in such a
manner as to render him unworthy of being any longer trusted, than
in such a manner as to make him obnoxious to legal punishment. But
the multiplication of the Executive adds to the difficulty of
detection in either case. It often becomes impossible, amidst
mutual accusations, to determine on whom the blame or the punishment
of a pernicious measure, or series of pernicious measures, ought
really to fall. It is shifted from one to another with so much
dexterity, and under such plausible appearances, that the public
opinion is left in suspense about the real author. The
circumstances which may have led to any national miscarriage or
misfortune are sometimes so complicated that, where there are a
number of actors who may have had different degrees and kinds of
agency, though we may clearly see upon the whole that there has been
mismanagement, yet it may be impracticable to pronounce to whose
account the evil which may have been incurred is truly chargeable.
``I was overruled by my council. The council were so divided in
their opinions that it was impossible to obtain any better
resolution on the point.'' These and similar pretexts are
constantly at hand, whether true or false. And who is there that
will either take the trouble or incur the odium, of a strict
scrunity into the secret springs of the transaction? Should there
be found a citizen zealous enough to undertake the unpromising task,
if there happen to be collusion between the parties concerned, how
easy it is to clothe the circumstances with so much ambiguity, as to
render it uncertain what was the precise conduct of any of those
parties?
In the single instance in which the governor of this State is
coupled with a council that is, in the appointment to offices, we
have seen the mischiefs of it in the view now under consideration.
Scandalous appointments to important offices have been made. Some
cases, indeed, have been so flagrant that ALL PARTIES have agreed in
the impropriety of the thing. When inquiry has been made, the blame
has been laid by the governor on the members of the council, who, on
their part, have charged it upon his nomination; while the people
remain altogether at a loss to determine, by whose influence their
interests have been committed to hands so unqualified and so
manifestly improper. In tenderness to individuals, I forbear to
descend to particulars.
It is evident from these considerations, that the plurality of
the Executive tends to deprive the people of the two greatest
securities they can have for the faithful exercise of any delegated
power, first, the restraints of public opinion, which lose their
efficacy, as well on account of the division of the censure
attendant on bad measures among a number, as on account of the
uncertainty on whom it ought to fall; and, secondly, the
opportunity of discovering with facility and clearness the
misconduct of the persons they trust, in order either to their
removal from office or to their actual punishment in cases which
admit of it.
In England, the king is a perpetual magistrate; and it is a
maxim which has obtained for the sake of the pub lic peace, that he
is unaccountable for his administration, and his person sacred.
Nothing, therefore, can be wiser in that kingdom, than to annex to
the king a constitutional council, who may be responsible to the
nation for the advice they give. Without this, there would be no
responsibility whatever in the executive department an idea
inadmissible in a free government. But even there the king is not
bound by the resolutions of his council, though they are answerable
for the advice they give. He is the absolute master of his own
conduct in the exercise of his office, and may observe or disregard
the counsel given to him at his sole discretion.
But in a republic, where every magistrate ought to be personally
responsible for his behavior in office the reason which in the
British Constitution dictates the propriety of a council, not only
ceases to apply, but turns against the institution. In the monarchy
of Great Britain, it furnishes a substitute for the prohibited
responsibility of the chief magistrate, which serves in some degree
as a hostage to the national justice for his good behavior. In the
American republic, it would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief
Magistrate himself.
The idea of a council to the Executive, which has so generally
obtained in the State constitutions, has been derived from that
maxim of republican jealousy which considers power as safer in the
hands of a number of men than of a single man. If the maxim should
be admitted to be applicable to the case, I should contend that the
advantage on that side would not counterbalance the numerous
disadvantages on the opposite side. But I do not think the rule at
all applicable to the executive power. I clearly concur in opinion,
in this particular, with a writer whom the celebrated Junius
pronounces to be ``deep, solid, and ingenious,'' that ``the
executive power is more easily confined when it is ONE'';2 that
it is far more safe there should be a single object for the jealousy
and watchfulness of the people; and, in a word, that all
multiplication of the Executive is rather dangerous than friendly to
liberty.
A little consideration will satisfy us, that the species of
security sought for in the multiplication of the Executive, is
nattainable. Numbers must be so great as to render combination
difficult, or they are rather a source of danger than of security.
The united credit and influence of several individuals must be more
formidable to liberty, than the credit and influence of either of
them separately. When power, therefore, is placed in the hands of
so small a number of men, as to admit of their interests and views
being easily combined in a common enterprise, by an artful leader,
it becomes more liable to abuse, and more dangerous when abused,
than if it be lodged in the hands of one man; who, from the very
circumstance of his being alone, will be more narrowly watched and
more readily suspected, and who cannot unite so great a mass of
influence as when he is associated with others. The Decemvirs of
Rome, whose name denotes their number,3 were more to be dreaded
in their usurpation than any ONE of them would have been. No person
would think of proposing an Executive much more numerous than that
body; from six to a dozen have been suggested for the number of the
council. The extreme of these numbers, is not too great for an easy
combination; and from such a combination America would have more to
fear, than from the ambition of any single individual. A council to
a magistrate, who is himself responsible for what he does, are
generally nothing better than a clog upon his good intentions, are
often the instruments and accomplices of his bad and are almost
always a cloak to his faults.
I forbear to dwell upon the subject of expense; though it be
evident that if the council should be numerous enough to answer the
principal end aimed at by the institution, the salaries of the
members, who must be drawn from their homes to reside at the seat of
government, would form an item in the catalogue of public
expenditures too serious to be incurred for an object of equivocal
utility. I will only add that, prior to the appearance of the
Constitution, I rarely met with an intelligent man from any of the
States, who did not admit, as the result of experience, that the
UNITY of the executive of this State was one of the best of the
distinguishing features of our constitution.
PUBLIUS.
1 New York has no council except for the single purpose of
appointing to offices; New Jersey has a council whom the governor
may consult. But I think, from the terms of the constitution, their
resolutions do not bind him.
2 De Lolme.
3 Ten.
FEDERALIST No. 71
The Duration in Office of the Executive
From the New York Packet.
Tuesday, March 18, 1788.
HAMILTON
To the People of the State of New York:
DURATION in office has been mentioned as the second requisite to
the energy of the Executive authority. This has relation to two
objects: to the personal firmness of the executive magistrate, in
the employment of his constitutional powers; and to the stability
of the system of administration which may have been adopted under
his auspices. With regard to the first, it must be evident, that
the longer the duration in office, the greater will be the
probability of obtaining so important an advantage. It is a general
principle of human nature, that a man will be interested in whatever
he possesses, in proportion to the firmness or precariousness of the
tenure by which he holds it; will be less attached to what he holds
by a momentary or uncertain title, than to what he enjoys by a
durable or certain title; and, of course, will be willing to risk
more for the sake of the one, than for the sake of the other. This
remark is not less applicable to a political privilege, or honor, or
trust, than to any article of ordinary property. The inference from
it is, that a man acting in the capacity of chief magistrate, under
a consciousness that in a very short time he MUST lay down his
office, will be apt to feel himself too little interested in it to
hazard any material censure or perplexity, from the independent
exertion of his powers, or from encountering the ill-humors, however
transient, which may happen to prevail, either in a considerable
part of the society itself, or even in a predominant faction in the
legislative body. If the case should only be, that he MIGHT lay it
down, unless continued by a new choice, and if he should be desirous
of being continued, his wishes, conspiring with his fears, would
tend still more powerfully to corrupt his integrity, or debase his
fortitude. In either case, feebleness and irresolution must be the
characteristics of the station.
There are some who would be inclined to regard the servile
pliancy of the Executive to a prevailing current, either in the
community or in the legislature, as its best recommendation. But
such men entertain very crude notions, as well of the purposes for
which government was instituted, as of the true means by which the
public happiness may be promoted. The republican principle demands
that the deliberate sense of the community should govern the conduct
of those to whom they intrust the management of their affairs; but
it does not require an unqualified complaisance to every sudden
breeze of passion, or to every transient impulse which the people
may receive from the arts of men, who flatter their prejudices to
betray their interests. It is a just observation, that the people
commonly INTEND the PUBLIC GOOD. This often applies to their very
errors. But their good sense would despise the adulator who should
pretend that they always REASON RIGHT about the MEANS of promoting
it. They know from experience that they sometimes err; and the
wonder is that they so seldom err as they do, beset, as they
continually are, by the wiles of parasites and sycophants, by the
snares of the ambitious, the avaricious, the desperate, by the
artifices of men who possess their confidence more than they deserve
it, and of those who seek to possess rather than to deserve it.
When occasions present themselves, in which the interests of the
people are at variance with their inclinations, it is the duty of
the persons whom they have appointed to be the guardians of those
interests, to withstand the temporary delusion, in order to give
them time and opportunity for more cool and sedate reflection.
Instances might be cited in which a conduct of this kind has saved
the people from very fatal consequences of their own mistakes, and
has procured lasting monuments of their gratitude to the men who had
courage and magnanimity enough to serve them at the peril of their
displeasure.
But however inclined we might be to insist upon an unbounded
complaisance in the Executive to the inclinations of the people, we
can with no propriety contend for a like complaisance to the humors
of the legislature. The latter may sometimes stand in opposition to
the former, and at other times the people may be entirely neutral.
In either supposition, it is certainly desirable that the Executive
should be in a situation to dare to act his own opinion with vigor
and decision.
The same rule which teaches the propriety of a partition between
the various branches of power, teaches us likewise that this
partition ought to be so contrived as to render the one independent
of the other. To what purpose separate the executive or the
judiciary from the legislative, if both the executive and the
judiciary are so constituted as to be at the absolute devotion of
the legislative? Such a separation must be merely nominal, and
incapable of producing the ends for which it was established. It is
one thing to be subordinate to the laws, and another to be dependent
on the legislative body. The first comports with, the last
violates, the fundamental principles of good government; and,
whatever may be the forms of the Constitution, unites all power in
the same hands. The tendency of the legislative authority to absorb
every other, has been fully displayed and illustrated by examples in
some preceding numbers. In governments purely republican, this
tendency is almost irresistible. The representatives of the people,
in a popular assembly, seem sometimes to fancy that they are the
people themselves, and betray strong symptoms of impatience and
disgust at the least sign of opposition from any other quarter; as
if the exercise of its rights, by either the executive or judiciary,
were a breach of their privilege and an outrage to their dignity.
They often appear disposed to exert an imperious control over the
other departments; and as they commonly have the people on their
side, they always act with such momentum as to make it very
difficult for the other members of the government to maintain the
balance of the Constitution.
It may perhaps be asked, how the shortness of the duration in
office can affect the independence of the Executive on the
legislature, unless the one were possessed of the power of
appointing or displacing the other. One answer to this inquiry may
be drawn from the principle already remarked that is, from the
slender interest a man is apt to take in a short-lived advantage,
and the little inducement it affords him to expose himself, on
account of it, to any considerable inconvenience or hazard. Another
answer, perhaps more obvious, though not more conclusive, will
result from the consideration of the influence of the legislative
body over the people; which might be employed to prevent the
re-election of a man who, by an upright resistance to any sinister
project of that body, should have made himself obnoxious to its
resentment.
It may be asked also, whether a duration of four years would
answer the end proposed; and if it would not, whether a less
period, which would at least be recommended by greater security
against ambitious designs, would not, for that reason, be preferable
to a longer period, which was, at the same time, too short for the
purpose of inspiring the desired firmness and independence of the
magistrate.
It cannot be affirmed, that a duration of four years, or any
other limited duration, would completely answer the end proposed;
but it would contribute towards it in a degree which would have a
material influence upon the spirit and character of the government.
Between the commencement and termination of such a period, there
would always be a considerable interval, in which the prospect of
annihilation would be sufficiently remote, not to have an improper
effect upon the conduct of a man indued with a tolerable portion of
fortitude; and in which he might reasonably promise himself, that
there would be time enough before it arrived, to make the community
sensible of the propriety of the measures he might incline to pursue.
Though it be probable that, as he approached the moment when the
public were, by a new election, to signify their sense of his
conduct, his confidence, and with it his firmness, would decline;
yet both the one and the other would derive support from the
opportunities which his previous continuance in the station had
afforded him, of establishing himself in the esteem and good-will of
his constituents. He might, then, hazard with safety, in proportion
to the proofs he had given of his wisdom and integrity, and to the
title he had acquired to the respect and attachment of his
fellow-citizens. As, on the one hand, a duration of four years will
contribute to the firmness of the Executive in a sufficient degree
to render it a very valuable ingredient in the composition; so, on
the other, it is not enough to justify any alarm for the public
liberty. If a British House of Commons, from the most feeble
beginnings, FROM THE MERE POWER OF ASSENTING OR DISAGREEING TO THE
IMPOSITION OF A NEW TAX, have, by rapid strides, reduced the
prerogatives of the crown and the privileges of the nobility within
the limits they conceived to be compatible with the principles of a
free government, while they raised themselves to the rank and
consequence of a coequal branch of the legislature; if they have
been able, in one instance, to abolish both the royalty and the
aristocracy, and to overturn all the ancient establishments, as well
in the Church as State; if they have been able, on a recent
occasion, to make the monarch tremble at the prospect of an
innovation1 attempted by them, what would be to be feared from
an elective magistrate of four years' duration, with the confined
authorities of a President of the United States? What, but that he
might be unequal to the task which the Constitution assigns him? I
shall only add, that if his duration be such as to leave a doubt of
his firmness, that doubt is inconsistent with a jealousy of his
encroachments.
PUBLIUS.
1 This was the case with respect to Mr. Fox's India bill, which
was carried in the House of Commons, and rejected in the House of
Lords, to the entire satisfaction, as it is said, of the people.
FEDERALIST No. 72
The Same Subject Continued, and Re-Eligibility of the Executive
Considered
From the New York Packet.
Friday, March 21, 1788.
HAMILTON
To the People of the State of New York:
THE administration of government, in its largest sense,
comprehends all the operations of the body politic, whether
legislative, executive, or judiciary; but in its most usual, and
perhaps its most precise signification. it is limited to executive
details, and falls peculiarly within the province of the executive
department. The actual conduct of foreign negotiations, the
preparatory plans of finance, the application and disbursement of
the public moneys in conformity to the general appropriations of the
legislature, the arrangement of the army and navy, the directions of
the operations of war, these, and other matters of a like nature,
constitute what seems to be most properly understood by the
administration of government. The persons, therefore, to whose
immediate management these different matters are committed, ought to
be considered as the assistants or deputies of the chief magistrate,
and on this account, they ought to derive their offices from his
appointment, at least from his nomination, and ought to be subject
to his superintendence. This view of the subject will at once
suggest to us the intimate connection between the duration of the
executive magistrate in office and the stability of the system of
administration. To reverse and undo what has been done by a
predecessor, is very often considered by a successor as the best
proof he can give of his own capacity and desert; and in addition
to this propensity, where the alteration has been the result of
public choice, the person substituted is warranted in supposing that
the dismission of his predecessor has proceeded from a dislike to
his measures; and that the less he resembles him, the more he will
recommend himself to the favor of his constituents. These
considerations, and the influence of personal confidences and
attachments, would be likely to induce every new President to
promote a change of men to fill the subordinate stations; and these
causes together could not fail to occasion a disgraceful and ruinous
mutability in the administration of the government.
With a positive duration of considerable extent, I connect the
circumstance of re-eligibility. The first is necessary to give to
the officer himself the inclination and the resolution to act his
part well, and to the community time and leisure to observe the
tendency of his measures, and thence to form an experimental
estimate of their merits. The last is necessary to enable the
people, when they see reason to approve of his conduct, to continue
him in his station, in order to prolong the utility of his talents
and virtues, and to secure to the government the advantage of
permanency in a wise system of administration.
Nothing appears more plausible at first sight, nor more
ill-founded upon close inspection, than a scheme which in relation
to the present point has had some respectable advocates, I mean that
of continuing the chief magistrate in office for a certain time, and
then excluding him from it, either for a limited period or forever
after. This exclusion, whether temporary or perpetual, would have
nearly the same effects, and these effects would be for the most
part rather pernicious than salutary.
One ill effect of the exclusion would be a diminution of the
inducements to good behavior. There are few men who would not feel
much less zeal in the discharge of a duty when they were conscious
that the advantages of the station with which it was connected must
be relinquished at a determinate period, than when they were
permitted to entertain a hope of OBTAINING, by MERITING, a
continuance of them. This position will not be disputed so long as
it is admitted that the desire of reward is one of the strongest
incentives of human conduct; or that the best security for the
fidelity of mankind is to make their interests coincide with their
duty. Even the love of fame, the ruling passion of the noblest
minds, which would prompt a man to plan and undertake extensive and
arduous enterprises for the public benefit, requiring considerable
time to mature and perfect them, if he could flatter himself with
the prospect of being allowed to finish what he had begun, would, on
the contrary, deter him from the undertaking, when he foresaw that
he must quit the scene before he could accomplish the work, and must
commit that, together with his own reputation, to hands which might
be unequal or unfriendly to the task. The most to be expected from
the generality of men, in such a situation, is the negative merit of
not doing harm, instead of the positive merit of doing good.
Another ill effect of the exclusion would be the temptation to
sordid views, to peculation, and, in some instances, to usurpation.
An avaricious man, who might happen to fill the office, looking
forward to a time when he must at all events yield up the emoluments
he enjoyed, would feel a propensity, not easy to be resisted by such
a man, to make the best use of the opportunity he enjoyed while it
lasted, and might not scruple to have recourse to the most corrupt
expedients to make the harvest as abundant as it was transitory;
though the same man, probably, with a different prospect before
him, might content himself with the regular perquisites of his
situation, and might even be unwilling to risk the consequences of
an abuse of his opportunities. His avarice might be a guard upon
his avarice. Add to this that the same man might be vain or
ambitious, as well as avaricious. And if he could expect to prolong
his honors by his good conduct, he might hesitate to sacrifice his
appetite for them to his appetite for gain. But with the prospect
before him of approaching an inevitable annihilation, his avarice
would be likely to get the victory over his caution, his vanity, or
his ambition.
An ambitious man, too, when he found himself seated on the
summit of his country's honors, when he looked forward to the time
at which he must descend from the exalted eminence for ever, and
reflected that no exertion of merit on his part could save him from
the unwelcome reverse; such a man, in such a situation, would be
much more violently tempted to embrace a favorable conjuncture for
attempting the prolongation of his power, at every personal hazard,
than if he had the probability of answering the same end by doing
his duty.
Would it promote the peace of the community, or the stability of
the government to have half a dozen men who had had credit enough to
be raised to the seat of the supreme magistracy, wandering among the
people like discontented ghosts, and sighing for a place which they
were destined never more to possess?
A third ill effect of the exclusion would be, the depriving the
community of the advantage of the experience gained by the chief
magistrate in the exercise of his office. That experience is the
parent of wisdom, is an adage the truth of which is recognized by
the wisest as well as the simplest of mankind. What more desirable
or more essential than this quality in the governors of nations?
Where more desirable or more essential than in the first magistrate
of a nation? Can it be wise to put this desirable and essential
quality under the ban of the Constitution, and to declare that the
moment it is acquired, its possessor shall be compelled to abandon
the station in which it was acquired, and to which it is adapted?
This, nevertheless, is the precise import of all those regulations
which exclude men from serving their country, by the choice of their
fellowcitizens, after they have by a course of service fitted
themselves for doing it with a greater degree of utility.
A fourth ill effect of the exclusion would be the banishing men
from stations in which, in certain emergencies of the state, their
presence might be of the greatest moment to the public interest or
safety. There is no nation which has not, at one period or another,
experienced an absolute necessity of the services of particular men
in particular situations; perhaps it would not be too strong to
say, to the preservation of its political existence. How unwise,
therefore, must be every such self-denying ordinance as serves to
prohibit a nation from making use of its own citizens in the manner
best suited to its exigencies and circumstances! Without supposing
the personal essentiality of the man, it is evident that a change of
the chief magistrate, at the breaking out of a war, or at any
similar crisis, for another, even of equal merit, would at all times
be detrimental to the community, inasmuch as it would substitute
inexperience to experience, and would tend to unhinge and set afloat
the already settled train of the administration.
A fifth ill effect of the exclusion would be, that it would
operate as a constitutional interdiction of stability in the
administration. By NECESSITATING a change of men, in the first
office of the nation, it would necessitate a mutability of measures.
It is not generally to be expected, that men will vary and measures
remain uniform. The contrary is the usual course of things. And we
need not be apprehensive that there will be too much stability,
while there is even the option of changing; nor need we desire to
prohibit the people from continuing their confidence where they
think it may be safely placed, and where, by constancy on their
part, they may obviate the fatal inconveniences of fluctuating
councils and a variable policy.
These are some of the disadvantages which would flow from the
principle of exclusion. They apply most forcibly to the scheme of a
perpetual exclusion; but when we consider that even a partial
exclusion would always render the readmission of the person a remote
and precarious object, the observations which have been made will
apply nearly as fully to one case as to the other.
What are the advantages promised to counterbalance these
disadvantages? They are represented to be: 1st, greater
independence in the magistrate; 2d, greater security to the people.
Unless the exclusion be perpetual, there will be no pretense to
infer the first advantage. But even in that case, may he have no
object beyond his present station, to which he may sacrifice his
independence? May he have no connections, no friends, for whom he
may sacrifice it? May he not be less willing by a firm conduct, to
make personal enemies, when he acts under the impression that a time
is fast approaching, on the arrival of which he not only MAY, but
MUST, be exposed to their resentments, upon an equal, perhaps upon
an inferior, footing? It is not an easy point to determine whether
his independence would be most promoted or impaired by such an
arrangement.
As to the second supposed advantage, there is still greater
reason to entertain doubts concerning it. If the exclusion were to
be perpetual, a man of irregular ambition, of whom alone there could
be reason in any case to entertain apprehension, would, with
infinite reluctance, yield to the necessity of taking his leave
forever of a post in which his passion for power and pre-eminence
had acquired the force of habit. And if he had been fortunate or
adroit enough to conciliate the good-will of the people, he might
induce them to consider as a very odious and unjustifiable restraint
upon themselves, a provision which was calculated to debar them of
the right of giving a fresh proof of their attachment to a favorite.
There may be conceived circumstances in which this disgust of the
people, seconding the thwarted ambition of such a favorite, might
occasion greater danger to liberty, than could ever reasonably be
dreaded from the possibility of a perpetuation in office, by the
voluntary suffrages of the community, exercising a constitutional
privilege.
There is an excess of refinement in the idea of disabling the
people to continue in office men who had entitled themselves, in
their opinion, to approbation and confidence; the advantages of
which are at best speculative and equivocal, and are overbalanced by
disadvantages far more certain and decisive.
PUBLIUS.
FEDERALIST No. 73
The Provision For The Support of the Executive, and the Veto Power
From the New York Packet.
Friday, March 21, 1788.
HAMILTON
To the People of the State of New York:
THE third ingredient towards constituting the vigor of the
executive authority, is an adequate provision for its support. It
is evident that, without proper attention to this article, the
separation of the executive from the legislative department would be
merely nominal and nugatory. The legislature, with a discretionary
power over the salary and emoluments of the Chief Magistrate, could
render him as obsequious to their will as they might think proper to
make him. They might, in most cases, either reduce him by famine,
or tempt him by largesses, to surrender at discretion his judgment
to their inclinations. These expressions, taken in all the latitude
of the terms, would no doubt convey more than is intended. There
are men who could neither be distressed nor won into a sacrifice of
their duty; but this stern virtue is the growth of few soils; and
in the main it will be found that a power over a man's support is a
power over his will. If it were necessary to confirm so plain a
truth by facts, examples would not be wanting, even in this country,
of the intimidation or seduction of the Executive by the terrors or
allurements of the pecuniary arrangements of the legislative body.
It is not easy, therefore, to commend too highly the judicious
attention which has been paid to this subject in the proposed
Constitution. It is there provided that ``The President of the
United States shall, at stated times, receive for his services a
compensation WHICH SHALL NEITHER BE INCREASED NOR DIMINISHED DURING
THE PERIOD FOR WHICH HE SHALL HAVE BEEN ELECTED; and he SHALL NOT
RECEIVE WITHIN THAT PERIOD ANY OTHER EMOLUMENT from the United
States, or any of them.'' It is impossible to imagine any provision
which would have been more eligible than this. The legislature, on
the appointment of a President, is once for all to declare what
shall be the compensation for his services during the time for which
he shall have been elected. This done, they will have no power to
alter it, either by increase or diminution, till a new period of
service by a new election commences. They can neither weaken his
fortitude by operating on his necessities, nor corrupt his integrity
by appealing to his avarice. Neither the Union, nor any of its
members, will be at liberty to give, nor will he be at liberty to
receive, any other emolument than that which may have been
determined by the first act. He can, of course, have no pecuniary
inducement to renounce or desert the independence intended for him
by the Constitution.
The last of the requisites to energy, which have been
enumerated, are competent powers. Let us proceed to consider those
which are proposed to be vested in the President of the United
States.
The first thing that offers itself to our observation, is the
qualified negative of the President upon the acts or resolutions of
the two houses of the legislature; or, in other words, his power of
returning all bills with objections, to have the effect of
preventing their becoming laws, unless they should afterwards be
ratified by two thirds of each of the component members of the
legislative body.
The propensity of the legislative department to intrude upon the
rights, and to absorb the powers, of the other departments, has been
already suggested and repeated; the insufficiency of a mere
parchment delineation of the boundaries of each, has also been
remarked upon; and the necessity of furnishing each with
constitutional arms for its own defense, has been inferred and
proved. From these clear and indubitable principles results the
propriety of a negative, either absolute or qualified, in the
Executive, upon the acts of the legislative branches. Without the
one or the other, the former would be absolutely unable to defend
himself against the depredations of the latter. He might gradually
be stripped of his authorities by successive resolutions, or
annihilated by a single vote. And in the one mode or the other, the
legislative and executive powers might speedily come to be blended
in the same hands. If even no propensity had ever discovered itself
in the legislative body to invade the rights of the Executive, the
rules of just reasoning and theoretic propriety would of themselves
teach us, that the one ought not to be left to the mercy of the
other, but ought to possess a constitutional and effectual power of
selfdefense.
But the power in question has a further use. It not only serves
as a shield to the Executive, but it furnishes an additional
security against the enaction of improper laws. It establishes a
salutary check upon the legislative body, calculated to guard the
community against the effects of faction, precipitancy, or of any
impulse unfriendly to the public good, which may happen to influence
a majority of that body.
The propriety of a negative has, upon some occasions, been
combated by an observation, that it was not to be presumed a single
man would possess more virtue and wisdom than a number of men; and
that unless this presumption should be entertained, it would be
improper to give the executive magistrate any species of control
over the legislative body.
But this observation, when examined, will appear rather specious
than solid. The propriety of the thing does not turn upon the
supposition of superior wisdom or virtue in the Executive, but upon
the supposition that the legislature will not be infallible; that
the love of power may sometimes betray it into a disposition to
encroach upon the rights of other members of the government; that a
spirit of faction may sometimes pervert its deliberations; that
impressions of the moment may sometimes hurry it into measures which
itself, on maturer reflexion, would condemn. The primary inducement
to conferring the power in question upon the Executive is, to enable
him to defend himself; the secondary one is to increase the chances
in favor of the community against the passing of bad laws, through
haste, inadvertence, or design. The oftener the measure is brought
under examination, the greater the diversity in the situations of
those who are to examine it, the less must be the danger of those
errors which flow from want of due deliberation, or of those
missteps which proceed from the contagion of some common passion or
interest. It is far less probable, that culpable views of any kind
should infect all the parts of the government at the same moment and
in relation to the same object, than that they should by turns
govern and mislead every one of them.
It may perhaps be said that the power of preventing bad laws
includes that of preventing good ones; and may be used to the one
purpose as well as to the other. But this objection will have
little weight with those who can properly estimate the mischiefs of
that inconstancy and mutability in the laws, which form the greatest
blemish in the character and genius of our governments. They will
consider every institution calculated to restrain the excess of
law-making, and to keep things in the same state in which they
happen to be at any given period, as much more likely to do good
than harm; because it is favorable to greater stability in the
system of legislation. The injury which may possibly be done by
defeating a few good laws, will be amply compensated by the
advantage of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the
legislative body in a free government, and the hazard to the
Executive in a trial of strength with that body, afford a
satisfactory security that the negative would generally be employed
with great caution; and there would oftener be room for a charge of
timidity than of rashness in the exercise of it. A king of Great
Britain, with all his train of sovereign attributes, and with all
the influence he draws from a thousand sources, would, at this day,
hesitate to put a negative upon the joint resolutions of the two
houses of Parliament. He would not fail to exert the utmost
resources of that influence to strangle a measure disagreeable to
him, in its progress to the throne, to avoid being reduced to the
dilemma of permitting it to take effect, or of risking the
displeasure of the nation by an opposition to the sense of the
legislative body. Nor is it probable, that he would ultimately
venture to exert his prerogatives, but in a case of manifest
propriety, or extreme necessity. All well-informed men in that
kingdom will accede to the justness of this remark. A very
considerable period has elapsed since the negative of the crown has
been exercised.
If a magistrate so powerful and so well fortified as a British
monarch, would have scruples about the exercise of the power under
consideration, how much greater caution may be reasonably expected
in a President of the United States, clothed for the short period of
four years with the executive authority of a government wholly and
purely republican?
It is evident that there would be greater danger of his not
using his power when necessary, than of his using it too often, or
too much. An argument, indeed, against its expediency, has been
drawn from this very source. It has been represented, on this
account, as a power odious in appearance, useless in practice. But
it will not follow, that because it might be rarely exercised, it
would never be exercised. In the case for which it is chiefly
designed, that of an immediate attack upon the constitutional rights
of the Executive, or in a case in which the public good was
evidently and palpably sacrificed, a man of tolerable firmness would
avail himself of his constitutional means of defense, and would
listen to the admonitions of duty and responsibility. In the former
supposition, his fortitude would be stimulated by his immediate
interest in the power of his office; in the latter, by the
probability of the sanction of his constituents, who, though they
would naturally incline to the legislative body in a doubtful case,
would hardly suffer their partiality to delude them in a very plain
case. I speak now with an eye to a magistrate possessing only a
common share of firmness. There are men who, under any
circumstances, will have the courage to do their duty at every
hazard.
But the convention have pursued a mean in this business, which
will both facilitate the exercise of the power vested in this
respect in the executive magistrate, and make its efficacy to depend
on the sense of a considerable part of the legislative body.
Instead of an absolute negative, it is proposed to give the
Executive the qualified negative already described. This is a power
which would be much more readily exercised than the other. A man
who might be afraid to defeat a law by his single VETO, might not
scruple to return it for reconsideration; subject to being finally
rejected only in the event of more than one third of each house
concurring in the sufficiency of his objections. He would be
encouraged by the reflection, that if his opposition should prevail,
it would embark in it a very respectable proportion of the
legislative body, whose influence would be united with his in
supporting the propriety of his conduct in the public opinion. A
direct and categorical negative has something in the appearance of
it more harsh, and more apt to irritate, than the mere suggestion of
argumentative objections to be approved or disapproved by those to
whom they are addressed. In proportion as it would be less apt to
offend, it would be more apt to be exercised; and for this very
reason, it may in practice be found more effectual. It is to be
hoped that it will not often happen that improper views will govern
so large a proportion as two thirds of both branches of the
legislature at the same time; and this, too, in spite of the
counterposing weight of the Executive. It is at any rate far less
probable that this should be the case, than that such views should
taint the resolutions and conduct of a bare majority. A power of
this nature in the Executive, will often have a silent and
unperceived, though forcible, operation. When men, engaged in
unjustifiable pursuits, are aware that obstructions may come from a
quarter which they cannot control, they will often be restrained by
the bare apprehension of opposition, from doing what they would with
eagerness rush into, if no such external impediments were to be
feared.
This qualified negative, as has been elsewhere remarked, is in
this State vested in a council, consisting of the governor, with the
chancellor and judges of the Supreme Court, or any two of them. It
has been freely employed upon a variety of occasions, and frequently
with success. And its utility has become so apparent, that persons
who, in compiling the Constitution, were violent opposers of it,
have from experience become its declared admirers.1
I have in another place remarked, that the convention, in the
formation of this part of their plan, had departed from the model of
the constitution of this State, in favor of that of Massachusetts.
Two strong reasons may be imagined for this preference. One is
that the judges, who are to be the interpreters of the law, might
receive an improper bias, from having given a previous opinion in
their revisionary capacities; the other is that by being often
associated with the Executive, they might be induced to embark too
far in the political views of that magistrate, and thus a dangerous
combination might by degrees be cemented between the executive and
judiciary departments. It is impossible to keep the judges too
distinct from every other avocation than that of expounding the laws.
It is peculiarly dangerous to place them in a situation to be
either corrupted or influenced by the Executive.
PUBLIUS.
1 Mr. Abraham Yates, a warm opponent of the plan of the
convention is of this number.
FEDERALIST No. 74
The Command of the Military and Naval Forces, and the Pardoning
Power of the Executive
From the New York Packet.
Tuesday, March 25, 1788.
HAMILTON
To the People of the State of New York:
THE President of the United States is to be ``commander-in-chief
of the army and navy of the United States, and of the militia of the
several States WHEN CALLED INTO THE ACTUAL SERVICE of the United
States.'' The propriety of this provision is so evident in itself,
and it is, at the same time, so consonant to the precedents of the
State constitutions in general, that little need be said to explain
or enforce it. Even those of them which have, in other respects,
coupled the chief magistrate with a council, have for the most part
concentrated the military authority in him alone. Of all the cares
or concerns of government, the direction of war most peculiarly
demands those qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of the
common strength; and the power of directing and employing the
common strength, forms a usual and essential part in the definition
of the executive authority.
``The President may require the opinion, in writing, of the
principal officer in each of the executive departments, upon any
subject relating to the duties of their respective officers.'' This
I consider as a mere redundancy in the plan, as the right for which
it provides would result of itself from the office.
He is also to be authorized to grant ``reprieves and pardons for
offenses against the United States, EXCEPT IN CASES OF
IMPEACHMENT.'' Humanity and good policy conspire to dictate, that
the benign prerogative of pardoning should be as little as possible
fettered or embarrassed. The criminal code of every country
partakes so much of necessary severity, that without an easy access
to exceptions in favor of unfortunate guilt, justice would wear a
countenance too sanguinary and cruel. As the sense of
responsibility is always strongest, in proportion as it is
undivided, it may be inferred that a single man would be most ready
to attend to the force of those motives which might plead for a
mitigation of the rigor of the law, and least apt to yield to
considerations which were calculated to shelter a fit object of its
vengeance. The reflection that the fate of a fellow-creature
depended on his sole fiat, would naturally inspire
scrupulousness and caution; the dread of being accused of weakness
or connivance, would beget equal circumspection, though of a
different kind. On the other hand, as men generally derive
confidence from their numbers, they might often encourage each other
in an act of obduracy, and might be less sensible to the
apprehension of suspicion or censure for an injudicious or affected
clemency. On these accounts, one man appears to be a more eligible
dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the
President has, if I mistake not, been only contested in relation to
the crime of treason. This, it has been urged, ought to have
depended upon the assent of one, or both, of the branches of the
legislative body. I shall not deny that there are strong reasons to
be assigned for requiring in this particular the concurrence of that
body, or of a part of it. As treason is a crime levelled at the
immediate being of the society, when the laws have once ascertained
the guilt of the offender, there seems a fitness in referring the
expediency of an act of mercy towards him to the judgment of the
legislature. And this ought the rather to be the case, as the
supposition of the connivance of the Chief Magistrate ought not to
be entirely excluded. But there are also strong objections to such
a plan. It is not to be doubted, that a single man of prudence and
good sense is better fitted, in delicate conjunctures, to balance
the motives which may plead for and against the remission of the
punishment, than any numerous body whatever. It deserves particular
attention, that treason will often be connected with seditions which
embrace a large proportion of the community; as lately happened in
Massachusetts. In every such case, we might expect to see the
representation of the people tainted with the same spirit which had
given birth to the offense. And when parties were pretty equally
matched, the secret sympathy of the friends and favorers of the
condemned person, availing itself of the good-nature and weakness of
others, might frequently bestow impunity where the terror of an
example was necessary. On the other hand, when the sedition had
proceeded from causes which had inflamed the resentments of the
major party, they might often be found obstinate and inexorable,
when policy demanded a conduct of forbearance and clemency. But the
principal argument for reposing the power of pardoning in this case
to the Chief Magistrate is this: in seasons of insurrection or
rebellion, there are often critical moments, when a welltimed offer
of pardon to the insurgents or rebels may restore the tranquillity
of the commonwealth; and which, if suffered to pass unimproved, it
may never be possible afterwards to recall. The dilatory process of
convening the legislature, or one of its branches, for the purpose
of obtaining its sanction to the measure, would frequently be the
occasion of letting slip the golden opportunity. The loss of a
week, a day, an hour, may sometimes be fatal. If it should be
observed, that a discretionary power, with a view to such
contingencies, might be occasionally conferred upon the President,
it may be answered in the first place, that it is questionable,
whether, in a limited Constitution, that power could be delegated by
law; and in the second place, that it would generally be impolitic
beforehand to take any step which might hold out the prospect of
impunity. A proceeding of this kind, out of the usual course, would
be likely to be construed into an argument of timidity or of
weakness, and would have a tendency to embolden guilt.
PUBLIUS.
FEDERALIST No. 75
The Treaty-Making Power of the Executive
For the Independent Journal.
HAMILTON
To the People of the State of New York:
THE President is to have power, ``by and with the advice and
consent of the Senate, to make treaties, provided two thirds of the
senators present concur.''
Though this provision has been assailed, on different grounds,
with no small degree of vehemence, I scruple not to declare my firm
persuasion, that it is one of the best digested and most
unexceptionable parts of the plan. One ground of objection is the
trite topic of the intermixture of powers; some contending that the
President ought alone to possess the power of making treaties;
others, that it ought to have been exclusively deposited in the
Senate. Another source of objection is derived from the small
number of persons by whom a treaty may be made. Of those who
espouse this objection, a part are of opinion that the House of
Representatives ought to have been associated in the business, while
another part seem to think that nothing more was necessary than to
have substituted two thirds of ALL the members of the Senate, to two
thirds of the members PRESENT. As I flatter myself the observations
made in a preceding number upon this part of the plan must have
sufficed to place it, to a discerning eye, in a very favorable
light, I shall here content myself with offering only some
supplementary remarks, principally with a view to the objections
which have been just stated.
With regard to the intermixture of powers, I shall rely upon the
explanations already given in other places, of the true sense of the
rule upon which that objection is founded; and shall take it for
granted, as an inference from them, that the union of the Executive
with the Senate, in the article of treaties, is no infringement of
that rule. I venture to add, that the particular nature of the
power of making treaties indicates a peculiar propriety in that
union. Though several writers on the subject of government place
that power in the class of executive authorities, yet this is
evidently an arbitrary disposition; for if we attend carefully to
its operation, it will be found to partake more of the legislative
than of the executive character, though it does not seem strictly to
fall within the definition of either of them. The essence of the
legislative authority is to enact laws, or, in other words, to
prescribe rules for the regulation of the society; while the
execution of the laws, and the employment of the common strength,
either for this purpose or for the common defense, seem to comprise
all the functions of the executive magistrate. The power of making
treaties is, plainly, neither the one nor the other. It relates
neither to the execution of the subsisting laws, nor to the enaction
of new ones; and still less to an exertion of the common strength.
Its objects are CONTRACTS with foreign nations, which have the
force of law, but derive it from the obligations of good faith.
They are not rules prescribed by the sovereign to the subject, but
agreements between sovereign and sovereign. The power in question
seems therefore to form a distinct department, and to belong,
properly, neither to the legislative nor to the executive. The
qualities elsewhere detailed as indispensable in the management of
foreign negotiations, point out the Executive as the most fit agent
in those transactions; while the vast importance of the trust, and
the operation of treaties as laws, plead strongly for the
participation of the whole or a portion of the legislative body in
the office of making them.
However proper or safe it may be in governments where the
executive magistrate is an hereditary monarch, to commit to him the
entire power of making treaties, it would be utterly unsafe and
improper to intrust that power to an elective magistrate of four
years' duration. It has been remarked, upon another occasion, and
the remark is unquestionably just, that an hereditary monarch,
though often the oppressor of his people, has personally too much
stake in the government to be in any material danger of being
corrupted by foreign powers. But a man raised from the station of a
private citizen to the rank of chief magistrate, possessed of a
moderate or slender fortune, and looking forward to a period not
very remote when he may probably be obliged to return to the station
from which he was taken, might sometimes be under temptations to
sacrifice his duty to his interest, which it would require
superlative virtue to withstand. An avaricious man might be tempted
to betray the interests of the state to the acquisition of wealth.
An ambitious man might make his own aggrandizement, by the aid of a
foreign power, the price of his treachery to his constituents. The
history of human conduct does not warrant that exalted opinion of
human virtue which would make it wise in a nation to commit
interests of so delicate and momentous a kind, as those which
concern its intercourse with the rest of the world, to the sole
disposal of a magistrate created and circumstanced as would be a
President of the United States.
To have intrusted the power of making treaties to the Senate
alone, would have been to relinquish the benefits of the
constitutional agency of the President in the conduct of foreign
negotiations. It is true that the Senate would, in that case, have
the option of employing him in this capacity, but they would also
have the option of letting it alone, and pique or cabal might induce
the latter rather than the former. Besides this, the ministerial
servant of the Senate could not be expected to enjoy the confidence
and respect of foreign powers in the same degree with the
constitutional representatives of the nation, and, of course, would
not be able to act with an equal degree of weight or efficacy.
While the Union would, from this cause, lose a considerable
advantage in the management of its external concerns, the people
would lose the additional security which would result from the
co-operation of the Executive. Though it would be imprudent to
confide in him solely so important a trust, yet it cannot be doubted
that his participation would materially add to the safety of the
society. It must indeed be clear to a demonstration that the joint
possession of the power in question, by the President and Senate,
would afford a greater prospect of security, than the separate
possession of it by either of them. And whoever has maturely
weighed the circumstances which must concur in the appointment of a
President, will be satisfied that the office will always bid fair to
be filled by men of such characters as to render their concurrence
in the formation of treaties peculiarly desirable, as well on the
score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to
in another part of this paper, will apply with conclusive force
against the admission of the House of Representatives to a share in
the formation of treaties. The fluctuating and, taking its future
increase into the account, the multitudinous composition of that
body, forbid us to expect in it those qualities which are essential
to the proper execution of such a trust. Accurate and comprehensive
knowledge of foreign politics; a steady and systematic adherence to
the same views; a nice and uniform sensibility to national
character; decision, SECRECY, and despatch, are incompatible with
the genius of a body so variable and so numerous. The very
complication of the business, by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a
solid objection. The greater frequency of the calls upon the House
of Representatives, and the greater length of time which it would
often be necessary to keep them together when convened, to obtain
their sanction in the progressive stages of a treaty, would be a
source of so great inconvenience and expense as alone ought to
condemn the project.
The only objection which remains to be canvassed, is that which
would substitute the proportion of two thirds of all the members
composing the senatorial body, to that of two thirds of the members
PRESENT. It has been shown, under the second head of our inquiries,
that all provisions which require more than the majority of any body
to its resolutions, have a direct tendency to embarrass the
operations of the government, and an indirect one to subject the
sense of the majority to that of the minority. This consideration
seems sufficient to determine our opinion, that the convention have
gone as far in the endeavor to secure the advantage of numbers in
the formation of treaties as could have been reconciled either with
the activity of the public councils or with a reasonable regard to
the major sense of the community. If two thirds of the whole number
of members had been required, it would, in many cases, from the
non-attendance of a part, amount in practice to a necessity of
unanimity. And the history of every political establishment in
which this principle has prevailed, is a history of impotence,
perplexity, and disorder. Proofs of this position might be adduced
from the examples of the Roman Tribuneship, the Polish Diet, and the
States-General of the Netherlands, did not an example at home render
foreign precedents unnecessary.
To require a fixed proportion of the whole body would not, in
all probability, contribute to the advantages of a numerous agency,
better then merely to require a proportion of the attending members.
The former, by making a determinate number at all times requisite
to a resolution, diminishes the motives to punctual attendance. The
latter, by making the capacity of the body to depend on a PROPORTION
which may be varied by the absence or presence of a single member,
has the contrary effect. And as, by promoting punctuality, it tends
to keep the body complete, there is great likelihood that its
resolutions would generally be dictated by as great a number in this
case as in the other; while there would be much fewer occasions of
delay. It ought not to be forgotten that, under the existing
Confederation, two members MAY, and usually DO, represent a State;
whence it happens that Congress, who now are solely invested with
ALL THE POWERS of the Union, rarely consist of a greater number of
persons than would compose the intended Senate. If we add to this,
that as the members vote by States, and that where there is only a
single member present from a State, his vote is lost, it will
justify a supposition that the active voices in the Senate, where
the members are to vote individually, would rarely fall short in
number of the active voices in the existing Congress. When, in
addition to these considerations, we take into view the co-operation
of the President, we shall not hesitate to infer that the people of
America would have greater security against an improper use of the
power of making treaties, under the new Constitution, than they now
enjoy under the Confederation. And when we proceed still one step
further, and look forward to the probable augmentation of the
Senate, by the erection of new States, we shall not only perceive
ample ground of confidence in the sufficiency of the members to
whose agency that power will be intrusted, but we shall probably be
led to conclude that a body more numerous than the Senate would be
likely to become, would be very little fit for the proper discharge
of the trust.
PUBLIUS.
FEDERALIST No. 76
The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.
HAMILTON
To the People of the State of New York:
THE President is ``to NOMINATE, and, by and with the advice and
consent of the Senate, to appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other
officers of the United States whose appointments are not otherwise
provided for in the Constitution. But the Congress may by law vest
the appointment of such inferior officers as they think proper, in
the President alone, or in the courts of law, or in the heads of
departments. The President shall have power to fill up ALL
VACANCIES which may happen DURING THE RECESS OF THE SENATE, by
granting commissions which shall EXPIRE at the end of their next
session.''
It has been observed in a former paper, that ``the true test of
a good government is its aptitude and tendency to produce a good
administration.'' If the justness of this observation be admitted,
the mode of appointing the officers of the United States contained
in the foregoing clauses, must, when examined, be allowed to be
entitled to particular commendation. It is not easy to conceive a
plan better calculated than this to promote a judicious choice of
men for filling the offices of the Union; and it will not need
proof, that on this point must essentially depend the character of
its administration.
It will be agreed on all hands, that the power of appointment,
in ordinary cases, ought to be modified in one of three ways. It
ought either to be vested in a single man, or in a SELECT assembly
of a moderate number; or in a single man, with the concurrence of
such an assembly. The exercise of it by the people at large will be
readily admitted to be impracticable; as waiving every other
consideration, it would leave them little time to do anything else.
When, therefore, mention is made in the subsequent reasonings of an
assembly or body of men, what is said must be understood to relate
to a select body or assembly, of the description already given. The
people collectively, from their number and from their dispersed
situation, cannot be regulated in their movements by that systematic
spirit of cabal and intrigue, which will be urged as the chief
objections to reposing the power in question in a body of men.
Those who have themselves reflected upon the subject, or who
have attended to the observations made in other parts of these
papers, in relation to the appointment of the President, will, I
presume, agree to the position, that there would always be great
probability of having the place supplied by a man of abilities, at
least respectable. Premising this, I proceed to lay it down as a
rule, that one man of discernment is better fitted to analyze and
estimate the peculiar qualities adapted to particular offices, than
a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally
beget a livelier sense of duty and a more exact regard to reputation.
He will, on this account, feel himself under stronger obligations,
and more interested to investigate with care the qualities requisite
to the stations to be filled, and to prefer with impartiality the
persons who may have the fairest pretensions to them. He will have
FEWER personal attachments to gratify, than a body of men who may
each be supposed to have an equal number; and will be so much the
less liable to be misled by the sentiments of friendship and of
affection. A single well-directed man, by a single understanding,
cannot be distracted and warped by that diversity of views,
feelings, and interests, which frequently distract and warp the
resolutions of a collective body. There is nothing so apt to
agitate the passions of mankind as personal considerations whether
they relate to ourselves or to others, who are to be the objects of
our choice or preference. Hence, in every exercise of the power of
appointing to offices, by an assembly of men, we must expect to see
a full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any
time happen to be made under such circumstances, will of course be
the result either of a victory gained by one party over the other,
or of a compromise between the parties. In either case, the
intrinsic merit of the candidate will be too often out of sight. In
the first, the qualifications best adapted to uniting the suffrages
of the party, will be more considered than those which fit the
person for the station. In the last, the coalition will commonly
turn upon some interested equivalent: ``Give us the man we wish for
this office, and you shall have the one you wish for that.'' This
will be the usual condition of the bargain. And it will rarely
happen that the advancement of the public service will be the
primary object either of party victories or of party negotiations.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of NOMINATION, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference others, who are to be the objects of our choice or
preference. Hence, in every exercise of the power of appointing to
offices, by an assembly of men, we must expect to see a full display
of all the private and party likings and dislikes, partialities and
antipathies, attachments and animosities, which are felt by those
who compose the assembly. The choice which may at any time happen
to be made under such circumstances, will of course be the result
either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit
of the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party,
will be more considered than those which fit the person for the
station. In the last, the coalition will commonly turn upon some
interested equivalent: ``Give us the man we wish for this office,
and you shall have the one you wish for that.'' This will be the
usual condition of the bargain. And it will rarely happen that the
advancement of the public service will be the primary object either
of party victories or of party negotiations.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of NOMINATION, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference between nominating and appointing. The same motives
which would influence a proper discharge of his duty in one case,
would exist in the other. And as no man could be appointed but on
his previous nomination, every man who might be appointed would be,
in fact, his choice.
But might not his nomination be overruled? I grant it might,
yet this could only be to make place for another nomination by
himself. The person ultimately appointed must be the object of his
preference, though perhaps not in the first degree. It is also not
very probable that his nomination would often be overruled. The
Senate could not be tempted, by the preference they might feel to
another, to reject the one proposed; because they could not assure
themselves, that the person they might wish would be brought forward
by a second or by any subsequent nomination. They could not even be
certain, that a future nomination would present a candidate in any
degree more acceptable to them; and as their dissent might cast a
kind of stigma upon the individual rejected, and might have the
appearance of a reflection upon the judgment of the chief
magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the
refusal.
To what purpose then require the co-operation of the Senate? I
answer, that the necessity of their concurrence would have a
powerful, though, in general, a silent operation. It would be an
excellent check upon a spirit of favoritism in the President, and
would tend greatly to prevent the appointment of unfit characters
from State prejudice, from family connection, from personal
attachment, or from a view to popularity. In addition to this, it
would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the
sole disposition of offices, would be governed much more by his
private inclinations and interests, than when he was bound to submit
the propriety of his choice to the discussion and determination of a
different and independent body, and that body an entier branch of
the legislature. The possibility of rejection would be a strong
motive to care in proposing. The danger to his own reputation, and,
in the case of an elective magistrate, to his political existence,
from betraying a spirit of favoritism, or an unbecoming pursuit of
popularity, to the observation of a body whose opinion would have
great weight in forming that of the public, could not fail to
operate as a barrier to the one and to the other. He would be both
ashamed and afraid to bring forward, for the most distinguished or
lucrative stations, candidates who had no other merit than that of
coming from the same State to which he particularly belonged, or of
being in some way or other personally allied to him, or of
possessing the necessary insignificance and pliancy to render them
the obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by
the influence of the power of nomination, may secure the
complaisance of the Senate to his views. This supposition of
universal venalty in human nature is little less an error in
political reasoning, than the supposition of universal rectitude.
The institution of delegated power implies, that there is a portion
of virtue and honor among mankind, which may be a reasonable
foundation of confidence; and experience justifies the theory. It
has been found to exist in the most corrupt periods of the most
corrupt governments. The venalty of the British House of Commons
has been long a topic of accusation against that body, in the
country to which they belong as well as in this; and it cannot be
doubted that the charge is, to a considerable extent, well founded.
But it is as little to be doubted, that there is always a large
proportion of the body, which consists of independent and
public-spirited men, who have an influential weight in the councils
of the nation. Hence it is (the present reign not excepted) that
the sense of that body is often seen to control the inclinations of
the monarch, both with regard to men and to measures. Though it
might therefore be allowable to suppose that the Executive might
occasionally influence some individuals in the Senate, yet the
supposition, that he could in general purchase the integrity of the
whole body, would be forced and improbable. A man disposed to view
human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in
the probity of the Senate, to rest satisfied, not only that it will
be impracticable to the Executive to corrupt or seduce a majority of
its members, but that the necessity of its co-operation, in the
business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity
of the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that ``No senator or representative
shall during the time FOR WHICH HE WAS ELECTED, be appointed to any
civil office under the United States, which shall have been created,
or the emoluments whereof shall have been increased, during such
time; and no person, holding any office under the United States,
shall be a member of either house during his continuance in
office.''
PUBLIUS.
FEDERALIST No. 77
The Appointing Power Continued and Other Powers of the Executive
Considered
From the New York Packet.
Friday, April 4, 1788.
HAMILTON
To the People of the State of New York:
IT HAS been mentioned as one of the advantages to be expected
from the co-operation of the Senate, in the business of
appointments, that it would contribute to the stability of the
administration. The consent of that body would be necessary to
displace as well as to appoint. A change of the Chief Magistrate,
therefore, would not occasion so violent or so general a revolution
in the officers of the government as might be expected, if he were
the sole disposer of offices. Where a man in any station had given
satisfactory evidence of his fitness for it, a new President would
be restrained from attempting a change in favor of a person more
agreeable to him, by the apprehension that a discountenance of the
Senate might frustrate the attempt, and bring some degree of
discredit upon himself. Those who can best estimate the value of a
steady administration, will be most disposed to prize a provision
which connects the official existence of public men with the
approbation or disapprobation of that body which, from the greater
permanency of its own composition, will in all probability be less
subject to inconstancy than any other member of the government.
To this union of the Senate with the President, in the article
of appointments, it has in some cases been suggested that it would
serve to give the President an undue influence over the Senate, and
in others that it would have an opposite tendency, a strong proof
that neither suggestion is true.
To state the first in its proper form, is to refute it. It
amounts to this: the President would have an improper INFLUENCE
OVER the Senate, because the Senate would have the power of
RESTRAINING him. This is an absurdity in terms. It cannot admit of
a doubt that the entire power of appointment would enable him much
more effectually to establish a dangerous empire over that body,
than a mere power of nomination subject to their control.
Let us take a view of the converse of the proposition: ``the
Senate would influence the Executive.'' As I have had occasion to
remark in several other instances, the indistinctness of the
objection forbids a precise answer. In what manner is this
influence to be exerted? In relation to what objects? The power of
influencing a person, in the sense in which it is here used, must
imply a power of conferring a benefit upon him. How could the
Senate confer a benefit upon the President by the manner of
employing their right of negative upon his nominations? If it be
said they might sometimes gratify him by an acquiescence in a
favorite choice, when public motives might dictate a different
conduct, I answer, that the instances in which the President could
be personally interested in the result, would be too few to admit of
his being materially affected by the compliances of the Senate. The
POWER which can ORIGINATE the disposition of honors and emoluments,
is more likely to attract than to be attracted by the POWER which
can merely obstruct their course. If by influencing the President
be meant RESTRAINING him, this is precisely what must have been
intended. And it has been shown that the restraint would be
salutary, at the same time that it would not be such as to destroy a
single advantage to be looked for from the uncontrolled agency of
that Magistrate. The right of nomination would produce all the good
of that of appointment, and would in a great measure avoid its evils.
Upon a comparison of the plan for the appointment of the
officers of the proposed government with that which is established
by the constitution of this State, a decided preference must be
given to the former. In that plan the power of nomination is
unequivocally vested in the Executive. And as there would be a
necessity for submitting each nomination to the judgment of an
entire branch of the legislature, the circumstances attending an
appointment, from the mode of conducting it, would naturally become
matters of notoriety; and the public would be at no loss to
determine what part had been performed by the different actors. The
blame of a bad nomination would fall upon the President singly and
absolutely. The censure of rejecting a good one would lie entirely
at the door of the Senate; aggravated by the consideration of their
having counteracted the good intentions of the Executive. If an ill
appointment should be made, the Executive for nominating, and the
Senate for approving, would participate, though in different
degrees, in the opprobrium and disgrace.
The reverse of all this characterizes the manner of appointment
in this State. The council of appointment consists of from three to
five persons, of whom the governor is always one. This small body,
shut up in a private apartment, impenetrable to the public eye,
proceed to the execution of the trust committed to them. It is
known that the governor claims the right of nomination, upon the
strength of some ambiguous expressions in the constitution; but it
is not known to what extent, or in what manner he exercises it; nor
upon what occasions he is contradicted or opposed. The censure of a
bad appointment, on account of the uncertainty of its author, and
for want of a determinate object, has neither poignancy nor duration.
And while an unbounded field for cabal and intrigue lies open, all
idea of responsibility is lost. The most that the public can know,
is that the governor claims the right of nomination; that TWO out
of the inconsiderable number of FOUR men can too often be managed
without much difficulty; that if some of the members of a
particular council should happen to be of an uncomplying character,
it is frequently not impossible to get rid of their opposition by
regulating the times of meeting in such a manner as to render their
attendance inconvenient; and that from whatever cause it may
proceed, a great number of very improper appointments are from time
to time made. Whether a governor of this State avails himself of
the ascendant he must necessarily have, in this delicate and
important part of the administration, to prefer to offices men who
are best qualified for them, or whether he prostitutes that
advantage to the advancement of persons whose chief merit is their
implicit devotion to his will, and to the support of a despicable
and dangerous system of personal influence, are questions which,
unfortunately for the community, can only be the subjects of
speculation and conjecture.
Every mere council of appointment, however constituted, will be
a conclave, in which cabal and intrigue will have their full scope.
Their number, without an unwarrantable increase of expense, cannot
be large enough to preclude a facility of combination. And as each
member will have his friends and connections to provide for, the
desire of mutual gratification will beget a scandalous bartering of
votes and bargaining for places. The private attachments of one man
might easily be satisfied; but to satisfy the private attachments
of a dozen, or of twenty men, would occasion a monopoly of all the
principal employments of the government in a few families, and would
lead more directly to an aristocracy or an oligarchy than any
measure that could be contrived. If, to avoid an accumulation of
offices, there was to be a frequent change in the persons who were
to compose the council, this would involve the mischiefs of a
mutable administration in their full extent. Such a council would
also be more liable to executive influence than the Senate, because
they would be fewer in number, and would act less immediately under
the public inspection. Such a council, in fine, as a substitute for
the plan of the convention, would be productive of an increase of
expense, a multiplication of the evils which spring from favoritism
and intrigue in the distribution of public honors, a decrease of
stability in the administration of the government, and a diminution
of the security against an undue influence of the Executive. And
yet such a council has been warmly contended for as an essential
amendment in the proposed Constitution.
I could not with propriety conclude my observations on the
subject of appointments without taking notice of a scheme for which
there have appeared some, though but few advocates; I mean that of
uniting the House of Representatives in the power of making them. I
shall, however, do little more than mention it, as I cannot imagine
that it is likely to gain the countenance of any considerable part
of the community. A body so fluctuating and at the same time so
numerous, can never be deemed proper for the exercise of that power.
Its unfitness will appear manifest to all, when it is recollected
that in half a century it may consist of three or four hundred
persons. All the advantages of the stability, both of the Executive
and of the Senate, would be defeated by this union, and infinite
delays and embarrassments would be occasioned. The example of most
of the States in their local constitutions encourages us to
reprobate the idea.
The only remaining powers of the Executive are comprehended in
giving information to Congress of the state of the Union; in
recommending to their consideration such measures as he shall judge
expedient; in convening them, or either branch, upon extraordinary
occasions; in adjourning them when they cannot themselves agree
upon the time of adjournment; in receiving ambassadors and other
public ministers; in faithfully executing the laws; and in
commissioning all the officers of the United States.
Except some cavils about the power of convening EITHER house of
the legislature, and that of receiving ambassadors, no objection has
been made to this class of authorities; nor could they possibly
admit of any. It required, indeed, an insatiable avidity for
censure to invent exceptions to the parts which have been excepted
to. In regard to the power of convening either house of the
legislature, I shall barely remark, that in respect to the Senate at
least, we can readily discover a good reason for it. AS this body
has a concurrent power with the Executive in the article of
treaties, it might often be necessary to call it together with a
view to this object, when it would be unnecessary and improper to
convene the House of Representatives. As to the reception of
ambassadors, what I have said in a former paper will furnish a
sufficient answer.
We have now completed a survey of the structure and powers of
the executive department, which, I have endeavored to show,
combines, as far as republican principles will admit, all the
requisites to energy. The remaining inquiry is: Does it also
combine the requisites to safety, in a republican sense, a due
dependence on the people, a due responsibility? The answer to this
question has been anticipated in the investigation of its other
characteristics, and is satisfactorily deducible from these
circumstances; from the election of the President once in four
years by persons immediately chosen by the people for that purpose;
and from his being at all times liable to impeachment, trial,
dismission from office, incapacity to serve in any other, and to
forfeiture of life and estate by subsequent prosecution in the
common course of law. But these precautions, great as they are, are
not the only ones which the plan of the convention has provided in
favor of the public security. In the only instances in which the
abuse of the executive authority was materially to be feared, the
Chief Magistrate of the United States would, by that plan, be
subjected to the control of a branch of the legislative body. What
more could be desired by an enlightened and reasonable people?
PUBLIUS.
FEDERALIST No. 78
The Judiciary Department
From McLEAN'S Edition, New York.
HAMILTON
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary department of
the proposed government.
In unfolding the defects of the existing Confederation, the
utility and necessity of a federal judicature have been clearly
pointed out. It is the less necessary to recapitulate the
considerations there urged, as the propriety of the institution in
the abstract is not disputed; the only questions which have been
raised being relative to the manner of constituting it, and to its
extent. To these points, therefore, our observations shall be
confined.
The manner of constituting it seems to embrace these several
objects: 1st. The mode of appointing the judges. 2d. The tenure by
which they are to hold their places. 3d. The partition of the
judiciary authority between different courts, and their relations to
each other.
First. As to the mode of appointing the judges; this is
the same with that of appointing the officers of the Union in
general, and has been so fully discussed in the two last numbers,
that nothing can be said here which would not be useless repetition.
Second. As to the tenure by which the judges are to hold
their places; this chiefly concerns their duration in office; the
provisions for their support; the precautions for their
responsibility.
According to the plan of the convention, all judges who may be
appointed by the United States are to hold their offices DURING GOOD
BEHAVIOR; which is conformable to the most approved of the State
constitutions and among the rest, to that of this State. Its
propriety having been drawn into question by the adversaries of that
plan, is no light symptom of the rage for objection, which disorders
their imaginations and judgments. The standard of good behavior for
the continuance in office of the judicial magistracy, is certainly
one of the most valuable of the modern improvements in the practice
of government. In a monarchy it is an excellent barrier to the
despotism of the prince; in a republic it is a no less excellent
barrier to the encroachments and oppressions of the representative
body. And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial
administration of the laws.
Whoever attentively considers the different departments of power
must perceive, that, in a government in which they are separated
from each other, the judiciary, from the nature of its functions,
will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or
injure them. The Executive not only dispenses the honors, but holds
the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of
every citizen are to be regulated. The judiciary, on the contrary,
has no influence over either the sword or the purse; no direction
either of the strength or of the wealth of the society; and can
take no active resolution whatever. It may truly be said to have
neither FORCE nor WILL, but merely judgment; and must ultimately
depend upon the aid of the executive arm even for the efficacy of
its judgments.
This simple view of the matter suggests several important
consequences. It proves incontestably, that the judiciary is beyond
comparison the weakest of the three departments of power1; that
it can never attack with success either of the other two; and that
all possible care is requisite to enable it to defend itself against
their attacks. It equally proves, that though individual oppression
may now and then proceed from the courts of justice, the general
liberty of the people can never be endangered from that quarter; I
mean so long as the judiciary remains truly distinct from both the
legislature and the Executive. For I agree, that ``there is no
liberty, if the power of judging be not separated from the
legislative and executive powers.''2 And it proves, in the last
place, that as liberty can have nothing to fear from the judiciary
alone, but would have every thing to fear from its union with either
of the other departments; that as all the effects of such a union
must ensue from a dependence of the former on the latter,
notwithstanding a nominal and apparent separation; that as, from
the natural feebleness of the judiciary, it is in continual jeopardy
of being overpowered, awed, or influenced by its co-ordinate
branches; and that as nothing can contribute so much to its
firmness and independence as permanency in office, this quality may
therefore be justly regarded as an indispensable ingredient in its
constitution, and, in a great measure, as the citadel of the public
justice and the public security.
The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the
legislative authority; such, for instance, as that it shall pass no
bills of attainder, no ex-post-facto laws, and the like.
Limitations of this kind can be preserved in practice no other way
than through the medium of courts of justice, whose duty it must be
to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of particular
rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has
arisen from an imagination that the doctrine would imply a
superiority of the judiciary to the legislative power. It is urged
that the authority which can declare the acts of another void, must
necessarily be superior to the one whose acts may be declared void.
As this doctrine is of great importance in all the American
constitutions, a brief discussion of the ground on which it rests
cannot be unacceptable.
There is no position which depends on clearer principles, than
that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this, would be to affirm, that the deputy is greater than his
principal; that the servant is above his master; that the
representatives of the people are superior to the people themselves;
that men acting by virtue of powers, may do not only what their
powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the construction
they put upon them is conclusive upon the other departments, it may
be answered, that this cannot be the natural presumption, where it
is not to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that the
Constitution could intend to enable the representatives of the
people to substitute their WILL to that of their constituents. It
is far more rational to suppose, that the courts were designed to be
an intermediate body between the people and the legislature, in
order, among other things, to keep the latter within the limits
assigned to their authority. The interpretation of the laws is the
proper and peculiar province of the courts. A constitution is, in
fact, and must be regarded by the judges, as a fundamental law. It
therefore belongs to them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the legislative body.
If there should happen to be an irreconcilable variance between the
two, that which has the superior obligation and validity ought, of
course, to be preferred; or, in other words, the Constitution ought
to be preferred to the statute, the intention of the people to the
intention of their agents.
Nor does this conclusion by any means suppose a superiority of
the judicial to the legislative power. It only supposes that the
power of the people is superior to both; and that where the will of
the legislature, declared in its statutes, stands in opposition to
that of the people, declared in the Constitution, the judges ought
to be governed by the latter rather than the former. They ought to
regulate their decisions by the fundamental laws, rather than by
those which are not fundamental.
This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at one
time, clashing in whole or in part with each other, and neither of
them containing any repealing clause or expression. In such a case,
it is the province of the courts to liquidate and fix their meaning
and operation. So far as they can, by any fair construction, be
reconciled to each other, reason and law conspire to dictate that
this should be done; where this is impracticable, it becomes a
matter of necessity to give effect to one, in exclusion of the other.
The rule which has obtained in the courts for determining their
relative validity is, that the last in order of time shall be
preferred to the first. But this is a mere rule of construction,
not derived from any positive law, but from the nature and reason of
the thing. It is a rule not enjoined upon the courts by legislative
provision, but adopted by themselves, as consonant to truth and
propriety, for the direction of their conduct as interpreters of the
law. They thought it reasonable, that between the interfering acts
of an EQUAL authority, that which was the last indication of its
will should have the preference.
But in regard to the interfering acts of a superior and
subordinate authority, of an original and derivative power, the
nature and reason of the thing indicate the converse of that rule as
proper to be followed. They teach us that the prior act of a
superior ought to be preferred to the subsequent act of an inferior
and subordinate authority; and that accordingly, whenever a
particular statute contravenes the Constitution, it will be the duty
of the judicial tribunals to adhere to the latter and disregard the
former.
It can be of no weight to say that the courts, on the pretense
of a repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature. This might as well
happen in the case of two contradictory statutes; or it might as
well happen in every adjudication upon any single statute. The
courts must declare the sense of the law; and if they should be
disposed to exercise WILL instead of JUDGMENT, the consequence would
equally be the substitution of their pleasure to that of the
legislative body. The observation, if it prove any thing, would
prove that there ought to be no judges distinct from that body.
If, then, the courts of justice are to be considered as the
bulwarks of a limited Constitution against legislative
encroachments, this consideration will afford a strong argument for
the permanent tenure of judicial offices, since nothing will
contribute so much as this to that independent spirit in the judges
which must be essential to the faithful performance of so arduous a
duty.
This independence of the judges is equally requisite to guard
the Constitution and the rights of individuals from the effects of
those ill humors, which the arts of designing men, or the influence
of particular conjunctures, sometimes disseminate among the people
themselves, and which, though they speedily give place to better
information, and more deliberate reflection, have a tendency, in the
meantime, to occasion dangerous innovations in the government, and
serious oppressions of the minor party in the community. Though I
trust the friends of the proposed Constitution will never concur
with its enemies,3 in questioning that fundamental principle of
republican government, which admits the right of the people to alter
or abolish the established Constitution, whenever they find it
inconsistent with their happiness, yet it is not to be inferred from
this principle, that the representatives of the people, whenever a
momentary inclination happens to lay hold of a majority of their
constituents, incompatible with the provisions in the existing
Constitution, would, on that account, be justifiable in a violation
of those provisions; or that the courts would be under a greater
obligation to connive at infractions in this shape, than when they
had proceeded wholly from the cabals of the representative body.
Until the people have, by some solemn and authoritative act,
annulled or changed the established form, it is binding upon
themselves collectively, as well as individually; and no
presumption, or even knowledge, of their sentiments, can warrant
their representatives in a departure from it, prior to such an act.
But it is easy to see, that it would require an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the Constitution, where legislative invasions of it had been
instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution
only, that the independence of the judges may be an essential
safeguard against the effects of occasional ill humors in the
society. These sometimes extend no farther than to the injury of
the private rights of particular classes of citizens, by unjust and
partial laws. Here also the firmness of the judicial magistracy is
of vast importance in mitigating the severity and confining the
operation of such laws. It not only serves to moderate the
immediate mischiefs of those which may have been passed, but it
operates as a check upon the legislative body in passing them; who,
perceiving that obstacles to the success of iniquitous intention are
to be expected from the scruples of the courts, are in a manner
compelled, by the very motives of the injustice they meditate, to
qualify their attempts. This is a circumstance calculated to have
more influence upon the character of our governments, than but few
may be aware of. The benefits of the integrity and moderation of
the judiciary have already been felt in more States than one; and
though they may have displeased those whose sinister expectations
they may have disappointed, they must have commanded the esteem and
applause of all the virtuous and disinterested. Considerate men, of
every description, ought to prize whatever will tend to beget or
fortify that temper in the courts: as no man can be sure that he
may not be to-morrow the victim of a spirit of injustice, by which
he may be a gainer to-day. And every man must now feel, that the
inevitable tendency of such a spirit is to sap the foundations of
public and private confidence, and to introduce in its stead
universal distrust and distress.
That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be
indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by a temporary
commission. Periodical appointments, however regulated, or by
whomsoever made, would, in some way or other, be fatal to their
necessary independence. If the power of making them was committed
either to the Executive or legislature, there would be danger of an
improper complaisance to the branch which possessed it; if to both,
there would be an unwillingness to hazard the displeasure of either;
if to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult
popularity, to justify a reliance that nothing would be consulted
but the Constitution and the laws.
There is yet a further and a weightier reason for the permanency
of the judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with
great propriety, that a voluminous code of laws is one of the
inconveniences necessarily connected with the advantages of a free
government. To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every
particular case that comes before them; and it will readily be
conceived from the variety of controversies which grow out of the
folly and wickedness of mankind, that the records of those
precedents must unavoidably swell to a very considerable bulk, and
must demand long and laborious study to acquire a competent
knowledge of them. Hence it is, that there can be but few men in
the society who will have sufficient skill in the laws to qualify
them for the stations of judges. And making the proper deductions
for the ordinary depravity of human nature, the number must be still
smaller of those who unite the requisite integrity with the
requisite knowledge. These considerations apprise us, that the
government can have no great option between fit character; and that
a temporary duration in office, which would naturally discourage
such characters from quitting a lucrative line of practice to accept
a seat on the bench, would have a tendency to throw the
administration of justice into hands less able, and less well
qualified, to conduct it with utility and dignity. In the present
circumstances of this country, and in those in which it is likely to
be for a long time to come, the disadvantages on this score would be
greater than they may at first sight appear; but it must be
confessed, that they are far inferior to those which present
themselves under the other aspects of the subject.
Upon the whole, there can be no room to doubt that the
convention acted wisely in copying from the models of those
constitutions which have established GOOD BEHAVIOR as the tenure of
their judicial offices, in point of duration; and that so far from
being blamable on this account, their plan would have been
inexcusably defective, if it had wanted this important feature of
good government. The experience of Great Britain affords an
illustrious comment on the excellence of the institution.
PUBLIUS.
1 The celebrated Montesquieu, speaking of them, says: ``Of the
three powers above mentioned, the judiciary is next to
nothing.'' ``Spirit of Laws.'' vol. i., page 186.
2 Idem, page 181.
3 Vide ``Protest of the Minority of the Convention of
Pennsylvania,'' Martin's Speech, etc.
FEDERALIST No. 79
The Judiciary Continued
From MCLEAN's Edition, New York.
HAMILTON
To the People of the State of New York:
NEXT to permanency in office, nothing can contribute more to the
independence of the judges than a fixed provision for their support.
The remark made in relation to the President is equally applicable
here. In the general course of human nature, A POWER OVER A MAN's
SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL. And we can never hope
to see realized in practice, the complete separation of the judicial
from the legislative power, in any system which leaves the former
dependent for pecuniary resources on the occasional grants of the
latter. The enlightened friends to good government in every State,
have seen cause to lament the want of precise and explicit
precautions in the State constitutions on this head. Some of these
indeed have declared that PERMANENT1 salaries should be
established for the judges; but the experiment has in some
instances shown that such expressions are not sufficiently definite
to preclude legislative evasions. Something still more positive and
unequivocal has been evinced to be requisite. The plan of the
convention accordingly has provided that the judges of the United
States ``shall at STATED TIMES receive for their services a
compensation which shall not be DIMINISHED during their continuance
in office.''
This, all circumstances considered, is the most eligible
provision that could have been devised. It will readily be
understood that the fluctuations in the value of money and in the
state of society rendered a fixed rate of compensation in the
Constitution inadmissible. What might be extravagant to-day, might
in half a century become penurious and inadequate. It was therefore
necessary to leave it to the discretion of the legislature to vary
its provisions in conformity to the variations in circumstances, yet
under such restrictions as to put it out of the power of that body
to change the condition of the individual for the worse. A man may
then be sure of the ground upon which he stands, and can never be
deterred from his duty by the apprehension of being placed in a less
eligible situation. The clause which has been quoted combines both
advantages. The salaries of judicial officers may from time to time
be altered, as occasion shall require, yet so as never to lessen the
allowance with which any particular judge comes into office, in
respect to him. It will be observed that a difference has been made
by the convention between the compensation of the President and of
the judges, That of the former can neither be increased nor
diminished; that of the latter can only not be diminished. This
probably arose from the difference in the duration of the respective
offices. As the President is to be elected for no more than four
years, it can rarely happen that an adequate salary, fixed at the
commencement of that period, will not continue to be such to its end.
But with regard to the judges, who, if they behave properly, will
be secured in their places for life, it may well happen, especially
in the early stages of the government, that a stipend, which would
be very sufficient at their first appointment, would become too
small in the progress of their service.
This provision for the support of the judges bears every mark of
prudence and efficacy; and it may be safely affirmed that, together
with the permanent tenure of their offices, it affords a better
prospect of their independence than is discoverable in the
constitutions of any of the States in regard to their own judges.
The precautions for their responsibility are comprised in the
article respecting impeachments. They are liable to be impeached
for malconduct by the House of Representatives, and tried by the
Senate; and, if convicted, may be dismissed from office, and
disqualified for holding any other. This is the only provision on
the point which is consistent with the necessary independence of the
judicial character, and is the only one which we find in our own
Constitution in respect to our own judges.
The want of a provision for removing the judges on account of
inability has been a subject of complaint. But all considerate men
will be sensible that such a provision would either not be practiced
upon or would be more liable to abuse than calculated to answer any
good purpose. The mensuration of the faculties of the mind has, I
believe, no place in the catalogue of known arts. An attempt to fix
the boundary between the regions of ability and inability, would
much oftener give scope to personal and party attachments and
enmities than advance the interests of justice or the public good.
The result, except in the case of insanity, must for the most part
be arbitrary; and insanity, without any formal or express
provision, may be safely pronounced to be a virtual disqualification.
The constitution of New York, to avoid investigations that must
forever be vague and dangerous, has taken a particular age as the
criterion of inability. No man can be a judge beyond sixty. I
believe there are few at present who do not disapprove of this
provision. There is no station, in relation to which it is less
proper than to that of a judge. The deliberating and comparing
faculties generally preserve their strength much beyond that period
in men who survive it; and when, in addition to this circumstance,
we consider how few there are who outlive the season of intellectual
vigor, and how improbable it is that any considerable portion of the
bench, whether more or less numerous, should be in such a situation
at the same time, we shall be ready to conclude that limitations of
this sort have little to recommend them. In a republic, where
fortunes are not affluent, and pensions not expedient, the
dismission of men from stations in which they have served their
country long and usefully, on which they depend for subsistence, and
from which it will be too late to resort to any other occupation for
a livelihood, ought to have some better apology to humanity than is
to be found in the imaginary danger of a superannuated bench.
PUBLIUS.
1 Vide ``Constitution of Massachusetts,'' chapter 2, section
I, article 13.
FEDERALIST No. 80
The Powers of the Judiciary
From McLEAN's Edition, New York.
HAMILTON
To the People of the State of New York:
To JUDGE with accuracy of the proper extent of the federal
judicature, it will be necessary to consider, in the first place,
what are its proper objects.
It seems scarcely to admit of controversy, that the judicary
authority of the Union ought to extend to these several descriptions
of cases: 1st, to all those which arise out of the laws of the
United States, passed in pursuance of their just and constitutional
powers of legislation; 2d, to all those which concern the execution
of the provisions expressly contained in the articles of Union; 3d,
to all those in which the United States are a party; 4th, to all
those which involve the PEACE of the CONFEDERACY, whether they
relate to the intercourse between the United States and foreign
nations, or to that between the States themselves; 5th, to all
those which originate on the high seas, and are of admiralty or
maritime jurisdiction; and, lastly, to all those in which the State
tribunals cannot be supposed to be impartial and unbiased.
The first point depends upon this obvious consideration, that
there ought always to be a constitutional method of giving efficacy
to constitutional provisions. What, for instance, would avail
restrictions on the authority of the State legislatures, without
some constitutional mode of enforcing the observance of them? The
States, by the plan of the convention, are prohibited from doing a
variety of things, some of which are incompatible with the interests
of the Union, and others with the principles of good government.
The imposition of duties on imported articles, and the emission of
paper money, are specimens of each kind. No man of sense will
believe, that such prohibitions would be scrupulously regarded,
without some effectual power in the government to restrain or
correct the infractions of them. This power must either be a direct
negative on the State laws, or an authority in the federal courts to
overrule such as might be in manifest contravention of the articles
of Union. There is no third course that I can imagine. The latter
appears to have been thought by the convention preferable to the
former, and, I presume, will be most agreeable to the States.
As to the second point, it is impossible, by any argument or
comment, to make it clearer than it is in itself. If there are such
things as political axioms, the propriety of the judicial power of a
government being coextensive with its legislative, may be ranked
among the number. The mere necessity of uniformity in the
interpretation of the national laws, decides the question. Thirteen
independent courts of final jurisdiction over the same causes,
arising upon the same laws, is a hydra in government, from which
nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point.
Controversies between the nation and its members or citizens, can
only be properly referred to the national tribunals. Any other plan
would be contrary to reason, to precedent, and to decorum.
The fourth point rests on this plain proposition, that the peace
of the WHOLE ought not to be left at the disposal of a PART. The
Union will undoubtedly be answerable to foreign powers for the
conduct of its members. And the responsibility for an injury ought
ever to be accompanied with the faculty of preventing it. As the
denial or perversion of justice by the sentences of courts, as well
as in any other manner, is with reason classed among the just causes
of war, it will follow that the federal judiciary ought to have
cognizance of all causes in which the citizens of other countries
are concerned. This is not less essential to the preservation of
the public faith, than to the security of the public tranquillity.
A distinction may perhaps be imagined between cases arising upon
treaties and the laws of nations and those which may stand merely on
the footing of the municipal law. The former kind may be supposed
proper for the federal jurisdiction, the latter for that of the
States. But it is at least problematical, whether an unjust
sentence against a foreigner, where the subject of controversy was
wholly relative to the lex loci, would not, if unredressed, be
an aggression upon his sovereign, as well as one which violated the
stipulations of a treaty or the general law of nations. And a still
greater objection to the distinction would result from the immense
difficulty, if not impossibility, of a practical discrimination
between the cases of one complexion and those of the other. So
great a proportion of the cases in which foreigners are parties,
involve national questions, that it is by far most safe and most
expedient to refer all those in which they are concerned to the
national tribunals.
The power of determining causes between two States, between one
State and the citizens of another, and between the citizens of
different States, is perhaps not less essential to the peace of the
Union than that which has been just examined. History gives us a
horrid picture of the dissensions and private wars which distracted
and desolated Germany prior to the institution of the Imperial
Chamber by Maximilian, towards the close of the fifteenth century;
and informs us, at the same time, of the vast influence of that
institution in appeasing the disorders and establishing the
tranquillity of the empire. This was a court invested with
authority to decide finally all differences among the members of the
Germanic body.
A method of terminating territorial disputes between the States,
under the authority of the federal head, was not unattended to, even
in the imperfect system by which they have been hitherto held
together. But there are many other sources, besides interfering
claims of boundary, from which bickerings and animosities may spring
up among the members of the Union. To some of these we have been
witnesses in the course of our past experience. It will readily be
conjectured that I allude to the fraudulent laws which have been
passed in too many of the States. And though the proposed
Constitution establishes particular guards against the repetition of
those instances which have heretofore made their appearance, yet it
is warrantable to apprehend that the spirit which produced them will
assume new shapes, that could not be foreseen nor specifically
provided against. Whatever practices may have a tendency to disturb
the harmony between the States, are proper objects of federal
superintendence and control.
It may be esteemed the basis of the Union, that ``the citizens
of each State shall be entitled to all the privileges and immunities
of citizens of the several States.'' And if it be a just principle
that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS
OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order
to the inviolable maintenance of that equality of privileges and
immunities to which the citizens of the Union will be entitled, the
national judiciary ought to preside in all cases in which one State
or its citizens are opposed to another State or its citizens. To
secure the full effect of so fundamental a provision against all
evasion and subterfuge, it is necessary that its construction should
be committed to that tribunal which, having no local attachments,
will be likely to be impartial between the different States and
their citizens, and which, owing its official existence to the
Union, will never be likely to feel any bias inauspicious to the
principles on which it is founded.
The fifth point will demand little animadversion. The most
bigoted idolizers of State authority have not thus far shown a
disposition to deny the national judiciary the cognizances of
maritime causes. These so generally depend on the laws of nations,
and so commonly affect the rights of foreigners, that they fall
within the considerations which are relative to the public peace.
The most important part of them are, by the present Confederation,
submitted to federal jurisdiction.
The reasonableness of the agency of the national courts in cases
in which the State tribunals cannot be supposed to be impartial,
speaks for itself. No man ought certainly to be a judge in his own
cause, or in any cause in respect to which he has the least interest
or bias. This principle has no inconsiderable weight in designating
the federal courts as the proper tribunals for the determination of
controversies between different States and their citizens. And it
ought to have the same operation in regard to some cases between
citizens of the same State. Claims to land under grants of
different States, founded upon adverse pretensions of boundary, are
of this description. The courts of neither of the granting States
could be expected to be unbiased. The laws may have even prejudged
the question, and tied the courts down to decisions in favor of the
grants of the State to which they belonged. And even where this had
not been done, it would be natural that the judges, as men, should
feel a strong predilection to the claims of their own government.
Having thus laid down and discussed the principles which ought
to regulate the constitution of the federal judiciary, we will
proceed to test, by these principles, the particular powers of
which, according to the plan of the convention, it is to be composed.
It is to comprehend ``all cases in law and equity arising under
the Constitution, the laws of the United States, and treaties made,
or which shall be made, under their authority; to all cases
affecting ambassadors, other public ministers, and consuls; to all
cases of admiralty and maritime jurisdiction; to controversies to
which the United States shall be a party; to controversies between
two or more States; between a State and citizens of another State;
between citizens of different States; between citizens of the same
State claiming lands and grants of different States; and between a
State or the citizens thereof and foreign states, citizens, and
subjects.'' This constitutes the entire mass of the judicial
authority of the Union. Let us now review it in detail. It is,
then, to extend:
First. To all cases in law and equity, ARISING UNDER THE
CONSTITUTION and THE LAWS OF THE UNITED STATES. This corresponds
with the two first classes of causes, which have been enumerated, as
proper for the jurisdiction of the United States. It has been
asked, what is meant by ``cases arising under the Constitution,'' in
contradiction from those ``arising under the laws of the United
States''? The difference has been already explained. All the
restrictions upon the authority of the State legislatures furnish
examples of it. They are not, for instance, to emit paper money;
but the interdiction results from the Constitution, and will have
no connection with any law of the United States. Should paper
money, notwithstanding, be emited, the controversies concerning it
would be cases arising under the Constitution and not the laws of
the United States, in the ordinary signification of the terms. This
may serve as a sample of the whole.
It has also been asked, what need of the word ``equity What
equitable causes can grow out of the Constitution and laws of the
United States? There is hardly a subject of litigation between
individuals, which may not involve those ingredients of FRAUD,
ACCIDENT, TRUST, or HARDSHIP, which would render the matter an
object of equitable rather than of legal jurisdiction, as the
distinction is known and established in several of the States. It
is the peculiar province, for instance, of a court of equity to
relieve against what are called hard bargains: these are contracts
in which, though there may have been no direct fraud or deceit,
sufficient to invalidate them in a court of law, yet there may have
been some undue and unconscionable advantage taken of the
necessities or misfortunes of one of the parties, which a court of
equity would not tolerate. In such cases, where foreigners were
concerned on either side, it would be impossible for the federal
judicatories to do justice without an equitable as well as a legal
jurisdiction. Agreements to convey lands claimed under the grants
of different States, may afford another example of the necessity of
an equitable jurisdiction in the federal courts. This reasoning may
not be so palpable in those States where the formal and technical
distinction between LAW and EQUITY is not maintained, as in this
State, where it is exemplified by every day's practice.
The judiciary authority of the Union is to extend:
Second. To treaties made, or which shall be made, under the
authority of the United States, and to all cases affecting
ambassadors, other public ministers, and consuls. These belong to
the fourth class of the enumerated cases, as they have an evident
connection with the preservation of the national peace.
Third. To cases of admiralty and maritime jurisdiction.
These form, altogether, the fifth of the enumerated classes of
causes proper for the cognizance of the national courts.
Fourth. To controversies to which the United States shall be
a party. These constitute the third of those classes.
Fifth. To controversies between two or more States; between
a State and citizens of another State; between citizens of
different States. These belong to the fourth of those classes, and
partake, in some measure, of the nature of the last.
Sixth. To cases between the citizens of the same State,
CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. These fall within
the last class, and ARE THE ONLY INSTANCES IN WHICH THE PROPOSED
CONSTITUTION DIRECTLY CONTEMPLATES THE COGNIZANCE OF DISPUTES
BETWEEN THE CITIZENS OF THE SAME STATE.
Seventh. To cases between a State and the citizens thereof,
and foreign States, citizens, or subjects. These have been already
explained to belong to the fourth of the enumerated classes, and
have been shown to be, in a peculiar manner, the proper subjects of
the national judicature.
From this review of the particular powers of the federal
judiciary, as marked out in the Constitution, it appears that they
are all conformable to the principles which ought to have governed
the structure of that department, and which were necessary to the
perfection of the system. If some partial inconviences should
appear to be connected with the incorporation of any of them into
the plan, it ought to be recollected that the national legislature
will have ample authority to make such EXCEPTIONS, and to prescribe
such regulations as will be calculated to obviate or remove these
inconveniences. The possibility of particular mischiefs can never
be viewed, by a wellinformed mind, as a solid objection to a general
principle, which is calculated to avoid general mischiefs and to
obtain general advantages.
PUBLIUS.
FEDERALIST. No. 81
The Judiciary Continued, and the Distribution of the Judicial
Authority
From McLEAN's Edition, New York.
HAMILTON
To the People of the State of New York:
LET US now return to the partition of the judiciary authority
between different courts, and their relations to each other,
``The judicial power of the United States is'' (by the plan of
the convention) ``to be vested in one Supreme Court, and in such
inferior courts as the Congress may, from time to time, ordain and
establish.''1
That there ought to be one court of supreme and final
jurisdiction, is a proposition which is not likely to be contested.
The reasons for it have been assigned in another place, and are too
obvious to need repetition. The only question that seems to have
been raised concerning it, is, whether it ought to be a distinct
body or a branch of the legislature. The same contradiction is
observable in regard to this matter which has been remarked in
several other cases. The very men who object to the Senate as a
court of impeachments, on the ground of an improper intermixture of
powers, advocate, by implication at least, the propriety of vesting
the ultimate decision of all causes, in the whole or in a part of
the legislative body.
The arguments, or rather suggestions, upon which this charge is
founded, are to this effect: ``The authority of the proposed
Supreme Court of the United States, which is to be a separate and
independent body, will be superior to that of the legislature. The
power of construing the laws according to the SPIRIT of the
Constitution, will enable that court to mould them into whatever
shape it may think proper; especially as its decisions will not be
in any manner subject to the revision or correction of the
legislative body. This is as unprecedented as it is dangerous. In
Britain, the judical power, in the last resort, resides in the House
of Lords, which is a branch of the legislature; and this part of
the British government has been imitated in the State constitutions
in general. The Parliament of Great Britain, and the legislatures
of the several States, can at any time rectify, by law, the
exceptionable decisions of their respective courts. But the errors
and usurpations of the Supreme Court of the United States will be
uncontrollable and remediless.'' This, upon examination, will be
found to be made up altogether of false reasoning upon misconceived
fact.
In the first place, there is not a syllable in the plan under
consideration which DIRECTLY empowers the national courts to
construe the laws according to the spirit of the Constitution, or
which gives them any greater latitude in this respect than may be
claimed by the courts of every State. I admit, however, that the
Constitution ought to be the standard of construction for the laws,
and that wherever there is an evident opposition, the laws ought to
give place to the Constitution. But this doctrine is not deducible
from any circumstance peculiar to the plan of the convention, but
from the general theory of a limited Constitution; and as far as it
is true, is equally applicable to most, if not to all the State
governments. There can be no objection, therefore, on this account,
to the federal judicature which will not lie against the local
judicatures in general, and which will not serve to condemn every
constitution that attempts to set bounds to legislative discretion.
But perhaps the force of the objection may be thought to consist
in the particular organization of the Supreme Court; in its being
composed of a distinct body of magistrates, instead of being one of
the branches of the legislature, as in the government of Great
Britain and that of the State. To insist upon this point, the
authors of the objection must renounce the meaning they have labored
to annex to the celebrated maxim, requiring a separation of the
departments of power. It shall, nevertheless, be conceded to them,
agreeably to the interpretation given to that maxim in the course of
these papers, that it is not violated by vesting the ultimate power
of judging in a PART of the legislative body. But though this be
not an absolute violation of that excellent rule, yet it verges so
nearly upon it, as on this account alone to be less eligible than
the mode preferred by the convention. From a body which had even a
partial agency in passing bad laws, we could rarely expect a
disposition to temper and moderate them in the application. The
same spirit which had operated in making them, would be too apt in
interpreting them; still less could it be expected that men who had
infringed the Constitution in the character of legislators, would be
disposed to repair the breach in the character of judges. Nor is
this all. Every reason which recommends the tenure of good behavior
for judicial offices, militates against placing the judiciary power,
in the last resort, in a body composed of men chosen for a limited
period. There is an absurdity in referring the determination of
causes, in the first instance, to judges of permanent standing; in
the last, to those of a temporary and mutable constitution. And
there is a still greater absurdity in subjecting the decisions of
men, selected for their knowledge of the laws, acquired by long and
laborious study, to the revision and control of men who, for want of
the same advantage, cannot but be deficient in that knowledge. The
members of the legislature will rarely be chosen with a view to
those qualifications which fit men for the stations of judges; and
as, on this account, there will be great reason to apprehend all the
ill consequences of defective information, so, on account of the
natural propensity of such bodies to party divisions, there will be
no less reason to fear that the pestilential breath of faction may
poison the fountains of justice. The habit of being continually
marshalled on opposite sides will be too apt to stifle the voice
both of law and of equity.
These considerations teach us to applaud the wisdom of those
States who have committed the judicial power, in the last resort,
not to a part of the legislature, but to distinct and independent
bodies of men. Contrary to the supposition of those who have
represented the plan of the convention, in this respect, as novel
and unprecedented, it is but a copy of the constitutions of New
Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland,
Virginia, North Carolina, South Carolina, and Georgia; and the
preference which has been given to those models is highly to be
commended.
It is not true, in the second place, that the Parliament of
Great Britain, or the legislatures of the particular States, can
rectify the exceptionable decisions of their respective courts, in
any other sense than might be done by a future legislature of the
United States. The theory, neither of the British, nor the State
constitutions, authorizes the revisal of a judicial sentence by a
legislative act. Nor is there any thing in the proposed
Constitution, more than in either of them, by which it is forbidden.
In the former, as well as in the latter, the impropriety of the
thing, on the general principles of law and reason, is the sole
obstacle. A legislature, without exceeding its province, cannot
reverse a determination once made in a particular case; though it
may prescribe a new rule for future cases. This is the principle,
and it applies in all its consequences, exactly in the same manner
and extent, to the State governments, as to the national government
now under consideration. Not the least difference can be pointed
out in any view of the subject.
It may in the last place be observed that the supposed danger of
judiciary encroachments on the legislative authority, which has been
upon many occasions reiterated, is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature
may now and then happen; but they can never be so extensive as to
amount to an inconvenience, or in any sensible degree to affect the
order of the political system. This may be inferred with certainty,
from the general nature of the judicial power, from the objects to
which it relates, from the manner in which it is exercised, from its
comparative weakness, and from its total incapacity to support its
usurpations by force. And the inference is greatly fortified by the
consideration of the important constitutional check which the power
of instituting impeachments in one part of the legislative body, and
of determining upon them in the other, would give to that body upon
the members of the judicial department. This is alone a complete
security. There never can be danger that the judges, by a series of
deliberate usurpations on the authority of the legislature, would
hazard the united resentment of the body intrusted with it, while
this body was possessed of the means of punishing their presumption,
by degrading them from their stations. While this ought to remove
all apprehensions on the subject, it affords, at the same time, a
cogent argument for constituting the Senate a court for the trial of
impeachments.
Having now examined, and, I trust, removed the objections to the
distinct and independent organization of the Supreme Court, I
proceed to consider the propriety of the power of constituting
inferior courts,2 and the relations which will subsist between
these and the former.
The power of constituting inferior courts is evidently
calculated to obviate the necessity of having recourse to the
Supreme Court in every case of federal cognizance. It is intended
to enable the national government to institute or AUTHORUZE, in each
State or district of the United States, a tribunal competent to the
determination of matters of national jurisdiction within its limits.
But why, it is asked, might not the same purpose have been
accomplished by the instrumentality of the State courts? This
admits of different answers. Though the fitness and competency of
those courts should be allowed in the utmost latitude, yet the
substance of the power in question may still be regarded as a
necessary part of the plan, if it were only to empower the national
legislature to commit to them the cognizance of causes arising out
of the national Constitution. To confer the power of determining
such causes upon the existing courts of the several States, would
perhaps be as much ``to constitute tribunals,'' as to create new
courts with the like power. But ought not a more direct and
explicit provision to have been made in favor of the State courts?
There are, in my opinion, substantial reasons against such a
provision: the most discerning cannot foresee how far the
prevalency of a local spirit may be found to disqualify the local
tribunals for the jurisdiction of national causes; whilst every man
may discover, that courts constituted like those of some of the
States would be improper channels of the judicial authority of the
Union. State judges, holding their offices during pleasure, or from
year to year, will be too little independent to be relied upon for
an inflexible execution of the national laws. And if there was a
necessity for confiding the original cognizance of causes arising
under those laws to them there would be a correspondent necessity
for leaving the door of appeal as wide as possible. In proportion
to the grounds of confidence in, or distrust of, the subordinate
tribunals, ought to be the facility or difficulty of appeals. And
well satisfied as I am of the propriety of the appellate
jurisdiction, in the several classes of causes to which it is
extended by the plan of the convention. I should consider every
thing calculated to give, in practice, an UNRESTRAINED COURSE to
appeals, as a source of public and private inconvenience.
I am not sure, but that it will be found highly expedient and
useful, to divide the United States into four or five or half a
dozen districts; and to institute a federal court in each district,
in lieu of one in every State. The judges of these courts, with the
aid of the State judges, may hold circuits for the trial of causes
in the several parts of the respective districts. Justice through
them may be administered with ease and despatch; and appeals may be
safely circumscribed within a narrow compass. This plan appears to
me at present the most eligible of any that could be adopted; and
in order to it, it is necessary that the power of constituting
inferior courts should exist in the full extent in which it is to be
found in the proposed Constitution.
These reasons seem sufficient to satisfy a candid mind, that the
want of such a power would have been a great defect in the plan.
Let us now examine in what manner the judicial authority is to be
distributed between the supreme and the inferior courts of the Union.
The Supreme Court is to be invested with original jurisdiction,
only ``in cases affecting ambassadors, other public ministers, and
consuls, and those in which A STATE shall be a party.'' Public
ministers of every class are the immediate representatives of their
sovereigns. All questions in which they are concerned are so
directly connected with the public peace, that, as well for the
preservation of this, as out of respect to the sovereignties they
represent, it is both expedient and proper that such questions
should be submitted in the first instance to the highest judicatory
of the nation. Though consuls have not in strictness a diplomatic
character, yet as they are the public agents of the nations to which
they belong, the same observation is in a great measure applicable
to them. In cases in which a State might happen to be a party, it
would ill suit its dignity to be turned over to an inferior tribunal.
Though it may rather be a digression from the immediate subject
of this paper, I shall take occasion to mention here a supposition
which has excited some alarm upon very mistaken grounds. It has
been suggested that an assignment of the public securities of one
State to the citizens of another, would enable them to prosecute
that State in the federal courts for the amount of those securities;
a suggestion which the following considerations prove to be without
foundation.
It is inherent in the nature of sovereignty not to be amenable
to the suit of an individual WITHOUT ITS CONSENT. This is the
general sense, and the general practice of mankind; and the
exemption, as one of the attributes of sovereignty, is now enjoyed
by the government of every State in the Union. Unless, therefore,
there is a surrender of this immunity in the plan of the convention,
it will remain with the States, and the danger intimated must be
merely ideal. The circumstances which are necessary to produce an
alienation of State sovereignty were discussed in considering the
article of taxation, and need not be repeated here. A recurrence to
the principles there established will satisfy us, that there is no
color to pretend that the State governments would, by the adoption
of that plan, be divested of the privilege of paying their own debts
in their own way, free from every constraint but that which flows
from the obligations of good faith. The contracts between a nation
and individuals are only binding on the conscience of the sovereign,
and have no pretensions to a compulsive force. They confer no right
of action, independent of the sovereign will. To what purpose would
it be to authorize suits against States for the debts they owe? How
could recoveries be enforced? It is evident, it could not be done
without waging war against the contracting State; and to ascribe to
the federal courts, by mere implication, and in destruction of a
pre-existing right of the State governments, a power which would
involve such a consequence, would be altogether forced and
unwarrantable.
Let us resume the train of our observations. We have seen that
the original jurisdiction of the Supreme Court would be confined to
two classes of causes, and those of a nature rarely to occur. In
all other cases of federal cognizance, the original jurisdiction
would appertain to the inferior tribunals; and the Supreme Court
would have nothing more than an appellate jurisdiction, ``with such
EXCEPTIONS and under such REGULATIONS as the Congress shall make.''
The propriety of this appellate jurisdiction has been scarcely
called in question in regard to matters of law; but the clamors
have been loud against it as applied to matters of fact. Some
well-intentioned men in this State, deriving their notions from the
language and forms which obtain in our courts, have been induced to
consider it as an implied supersedure of the trial by jury, in favor
of the civil-law mode of trial, which prevails in our courts of
admiralty, probate, and chancery. A technical sense has been
affixed to the term ``appellate,'' which, in our law parlance, is
commonly used in reference to appeals in the course of the civil law.
But if I am not misinformed, the same meaning would not be given
to it in any part of New England. There an appeal from one jury to
another, is familiar both in language and practice, and is even a
matter of course, until there have been two verdicts on one side.
The word ``appellate,'' therefore, will not be understood in the
same sense in New England as in New York, which shows the
impropriety of a technical interpretation derived from the
jurisprudence of any particular State. The expression, taken in the
abstract, denotes nothing more than the power of one tribunal to
review the proceedings of another, either as to the law or fact, or
both. The mode of doing it may depend on ancient custom or
legislative provision (in a new government it must depend on the
latter), and may be with or without the aid of a jury, as may be
judged advisable. If, therefore, the re-examination of a fact once
determined by a jury, should in any case be admitted under the
proposed Constitution, it may be so regulated as to be done by a
second jury, either by remanding the cause to the court below for a
second trial of the fact, or by directing an issue immediately out
of the Supreme Court.
But it does not follow that the re-examination of a fact once
ascertained by a jury, will be permitted in the Supreme Court. Why
may not it be said, with the strictest propriety, when a writ of
error is brought from an inferior to a superior court of law in this
State, that the latter has jurisdiction of the fact as well as the
law? It is true it cannot institute a new inquiry concerning the
fact, but it takes cognizance of it as it appears upon the record,
and pronounces the law arising upon it.3 This is jurisdiction
of both fact and law; nor is it even possible to separate them.
Though the common-law courts of this State ascertain disputed facts
by a jury, yet they unquestionably have jurisdiction of both fact
and law; and accordingly when the former is agreed in the
pleadings, they have no recourse to a jury, but proceed at once to
judgment. I contend, therefore, on this ground, that the
expressions, ``appellate jurisdiction, both as to law and fact,'' do
not necessarily imply a re-examination in the Supreme Court of facts
decided by juries in the inferior courts.
The following train of ideas may well be imagined to have
influenced the convention, in relation to this particular provision.
The appellate jurisdiction of the Supreme Court (it may have been
argued) will extend to causes determinable in different modes, some
in the course of the COMMON LAW, others in the course of the CIVIL
LAW. In the former, the revision of the law only will be, generally
speaking, the proper province of the Supreme Court; in the latter,
the re-examination of the fact is agreeable to usage, and in some
cases, of which prize causes are an example, might be essential to
the preservation of the public peace. It is therefore necessary
that the appellate jurisdiction should, in certain cases, extend in
the broadest sense to matters of fact. It will not answer to make
an express exception of cases which shall have been originally tried
by a jury, because in the courts of some of the States ALL CAUSES
are tried in this mode4; and such an exception would preclude
the revision of matters of fact, as well where it might be proper,
as where it might be improper. To avoid all inconveniencies, it
will be safest to declare generally, that the Supreme Court shall
possess appellate jurisdiction both as to law and FACT, and that
this jurisdiction shall be subject to such EXCEPTIONS and
regulations as the national legislature may prescribe. This will
enable the government to modify it in such a manner as will best
answer the ends of public justice and security.
This view of the matter, at any rate, puts it out of all doubt
that the supposed ABOLITION of the trial by jury, by the operation
of this provision, is fallacious and untrue. The legislature of the
United States would certainly have full power to provide, that in
appeals to the Supreme Court there should be no re-examination of
facts where they had been tried in the original causes by juries.
This would certainly be an authorized exception; but if, for the
reason already intimated, it should be thought too extensive, it
might be qualified with a limitation to such causes only as are
determinable at common law in that mode of trial.
The amount of the observations hitherto made on the authority of
the judicial department is this: that it has been carefully
restricted to those causes which are manifestly proper for the
cognizance of the national judicature; that in the partition of
this authority a very small portion of original jurisdiction has
been preserved to the Supreme Court, and the rest consigned to the
subordinate tribunals; that the Supreme Court will possess an
appellate jurisdiction, both as to law and fact, in all the cases
referred to them, both subject to any EXCEPTIONS and REGULATIONS
which may be thought advisable; that this appellate jurisdiction
does, in no case, ABOLISH the trial by jury; and that an ordinary
degree of prudence and integrity in the national councils will
insure us solid advantages from the establishment of the proposed
judiciary, without exposing us to any of the inconveniences which
have been predicted from that source.
PUBLIUS.
1 Article 3, sec. I.
2 This power has been absurdly represented as intended to
abolish all the county courts in the several States, which are
commonly called inferior courts. But the expressions of the
Constitution are, to constitute ``tribunals INFERIOR TO THE SUPREME
COURT''; and the evident design of the provision is to enable the
institution of local courts, subordinate to the Supreme, either in
States or larger districts. It is ridiculous to imagine that county
courts were in contemplation.
3 This word is composed of JUS and DICTIO, juris dictio or a
speaking and pronouncing of the law.
4 I hold that the States will have concurrent jurisdiction with
the subordinate federal judicatories, in many cases of federal
cognizance, as will be explained in my next paper.
FEDERALIST No. 82
The Judiciary Continued
From McLEAN's Edition, New York.
HAMILTON
To the People of the State of New York:
THE erection of a new government, whatever care or wisdom may
distinguish the work, cannot fail to originate questions of
intricacy and nicety; and these may, in a particular manner, be
expected to flow from the establishment of a constitution founded
upon the total or partial incorporation of a number of distinct
sovereignties. 'T is time only that can mature and perfect so
compound a system, can liquidate the meaning of all the parts, and
can adjust them to each other in a harmonious and consistent WHOLE.
Such questions, accordingly, have arisen upon the plan proposed
by the convention, and particularly concerning the judiciary
department. The principal of these respect the situation of the
State courts in regard to those causes which are to be submitted to
federal jurisdiction. Is this to be exclusive, or are those courts
to possess a concurrent jurisdiction? If the latter, in what
relation will they stand to the national tribunals? These are
inquiries which we meet with in the mouths of men of sense, and
which are certainly entitled to attention.
The principles established in a former paper1 teach us that
the States will retain all PRE-EXISTING authorities which may not be
exclusively delegated to the federal head; and that this exclusive
delegation can only exist in one of three cases: where an exclusive
authority is, in express terms, granted to the Union; or where a
particular authority is granted to the Union, and the exercise of a
like authority is prohibited to the States; or where an authority
is granted to the Union, with which a similar authority in the
States would be utterly incompatible. Though these principles may
not apply with the same force to the judiciary as to the legislative
power, yet I am inclined to think that they are, in the main, just
with respect to the former, as well as the latter. And under this
impression, I shall lay it down as a rule, that the State courts
will RETAIN the jurisdiction they now have, unless it appears to be
taken away in one of the enumerated modes.
The only thing in the proposed Constitution, which wears the
appearance of confining the causes of federal cognizance to the
federal courts, is contained in this passage: ``The JUDICIAL POWER
of the United States SHALL BE VESTED in one Supreme Court, and in
SUCH inferior courts as the Congress shall from time to time ordain
and establish.'' This might either be construed to signify, that
the supreme and subordinate courts of the Union should alone have
the power of deciding those causes to which their authority is to
extend; or simply to denote, that the organs of the national
judiciary should be one Supreme Court, and as many subordinate
courts as Congress should think proper to appoint; or in other
words, that the United States should exercise the judicial power
with which they are to be invested, through one supreme tribunal,
and a certain number of inferior ones, to be instituted by them.
The first excludes, the last admits, the concurrent jurisdiction of
the State tribunals; and as the first would amount to an alienation
of State power by implication, the last appears to me the most
natural and the most defensible construction.
But this doctrine of concurrent jurisdiction is only clearly
applicable to those descriptions of causes of which the State courts
have previous cognizance. It is not equally evident in relation to
cases which may grow out of, and be PECULIAR to, the Constitution to
be established; for not to allow the State courts a right of
jurisdiction in such cases, can hardly be considered as the
abridgment of a pre-existing authority. I mean not therefore to
contend that the United States, in the course of legislation upon
the objects intrusted to their direction, may not commit the
decision of causes arising upon a particular regulation to the
federal courts solely, if such a measure should be deemed expedient;
but I hold that the State courts will be divested of no part of
their primitive jurisdiction, further than may relate to an appeal;
and I am even of opinion that in every case in which they were not
expressly excluded by the future acts of the national legislature,
they will of course take cognizance of the causes to which those
acts may give birth. This I infer from the nature of judiciary
power, and from the general genius of the system. The judiciary
power of every government looks beyond its own local or municipal
laws, and in civil cases lays hold of all subjects of litigation
between parties within its jurisdiction, though the causes of
dispute are relative to the laws of the most distant part of the
globe. Those of Japan, not less than of New York, may furnish the
objects of legal discussion to our courts. When in addition to this
we consider the State governments and the national governments, as
they truly are, in the light of kindred systems, and as parts of ONE
WHOLE, the inference seems to be conclusive, that the State courts
would have a concurrent jurisdiction in all cases arising under the
laws of the Union, where it was not expressly prohibited.
Here another question occurs: What relation would subsist
between the national and State courts in these instances of
concurrent jurisdiction? I answer, that an appeal would certainly
lie from the latter, to the Supreme Court of the United States. The
Constitution in direct terms gives an appellate jurisdiction to the
Supreme Court in all the enumerated cases of federal cognizance in
which it is not to have an original one, without a single expression
to confine its operation to the inferior federal courts. The
objects of appeal, not the tribunals from which it is to be made,
are alone contemplated. From this circumstance, and from the reason
of the thing, it ought to be construed to extend to the State
tribunals. Either this must be the case, or the local courts must
be excluded from a concurrent jurisdiction in matters of national
concern, else the judiciary authority of the Union may be eluded at
the pleasure of every plaintiff or prosecutor. Neither of these
consequences ought, without evident necessity, to be involved; the
latter would be entirely inadmissible, as it would defeat some of
the most important and avowed purposes of the proposed government,
and would essentially embarrass its measures. Nor do I perceive any
foundation for such a supposition. Agreeably to the remark already
made, the national and State systems are to be regarded as ONE WHOLE.
The courts of the latter will of course be natural auxiliaries to
the execution of the laws of the Union, and an appeal from them will
as naturally lie to that tribunal which is destined to unite and
assimilate the principles of national justice and the rules of
national decisions. The evident aim of the plan of the convention
is, that all the causes of the specified classes shall, for weighty
public reasons, receive their original or final determination in the
courts of the Union. To confine, therefore, the general expressions
giving appellate jurisdiction to the Supreme Court, to appeals from
the subordinate federal courts, instead of allowing their extension
to the State courts, would be to abridge the latitude of the terms,
in subversion of the intent, contrary to every sound rule of
interpretation.
But could an appeal be made to lie from the State courts to the
subordinate federal judicatories? This is another of the questions
which have been raised, and of greater difficulty than the former.
The following considerations countenance the affirmative. The plan
of the convention, in the first place, authorizes the national
legislature ``to constitute tribunals inferior to the Supreme
Court.''2 It declares, in the next place, that ``the JUDICIAL
POWER of the United States SHALL BE VESTED in one Supreme Court, and
in such inferior courts as Congress shall ordain and establish'';
and it then proceeds to enumerate the cases to which this judicial
power shall extend. It afterwards divides the jurisdiction of the
Supreme Court into original and appellate, but gives no definition
of that of the subordinate courts. The only outlines described for
them, are that they shall be ``inferior to the Supreme Court,'' and
that they shall not exceed the specified limits of the federal
judiciary. Whether their authority shall be original or appellate,
or both, is not declared. All this seems to be left to the
discretion of the legislature. And this being the case, I perceive
at present no impediment to the establishment of an appeal from the
State courts to the subordinate national tribunals; and many
advantages attending the power of doing it may be imagined. It
would diminish the motives to the multiplication of federal courts,
and would admit of arrangements calculated to contract the appellate
jurisdiction of the Supreme Court. The State tribunals may then be
left with a more entire charge of federal causes; and appeals, in
most cases in which they may be deemed proper, instead of being
carried to the Supreme Court, may be made to lie from the State
courts to district courts of the Union.
PUBLIUS.
1 No. 31.
2 Sec. 8th art. 1st.
FEDERALIST No. 83
The Judiciary Continued in Relation to Trial by Jury
From MCLEAN's Edition, New York.
HAMILTON
To the People of the State of New York:
THE objection to the plan of the convention, which has met with
most success in this State, and perhaps in several of the other
States, is THAT RELATIVE TO THE WANT OF A CONSTITUTIONAL PROVISION
for the trial by jury in civil cases. The disingenuous form in
which this objection is usually stated has been repeatedly adverted
to and exposed, but continues to be pursued in all the conversations
and writings of the opponents of the plan. The mere silence of the
Constitution in regard to CIVIL CAUSES, is represented as an
abolition of the trial by jury, and the declamations to which it has
afforded a pretext are artfully calculated to induce a persuasion
that this pretended abolition is complete and universal, extending
not only to every species of civil, but even to CRIMINAL CAUSES. To
argue with respect to the latter would, however, be as vain and
fruitless as to attempt the serious proof of the EXISTENCE of
MATTER, or to demonstrate any of those propositions which, by their
own internal evidence, force conviction, when expressed in language
adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible
for refutation have been employed to countenance the surmise that a
thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every
man of discernment must at once perceive the wide difference between
SILENCE and ABOLITION. But as the inventors of this fallacy have
attempted to support it by certain LEGAL MAXIMS of interpretation,
which they have perverted from their true meaning, it may not be
wholly useless to explore the ground they have taken.
The maxims on which they rely are of this nature: ``A
specification of particulars is an exclusion of generals''; or,
``The expression of one thing is the exclusion of another.'' Hence,
say they, as the Constitution has established the trial by jury in
criminal cases, and is silent in respect to civil, this silence is
an implied prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of COMMONSENSE,
adopted by the courts in the construction of the laws. The true
test, therefore, of a just application of them is its conformity to
the source from which they are derived. This being the case, let me
ask if it is consistent with common-sense to suppose that a
provision obliging the legislative power to commit the trial of
criminal causes to juries, is a privation of its right to authorize
or permit that mode of trial in other cases? Is it natural to
suppose, that a command to do one thing is a prohibition to the
doing of another, which there was a previous power to do, and which
is not incompatible with the thing commanded to be done? If such a
supposition would be unnatural and unreasonable, it cannot be
rational to maintain that an injunction of the trial by jury in
certain cases is an interdiction of it in others.
A power to constitute courts is a power to prescribe the mode of
trial; and consequently, if nothing was said in the Constitution on
the subject of juries, the legislature would be at liberty either to
adopt that institution or to let it alone. This discretion, in
regard to criminal causes, is abridged by the express injunction of
trial by jury in all such cases; but it is, of course, left at
large in relation to civil causes, there being a total silence on
this head. The specification of an obligation to try all criminal
causes in a particular mode, excludes indeed the obligation or
necessity of employing the same mode in civil causes, but does not
abridge THE POWER of the legislature to exercise that mode if it
should be thought proper. The pretense, therefore, that the
national legislature would not be at full liberty to submit all the
civil causes of federal cognizance to the determination of juries,
is a pretense destitute of all just foundation.
From these observations this conclusion results: that the trial
by jury in civil cases would not be abolished; and that the use
attempted to be made of the maxims which have been quoted, is
contrary to reason and common-sense, and therefore not admissible.
Even if these maxims had a precise technical sense, corresponding
with the idea of those who employ them upon the present occasion,
which, however, is not the case, they would still be inapplicable to
a constitution of government. In relation to such a subject, the
natural and obvious sense of its provisions, apart from any
technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the
use made of them, let us endeavor to ascertain their proper use and
true meaning. This will be best done by examples. The plan of the
convention declares that the power of Congress, or, in other words,
of the NATIONAL LEGISLATURE, shall extend to certain enumerated
cases. This specification of particulars evidently excludes all
pretension to a general legislative authority, because an
affirmative grant of special powers would be absurd, as well as
useless, if a general authority was intended.
In like manner the judicial authority of the federal judicatures
is declared by the Constitution to comprehend certain cases
particularly specified. The expression of those cases marks the
precise limits, beyond which the federal courts cannot extend their
jurisdiction, because the objects of their cognizance being
enumerated, the specification would be nugatory if it did not
exclude all ideas of more extensive authority.
These examples are sufficient to elucidate the maxims which have
been mentioned, and to designate the manner in which they should be
used. But that there may be no misapprehensions upon this subject,
I shall add one case more, to demonstrate the proper use of these
maxims, and the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman
was incapable of conveying her estate, and that the legislature,
considering this as an evil, should enact that she might dispose of
her property by deed executed in the presence of a magistrate. In
such a case there can be no doubt but the specification would amount
to an exclusion of any other mode of conveyance, because the woman
having no previous power to alienate her property, the specification
determines the particular mode which she is, for that purpose, to
avail herself of. But let us further suppose that in a subsequent
part of the same act it should be declared that no woman should
dispose of any estate of a determinate value without the consent of
three of her nearest relations, signified by their signing the deed;
could it be inferred from this regulation that a married woman
might not procure the approbation of her relations to a deed for
conveying property of inferior value? The position is too absurd to
merit a refutation, and yet this is precisely the position which
those must establish who contend that the trial by juries in civil
cases is abolished, because it is expressly provided for in cases of
a criminal nature.
From these observations it must appear unquestionably true, that
trial by jury is in no case abolished by the proposed Constitution,
and it is equally true, that in those controversies between
individuals in which the great body of the people are likely to be
interested, that institution will remain precisely in the same
situation in which it is placed by the State constitutions, and will
be in no degree altered or influenced by the adoption of the plan
under consideration. The foundation of this assertion is, that the
national judiciary will have no cognizance of them, and of course
they will remain determinable as heretofore by the State courts
only, and in the manner which the State constitutions and laws
prescribe. All land causes, except where claims under the grants of
different States come into question, and all other controversies
between the citizens of the same State, unless where they depend
upon positive violations of the articles of union, by acts of the
State legislatures, will belong exclusively to the jurisdiction of
the State tribunals. Add to this, that admiralty causes, and almost
all those which are of equity jurisdiction, are determinable under
our own government without the intervention of a jury, and the
inference from the whole will be, that this institution, as it
exists with us at present, cannot possibly be affected to any great
extent by the proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if
they agree in nothing else, concur at least in the value they set
upon the trial by jury; or if there is any difference between them
it consists in this: the former regard it as a valuable safeguard
to liberty; the latter represent it as the very palladium of free
government. For my own part, the more the operation of the
institution has fallen under my observation, the more reason I have
discovered for holding it in high estimation; and it would be
altogether superfluous to examine to what extent it deserves to be
esteemed useful or essential in a representative republic, or how
much more merit it may be entitled to, as a defense against the
oppressions of an hereditary monarch, than as a barrier to the
tyranny of popular magistrates in a popular government. Discussions
of this kind would be more curious than beneficial, as all are
satisfied of the utility of the institution, and of its friendly
aspect to liberty. But I must acknowledge that I cannot readily
discern the inseparable connection between the existence of liberty,
and the trial by jury in civil cases. Arbitrary impeachments,
arbitrary methods of prosecuting pretended offenses, and arbitrary
punishments upon arbitrary convictions, have ever appeared to me to
be the great engines of judicial despotism; and these have all
relation to criminal proceedings. The trial by jury in criminal
cases, aided by the habeas-corpus act, seems therefore to be
alone concerned in the question. And both of these are provided
for, in the most ample manner, in the plan of the convention.
It has been observed, that trial by jury is a safeguard against
an oppressive exercise of the power of taxation. This observation
deserves to be canvassed.
It is evident that it can have no influence upon the
legislature, in regard to the AMOUNT of taxes to be laid, to the
OBJECTS upon which they are to be imposed, or to the RULE by which
they are to be apportioned. If it can have any influence,
therefore, it must be upon the mode of collection, and the conduct
of the officers intrusted with the execution of the revenue laws.
As to the mode of collection in this State, under our own
Constitution, the trial by jury is in most cases out of use. The
taxes are usually levied by the more summary proceeding of distress
and sale, as in cases of rent. And it is acknowledged on all hands,
that this is essential to the efficacy of the revenue laws. The
dilatory course of a trial at law to recover the taxes imposed on
individuals, would neither suit the exigencies of the public nor
promote the convenience of the citizens. It would often occasion an
accumulation of costs, more burdensome than the original sum of the
tax to be levied.
And as to the conduct of the officers of the revenue, the
provision in favor of trial by jury in criminal cases, will afford
the security aimed at. Wilful abuses of a public authority, to the
oppression of the subject, and every species of official extortion,
are offenses against the government, for which the persons who
commit them may be indicted and punished according to the
circumstances of the case.
The excellence of the trial by jury in civil cases appears to
depend on circumstances foreign to the preservation of liberty. The
strongest argument in its favor is, that it is a security against
corruption. As there is always more time and better opportunity to
tamper with a standing body of magistrates than with a jury summoned
for the occasion, there is room to suppose that a corrupt influence
would more easily find its way to the former than to the latter.
The force of this consideration is, however, diminished by others.
The sheriff, who is the summoner of ordinary juries, and the clerks
of courts, who have the nomination of special juries, are themselves
standing officers, and, acting individually, may be supposed more
accessible to the touch of corruption than the judges, who are a
collective body. It is not difficult to see, that it would be in
the power of those officers to select jurors who would serve the
purpose of the party as well as a corrupted bench. In the next
place, it may fairly be supposed, that there would be less
difficulty in gaining some of the jurors promiscuously taken from
the public mass, than in gaining men who had been chosen by the
government for their probity and good character. But making every
deduction for these considerations, the trial by jury must still be
a valuable check upon corruption. It greatly multiplies the
impediments to its success. As matters now stand, it would be
necessary to corrupt both court and jury; for where the jury have
gone evidently wrong, the court will generally grant a new trial,
and it would be in most cases of little use to practice upon the
jury, unless the court could be likewise gained. Here then is a
double security; and it will readily be perceived that this
complicated agency tends to preserve the purity of both institutions.
By increasing the obstacles to success, it discourages attempts to
seduce the integrity of either. The temptations to prostitution
which the judges might have to surmount, must certainly be much
fewer, while the co-operation of a jury is necessary, than they
might be, if they had themselves the exclusive determination of all
causes.
Notwithstanding, therefore, the doubts I have expressed, as to
the essentiality of trial by jury in civil cases to liberty, I admit
that it is in most cases, under proper regulations, an excellent
method of determining questions of property; and that on this
account alone it would be entitled to a constitutional provision in
its favor if it were possible to fix the limits within which it
ought to be comprehended. There is, however, in all cases, great
difficulty in this; and men not blinded by enthusiasm must be
sensible that in a federal government, which is a composition of
societies whose ideas and institutions in relation to the matter
materially vary from each other, that difficulty must be not a
little augmented. For my own part, at every new view I take of the
subject, I become more convinced of the reality of the obstacles
which, we are authoritatively informed, prevented the insertion of a
provision on this head in the plan of the convention.
The great difference between the limits of the jury trial in
different States is not generally understood; and as it must have
considerable influence on the sentence we ought to pass upon the
omission complained of in regard to this point, an explanation of it
is necessary. In this State, our judicial establishments resemble,
more nearly than in any other, those of Great Britain. We have
courts of common law, courts of probates (analogous in certain
matters to the spiritual courts in England), a court of admiralty
and a court of chancery. In the courts of common law only, the
trial by jury prevails, and this with some exceptions. In all the
others a single judge presides, and proceeds in general either
according to the course of the canon or civil law, without the aid
of a jury.1 In New Jersey, there is a court of chancery which
proceeds like ours, but neither courts of admiralty nor of probates,
in the sense in which these last are established with us. In that
State the courts of common law have the cognizance of those causes
which with us are determinable in the courts of admiralty and of
probates, and of course the jury trial is more extensive in New
Jersey than in New York. In Pennsylvania, this is perhaps still
more the case, for there is no court of chancery in that State, and
its common-law courts have equity jurisdiction. It has a court of
admiralty, but none of probates, at least on the plan of ours.
Delaware has in these respects imitated Pennsylvania. Maryland
approaches more nearly to New York, as does also Virginia, except
that the latter has a plurality of chancellors. North Carolina
bears most affinity to Pennsylvania; South Carolina to Virginia. I
believe, however, that in some of those States which have distinct
courts of admiralty, the causes depending in them are triable by
juries. In Georgia there are none but common-law courts, and an
appeal of course lies from the verdict of one jury to another, which
is called a special jury, and for which a particular mode of
appointment is marked out. In Connecticut, they have no distinct
courts either of chancery or of admiralty, and their courts of
probates have no jurisdiction of causes. Their common-law courts
have admiralty and, to a certain extent, equity jurisdiction. In
cases of importance, their General Assembly is the only court of
chancery. In Connecticut, therefore, the trial by jury extends in
PRACTICE further than in any other State yet mentioned. Rhode
Island is, I believe, in this particular, pretty much in the
situation of Connecticut. Massachusetts and New Hampshire, in
regard to the blending of law, equity, and admiralty jurisdictions,
are in a similar predicament. In the four Eastern States, the trial
by jury not only stands upon a broader foundation than in the other
States, but it is attended with a peculiarity unknown, in its full
extent, to any of them. There is an appeal OF COURSE from one jury
to another, till there have been two verdicts out of three on one
side.
From this sketch it appears that there is a material diversity,
as well in the modification as in the extent of the institution of
trial by jury in civil cases, in the several States; and from this
fact these obvious reflections flow: first, that no general rule
could have been fixed upon by the convention which would have
corresponded with the circumstances of all the States; and
secondly, that more or at least as much might have been hazarded by
taking the system of any one State for a standard, as by omitting a
provision altogether and leaving the matter, as has been done, to
legislative regulation.
The propositions which have been made for supplying the omission
have rather served to illustrate than to obviate the difficulty of
the thing. The minority of Pennsylvania have proposed this mode of
expression for the purpose ``Trial by jury shall be as
heretofore'' and this I maintain would be senseless and nugatory.
The United States, in their united or collective capacity, are the
OBJECT to which all general provisions in the Constitution must
necessarily be construed to refer. Now it is evident that though
trial by jury, with various limitations, is known in each State
individually, yet in the United States, AS SUCH, it is at this time
altogether unknown, because the present federal government has no
judiciary power whatever; and consequently there is no proper
antecedent or previous establishment to which the term HERETOFORE
could relate. It would therefore be destitute of a precise meaning,
and inoperative from its uncertainty.
As, on the one hand, the form of the provision would not fulfil
the intent of its proposers, so, on the other, if I apprehend that
intent rightly, it would be in itself inexpedient. I presume it to
be, that causes in the federal courts should be tried by jury, if,
in the State where the courts sat, that mode of trial would obtain
in a similar case in the State courts; that is to say, admiralty
causes should be tried in Connecticut by a jury, in New York without
one. The capricious operation of so dissimilar a method of trial in
the same cases, under the same government, is of itself sufficient
to indispose every wellregulated judgment towards it. Whether the
cause should be tried with or without a jury, would depend, in a
great number of cases, on the accidental situation of the court and
parties.
But this is not, in my estimation, the greatest objection. I
feel a deep and deliberate conviction that there are many cases in
which the trial by jury is an ineligible one. I think it so
particularly in cases which concern the public peace with foreign
nations that is, in most cases where the question turns wholly on
the laws of nations. Of this nature, among others, are all prize
causes. Juries cannot be supposed competent to investigations that
require a thorough knowledge of the laws and usages of nations; and
they will sometimes be under the influence of impressions which will
not suffer them to pay sufficient regard to those considerations of
public policy which ought to guide their inquiries. There would of
course be always danger that the rights of other nations might be
infringed by their decisions, so as to afford occasions of reprisal
and war. Though the proper province of juries be to determine
matters of fact, yet in most cases legal consequences are
complicated with fact in such a manner as to render a separation
impracticable.
It will add great weight to this remark, in relation to prize
causes, to mention that the method of determining them has been
thought worthy of particular regulation in various treaties between
different powers of Europe, and that, pursuant to such treaties,
they are determinable in Great Britain, in the last resort, before
the king himself, in his privy council, where the fact, as well as
the law, undergoes a re-examination. This alone demonstrates the
impolicy of inserting a fundamental provision in the Constitution
which would make the State systems a standard for the national
government in the article under consideration, and the danger of
encumbering the government with any constitutional provisions the
propriety of which is not indisputable.
My convictions are equally strong that great advantages result
from the separation of the equity from the law jurisdiction, and
that the causes which belong to the former would be improperly
committed to juries. The great and primary use of a court of equity
is to give relief IN EXTRAORDINARY CASES, which are EXCEPTIONS2
to general rules. To unite the jurisdiction of such cases with the
ordinary jurisdiction, must have a tendency to unsettle the general
rules, and to subject every case that arises to a SPECIAL
determination; while a separation of the one from the other has the
contrary effect of rendering one a sentinel over the other, and of
keeping each within the expedient limits. Besides this, the
circumstances that constitute cases proper for courts of equity are
in many instances so nice and intricate, that they are incompatible
with the genius of trials by jury. They require often such long,
deliberate, and critical investigation as would be impracticable to
men called from their occupations, and obliged to decide before they
were permitted to return to them. The simplicity and expedition
which form the distinguishing characters of this mode of trial
require that the matter to be decided should be reduced to some
single and obvious point; while the litigations usual in chancery
frequently comprehend a long train of minute and independent
particulars.
It is true that the separation of the equity from the legal
jurisdiction is peculiar to the English system of jurisprudence:
which is the model that has been followed in several of the States.
But it is equally true that the trial by jury has been unknown in
every case in which they have been united. And the separation is
essential to the preservation of that institution in its pristine
purity. The nature of a court of equity will readily permit the
extension of its jurisdiction to matters of law; but it is not a
little to be suspected, that the attempt to extend the jurisdiction
of the courts of law to matters of equity will not only be
unproductive of the advantages which may be derived from courts of
chancery, on the plan upon which they are established in this State,
but will tend gradually to change the nature of the courts of law,
and to undermine the trial by jury, by introducing questions too
complicated for a decision in that mode.
These appeared to be conclusive reasons against incorporating
the systems of all the States, in the formation of the national
judiciary, according to what may be conjectured to have been the
attempt of the Pennsylvania minority. Let us now examine how far
the proposition of Massachusetts is calculated to remedy the
supposed defect.
It is in this form: ``In civil actions between citizens of
different States, every issue of fact, arising in ACTIONS AT COMMON
LAW, may be tried by a jury if the parties, or either of them
request it.''
This, at best, is a proposition confined to one description of
causes; and the inference is fair, either that the Massachusetts
convention considered that as the only class of federal causes, in
which the trial by jury would be proper; or that if desirous of a
more extensive provision, they found it impracticable to devise one
which would properly answer the end. If the first, the omission of
a regulation respecting so partial an object can never be considered
as a material imperfection in the system. If the last, it affords a
strong corroboration of the extreme difficulty of the thing.
But this is not all: if we advert to the observations already
made respecting the courts that subsist in the several States of the
Union, and the different powers exercised by them, it will appear
that there are no expressions more vague and indeterminate than
those which have been employed to characterize THAT species of
causes which it is intended shall be entitled to a trial by jury.
In this State, the boundaries between actions at common law and
actions of equitable jurisdiction, are ascertained in conformity to
the rules which prevail in England upon that subject. In many of
the other States the boundaries are less precise. In some of them
every cause is to be tried in a court of common law, and upon that
foundation every action may be considered as an action at common
law, to be determined by a jury, if the parties, or either of them,
choose it. Hence the same irregularity and confusion would be
introduced by a compliance with this proposition, that I have
already noticed as resulting from the regulation proposed by the
Pennsylvania minority. In one State a cause would receive its
determination from a jury, if the parties, or either of them,
requested it; but in another State, a cause exactly similar to the
other, must be decided without the intervention of a jury, because
the State judicatories varied as to common-law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition,
upon this subject cannot operate as a general regulation, until some
uniform plan, with respect to the limits of common-law and equitable
jurisdictions, shall be adopted by the different States. To devise
a plan of that kind is a task arduous in itself, and which it would
require much time and reflection to mature. It would be extremely
difficult, if not impossible, to suggest any general regulation that
would be acceptable to all the States in the Union, or that would
perfectly quadrate with the several State institutions.
It may be asked, Why could not a reference have been made to the
constitution of this State, taking that, which is allowed by me to
be a good one, as a standard for the United States? I answer that
it is not very probable the other States would entertain the same
opinion of our institutions as we do ourselves. It is natural to
suppose that they are hitherto more attached to their own, and that
each would struggle for the preference. If the plan of taking one
State as a model for the whole had been thought of in the
convention, it is to be presumed that the adoption of it in that
body would have been rendered difficult by the predilection of each
representation in favor of its own government; and it must be
uncertain which of the States would have been taken as the model.
It has been shown that many of them would be improper ones. And I
leave it to conjecture, whether, under all circumstances, it is most
likely that New York, or some other State, would have been preferred.
But admit that a judicious selection could have been effected in
the convention, still there would have been great danger of jealousy
and disgust in the other States, at the partiality which had been
shown to the institutions of one. The enemies of the plan would
have been furnished with a fine pretext for raising a host of local
prejudices against it, which perhaps might have hazarded, in no
inconsiderable degree, its final establishment.
To avoid the embarrassments of a definition of the cases which
the trial by jury ought to embrace, it is sometimes suggested by men
of enthusiastic tempers, that a provision might have been inserted
for establishing it in all cases whatsoever. For this I believe, no
precedent is to be found in any member of the Union; and the
considerations which have been stated in discussing the proposition
of the minority of Pennsylvania, must satisfy every sober mind that
the establishment of the trial by jury in ALL cases would have been
an unpardonable error in the plan.
In short, the more it is considered the more arduous will appear
the task of fashioning a provision in such a form as not to express
too little to answer the purpose, or too much to be advisable; or
which might not have opened other sources of opposition to the great
and essential object of introducing a firm national government.
I cannot but persuade myself, on the other hand, that the
different lights in which the subject has been placed in the course
of these observations, will go far towards removing in candid minds
the apprehensions they may have entertained on the point. They have
tended to show that the security of liberty is materially concerned
only in the trial by jury in criminal cases, which is provided for
in the most ample manner in the plan of the convention; that even
in far the greatest proportion of civil cases, and those in which
the great body of the community is interested, that mode of trial
will remain in its full force, as established in the State
constitutions, untouched and unaffected by the plan of the
convention; that it is in no case abolished3 by that plan; and
that there are great if not insurmountable difficulties in the way
of making any precise and proper provision for it in a Constitution
for the United States.
The best judges of the matter will be the least anxious for a
constitutional establishment of the trial by jury in civil cases,
and will be the most ready to admit that the changes which are
continually happening in the affairs of society may render a
different mode of determining questions of property preferable in
many cases in which that mode of trial now prevails. For my part, I
acknowledge myself to be convinced that even in this State it might
be advantageously extended to some cases to which it does not at
present apply, and might as advantageously be abridged in others.
It is conceded by all reasonable men that it ought not to obtain in
all cases. The examples of innovations which contract its ancient
limits, as well in these States as in Great Britain, afford a strong
presumption that its former extent has been found inconvenient, and
give room to suppose that future experience may discover the
propriety and utility of other exceptions. I suspect it to be
impossible in the nature of the thing to fix the salutary point at
which the operation of the institution ought to stop, and this is
with me a strong argument for leaving the matter to the discretion
of the legislature.
This is now clearly understood to be the case in Great Britain,
and it is equally so in the State of Connecticut; and yet it may be
safely affirmed that more numerous encroachments have been made upon
the trial by jury in this State since the Revolution, though
provided for by a positive article of our constitution, than has
happened in the same time either in Connecticut or Great Britain.
It may be added that these encroachments have generally originated
with the men who endeavor to persuade the people they are the
warmest defenders of popular liberty, but who have rarely suffered
constitutional obstacles to arrest them in a favorite career. The
truth is that the general GENIUS of a government is all that can be
substantially relied upon for permanent effects. Particular
provisions, though not altogether useless, have far less virtue and
efficacy than are commonly ascribed to them; and the want of them
will never be, with men of sound discernment, a decisive objection
to any plan which exhibits the leading characters of a good
government.
It certainly sounds not a little harsh and extraordinary to
affirm that there is no security for liberty in a Constitution which
expressly establishes the trial by jury in criminal cases, because
it does not do it in civil also; while it is a notorious fact that
Connecticut, which has been always regarded as the most popular
State in the Union, can boast of no constitutional provision for
either.
PUBLIUS.
1 It has been erroneously insinuated. with regard to the court
of chancery, that this court generally tries disputed facts by a
jury. The truth is, that references to a jury in that court rarely
happen, and are in no case necessary but where the validity of a
devise of land comes into question.
2 It is true that the principles by which that relief is
governed are now reduced to a regular system; but it is not the
less true that they are in the main applicable to SPECIAL
circumstances, which form exceptions to general rules.
3 Vide No. 81, in which the supposition of its being
abolished by the appellate jurisdiction in matters of fact being
vested in the Supreme Court, is examined and refuted.
FEDERALIST No. 84
Certain General and Miscellaneous Objections to the Constitution
Considered and Answered
From McLEAN's Edition, New York.
HAMILTON
To the People of the State of New York:
IN THE course of the foregoing review of the Constitution, I
have taken notice of, and endeavored to answer most of the
objections which have appeared against it. There, however, remain a
few which either did not fall naturally under any particular head or
were forgotten in their proper places. These shall now be
discussed; but as the subject has been drawn into great length, I
shall so far consult brevity as to comprise all my observations on
these miscellaneous points in a single paper.
The most considerable of the remaining objections is that the
plan of the convention contains no bill of rights. Among other
answers given to this, it has been upon different occasions remarked
that the constitutions of several of the States are in a similar
predicament. I add that New York is of the number. And yet the
opposers of the new system, in this State, who profess an unlimited
admiration for its constitution, are among the most intemperate
partisans of a bill of rights. To justify their zeal in this
matter, they allege two things: one is that, though the
constitution of New York has no bill of rights prefixed to it, yet
it contains, in the body of it, various provisions in favor of
particular privileges and rights, which, in substance amount to the
same thing; the other is, that the Constitution adopts, in their
full extent, the common and statute law of Great Britain, by which
many other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the
convention contains, as well as the constitution of this State, a
number of such provisions.
Independent of those which relate to the structure of the
government, we find the following: Article 1, section 3, clause 7
``Judgment in cases of impeachment shall not extend further than to
removal from office, and disqualification to hold and enjoy any
office of honor, trust, or profit under the United States; but the
party convicted shall, nevertheless, be liable and subject to
indictment, trial, judgment, and punishment according to law.''
Section 9, of the same article, clause 2 ``The privilege of the
writ of habeas corpus shall not be suspended, unless when in
cases of rebellion or invasion the public safety may require it.''
Clause 3 ``No bill of attainder or ex-post-facto law shall be
passed.'' Clause 7 ``No title of nobility shall be granted by the
United States; and no person holding any office of profit or trust
under them, shall, without the consent of the Congress, accept of
any present, emolument, office, or title of any kind whatever, from
any king, prince, or foreign state.'' Article 3, section 2, clause
3 ``The trial of all crimes, except in cases of impeachment, shall
be by jury; and such trial shall be held in the State where the
said crimes shall have been committed; but when not committed
within any State, the trial shall be at such place or places as the
Congress may by law have directed.'' Section 3, of the same
article ``Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies, giving
them aid and comfort. No person shall be convicted of treason,
unless on the testimony of two witnesses to the same overt act, or
on confession in open court.'' And clause 3, of the same
section ``The Congress shall have power to declare the punishment of
treason; but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person attainted.''
It may well be a question, whether these are not, upon the
whole, of equal importance with any which are to be found in the
constitution of this State. The establishment of the writ of
habeas corpus, the prohibition of ex-post-facto laws, and of
TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN
OUR CONSTITUTION, are perhaps greater securities to liberty and
republicanism than any it contains. The creation of crimes after
the commission of the fact, or, in other words, the subjecting of
men to punishment for things which, when they were done, were
breaches of no law, and the practice of arbitrary imprisonments,
have been, in all ages, the favorite and most formidable instruments
of tyranny. The observations of the judicious Blackstone,1 in
reference to the latter, are well worthy of recital: ``To bereave a
man of life, Usays he,e or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act
of despotism, as must at once convey the alarm of tyranny throughout
the whole nation; but confinement of the person, by secretly
hurrying him to jail, where his sufferings are unknown or forgotten,
is a less public, a less striking, and therefore A MORE DANGEROUS
ENGINE of arbitrary government.'' And as a remedy for this fatal
evil he is everywhere peculiarly emphatical in his encomiums on the
habeas-corpus act, which in one place he calls ``the BULWARK of
the British Constitution.''2
Nothing need be said to illustrate the importance of the
prohibition of titles of nobility. This may truly be denominated
the corner-stone of republican government; for so long as they are
excluded, there can never be serious danger that the government will
be any other than that of the people.
To the second that is, to the pretended establishment of the
common and state law by the Constitution, I answer, that they are
expressly made subject ``to such alterations and provisions as the
legislature shall from time to time make concerning the same.''
They are therefore at any moment liable to repeal by the ordinary
legislative power, and of course have no constitutional sanction.
The only use of the declaration was to recognize the ancient law
and to remove doubts which might have been occasioned by the
Revolution. This consequently can be considered as no part of a
declaration of rights, which under our constitutions must be
intended as limitations of the power of the government itself.
It has been several times truly remarked that bills of rights
are, in their origin, stipulations between kings and their subjects,
abridgements of prerogative in favor of privilege, reservations of
rights not surrendered to the prince. Such was MAGNA CHARTA,
obtained by the barons, sword in hand, from King John. Such were
the subsequent confirmations of that charter by succeeding princes.
Such was the PETITION OF RIGHT assented to by Charles I., in the
beginning of his reign. Such, also, was the Declaration of Right
presented by the Lords and Commons to the Prince of Orange in 1688,
and afterwards thrown into the form of an act of parliament called
the Bill of Rights. It is evident, therefore, that, according to
their primitive signification, they have no application to
constitutions professedly founded upon the power of the people, and
executed by their immediate representatives and servants. Here, in
strictness, the people surrender nothing; and as they retain every
thing they have no need of particular reservations. ``WE, THE
PEOPLE of the United States, to secure the blessings of liberty to
ourselves and our posterity, do ORDAIN and ESTABLISH this
Constitution for the United States of America.'' Here is a better
recognition of popular rights, than volumes of those aphorisms which
make the principal figure in several of our State bills of rights,
and which would sound much better in a treatise of ethics than in a
constitution of government.
But a minute detail of particular rights is certainly far less
applicable to a Constitution like that under consideration, which is
merely intended to regulate the general political interests of the
nation, than to a constitution which has the regulation of every
species of personal and private concerns. If, therefore, the loud
clamors against the plan of the convention, on this score, are well
founded, no epithets of reprobation will be too strong for the
constitution of this State. But the truth is, that both of them
contain all which, in relation to their objects, is reasonably to be
desired.
I go further, and affirm that bills of rights, in the sense and
to the extent in which they are contended for, are not only
unnecessary in the proposed Constitution, but would even be
dangerous. They would contain various exceptions to powers not
granted; and, on this very account, would afford a colorable
pretext to claim more than were granted. For why declare that
things shall not be done which there is no power to do? Why, for
instance, should it be said that the liberty of the press shall not
be restrained, when no power is given by which restrictions may be
imposed? I will not contend that such a provision would confer a
regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power.
They might urge with a semblance of reason, that the Constitution
ought not to be charged with the absurdity of providing against the
abuse of an authority which was not given, and that the provision
against restraining the liberty of the press afforded a clear
implication, that a power to prescribe proper regulations concerning
it was intended to be vested in the national government. This may
serve as a specimen of the numerous handles which would be given to
the doctrine of constructive powers, by the indulgence of an
injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been
said, I cannot forbear adding a remark or two: in the first place,
I observe, that there is not a syllable concerning it in the
constitution of this State; in the next, I contend, that whatever
has been said about it in that of any other State, amounts to
nothing. What signifies a declaration, that ``the liberty of the
press shall be inviolably preserved''? What is the liberty of the
press? Who can give it any definition which would not leave the
utmost latitude for evasion? I hold it to be impracticable; and
from this I infer, that its security, whatever fine declarations may
be inserted in any constitution respecting it, must altogether
depend on public opinion, and on the general spirit of the people
and of the government.3 And here, after all, as is intimated
upon another occasion, must we seek for the only solid basis of all
our rights.
There remains but one other view of this matter to conclude the
point. The truth is, after all the declamations we have heard, that
the Constitution is itself, in every rational sense, and to every
useful purpose, A BILL OF RIGHTS. The several bills of rights in
Great Britain form its Constitution, and conversely the constitution
of each State is its bill of rights. And the proposed Constitution,
if adopted, will be the bill of rights of the Union. Is it one
object of a bill of rights to declare and specify the political
privileges of the citizens in the structure and administration of
the government? This is done in the most ample and precise manner
in the plan of the convention; comprehending various precautions
for the public security, which are not to be found in any of the
State constitutions. Is another object of a bill of rights to
define certain immunities and modes of proceeding, which are
relative to personal and private concerns? This we have seen has
also been attended to, in a variety of cases, in the same plan.
Adverting therefore to the substantial meaning of a bill of rights,
it is absurd to allege that it is not to be found in the work of the
convention. It may be said that it does not go far enough, though
it will not be easy to make this appear; but it can with no
propriety be contended that there is no such thing. It certainly
must be immaterial what mode is observed as to the order of
declaring the rights of the citizens, if they are to be found in any
part of the instrument which establishes the government. And hence
it must be apparent, that much of what has been said on this subject
rests merely on verbal and nominal distinctions, entirely foreign
from the substance of the thing.
Another objection which has been made, and which, from the
frequency of its repetition, it is to be presumed is relied on, is
of this nature: ``It is improper Usay the objectorse to confer such
large powers, as are proposed, upon the national government, because
the seat of that government must of necessity be too remote from
many of the States to admit of a proper knowledge on the part of the
constituent, of the conduct of the representative body.'' This
argument, if it proves any thing, proves that there ought to be no
general government whatever. For the powers which, it seems to be
agreed on all hands, ought to be vested in the Union, cannot be
safely intrusted to a body which is not under every requisite
control. But there are satisfactory reasons to show that the
objection is in reality not well founded. There is in most of the
arguments which relate to distance a palpable illusion of the
imagination. What are the sources of information by which the
people in Montgomery County must regulate their judgment of the
conduct of their representatives in the State legislature? Of
personal observation they can have no benefit. This is confined to
the citizens on the spot. They must therefore depend on the
information of intelligent men, in whom they confide; and how must
these men obtain their information? Evidently from the complexion
of public measures, from the public prints, from correspondences
with theirrepresentatives, and with other persons who reside at the
place of their deliberations. This does not apply to Montgomery
County only, but to all the counties at any considerable distance
from the seat of government.
It is equally evident that the same sources of information would
be open to the people in relation to the conduct of their
representatives in the general government, and the impediments to a
prompt communication which distance may be supposed to create, will
be overbalanced by the effects of the vigilance of the State
governments. The executive and legislative bodies of each State
will be so many sentinels over the persons employed in every
department of the national administration; and as it will be in
their power to adopt and pursue a regular and effectual system of
intelligence, they can never be at a loss to know the behavior of
those who represent their constituents in the national councils, and
can readily communicate the same knowledge to the people. Their
disposition to apprise the community of whatever may prejudice its
interests from another quarter, may be relied upon, if it were only
from the rivalship of power. And we may conclude with the fullest
assurance that the people, through that channel, will be better
informed of the conduct of their national representatives, than they
can be by any means they now possess of that of their State
representatives.
It ought also to be remembered that the citizens who inhabit the
country at and near the seat of government will, in all questions
that affect the general liberty and prosperity, have the same
interest with those who are at a distance, and that they will stand
ready to sound the alarm when necessary, and to point out the actors
in any pernicious project. The public papers will be expeditious
messengers of intelligence to the most remote inhabitants of the
Union.
Among the many curious objections which have appeared against
the proposed Constitution, the most extraordinary and the least
colorable is derived from the want of some provision respecting the
debts due TO the United States. This has been represented as a
tacit relinquishment of those debts, and as a wicked contrivance to
screen public defaulters. The newspapers have teemed with the most
inflammatory railings on this head; yet there is nothing clearer
than that the suggestion is entirely void of foundation, the
offspring of extreme ignorance or extreme dishonesty. In addition
to the remarks I have made upon the subject in another place, I
shall only observe that as it is a plain dictate of common-sense, so
it is also an established doctrine of political law, that ``STATES
NEITHER LOSE ANY OF THEIR RIGHTS, NOR ARE DISCHARGED FROM ANY OF
THEIR OBLIGATIONS, BY A CHANGE IN THE FORM OF THEIR CIVIL GOVERNMENT.''4
The last objection of any consequence, which I at present
recollect, turns upon the article of expense. If it were even true,
that the adoption of the proposed government would occasion a
considerable increase of expense, it would be an objection that
ought to have no weight against the plan.
The great bulk of the citizens of America are with reason
convinced, that Union is the basis of their political happiness.
Men of sense of all parties now, with few exceptions, agree that it
cannot be preserved under the present system, nor without radical
alterations; that new and extensive powers ought to be granted to
the national head, and that these require a different organization
of the federal government a single body being an unsafe depositary
of such ample authorities. In conceding all this, the question of
expense must be given up; for it is impossible, with any degree of
safety, to narrow the foundation upon which the system is to stand.
The two branches of the legislature are, in the first instance, to
consist of only sixty-five persons, which is the same number of
which Congress, under the existing Confederation, may be composed.
It is true that this number is intended to be increased; but this
is to keep pace with the progress of the population and resources of
the country. It is evident that a less number would, even in the
first instance, have been unsafe, and that a continuance of the
present number would, in a more advanced stage of population, be a
very inadequate representation of the people.
Whence is the dreaded augmentation of expense to spring? One
source indicated, is the multiplication of offices under the new
government. Let us examine this a little.
It is evident that the principal departments of the
administration under the present government, are the same which will
be required under the new. There are now a Secretary of War, a
Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a
Board of Treasury, consisting of three persons, a Treasurer,
assistants, clerks, etc. These officers are indispensable under any
system, and will suffice under the new as well as the old. As to
ambassadors and other ministers and agents in foreign countries, the
proposed Constitution can make no other difference than to render
their characters, where they reside, more respectable, and their
services more useful. As to persons to be employed in the
collection of the revenues, it is unquestionably true that these
will form a very considerable addition to the number of federal
officers; but it will not follow that this will occasion an
increase of public expense. It will be in most cases nothing more
than an exchange of State for national officers. In the collection
of all duties, for instance, the persons employed will be wholly of
the latter description. The States individually will stand in no
need of any for this purpose. What difference can it make in point
of expense to pay officers of the customs appointed by the State or
by the United States? There is no good reason to suppose that
either the number or the salaries of the latter will be greater than
those of the former.
Where then are we to seek for those additional articles of
expense which are to swell the account to the enormous size that has
been represented to us? The chief item which occurs to me respects
the support of the judges of the United States. I do not add the
President, because there is now a president of Congress, whose
expenses may not be far, if any thing, short of those which will be
incurred on account of the President of the United States. The
support of the judges will clearly be an extra expense, but to what
extent will depend on the particular plan which may be adopted in
regard to this matter. But upon no reasonable plan can it amount to
a sum which will be an object of material consequence.
Let us now see what there is to counterbalance any extra expense
that may attend the establishment of the proposed government. The
first thing which presents itself is that a great part of the
business which now keeps Congress sitting through the year will be
transacted by the President. Even the management of foreign
negotiations will naturally devolve upon him, according to general
principles concerted with the Senate, and subject to their final
concurrence. Hence it is evident that a portion of the year will
suffice for the session of both the Senate and the House of
Representatives; we may suppose about a fourth for the latter and a
third, or perhaps half, for the former. The extra business of
treaties and appointments may give this extra occupation to the
Senate. From this circumstance we may infer that, until the House
of Representatives shall be increased greatly beyond its present
number, there will be a considerable saving of expense from the
difference between the constant session of the present and the
temporary session of the future Congress.
But there is another circumstance of great importance in the
view of economy. The business of the United States has hitherto
occupied the State legislatures, as well as Congress. The latter
has made requisitions which the former have had to provide for.
Hence it has happened that the sessions of the State legislatures
have been protracted greatly beyond what was necessary for the
execution of the mere local business of the States. More than half
their time has been frequently employed in matters which related to
the United States. Now the members who compose the legislatures of
the several States amount to two thousand and upwards, which number
has hitherto performed what under the new system will be done in the
first instance by sixty-five persons, and probably at no future
period by above a fourth or fifth of that number. The Congress
under the proposed government will do all the business of the United
States themselves, without the intervention of the State
legislatures, who thenceforth will have only to attend to the
affairs of their particular States, and will not have to sit in any
proportion as long as they have heretofore done. This difference in
the time of the sessions of the State legislatures will be clear
gain, and will alone form an article of saving, which may be
regarded as an equivalent for any additional objects of expense that
may be occasioned by the adoption of the new system.
The result from these observations is that the sources of
additional expense from the establishment of the proposed
Constitution are much fewer than may have been imagined; that they
are counterbalanced by considerable objects of saving; and that
while it is questionable on which side the scale will preponderate,
it is certain that a government less expensive would be incompetent
to the purposes of the Union.
PUBLIUS.
1. Vide Blackstone's ``Commentaries,'' vol. 1., p. 136.
2. Vide Blackstone's ``Commentaries,'' vol. iv., p. 438.
3. To show that there is a power in the Constitution by which
the liberty of the press may be affected, recourse has been had to
the power of taxation. It is said that duties may be laid upon the
publications so high as to amount to a prohibition. I know not by
what logic it could be maintained, that the declarations in the
State constitutions, in favor of the freedom of the press, would be
a constitutional impediment to the imposition of duties upon
publications by the State legislatures. It cannot certainly be
pretended that any degree of duties, however low, would be an
abridgment of the liberty of the press. We know that newspapers
are taxed in Great Britain, and yet it is notorious that the press
nowhere enjoys greater liberty than in that country. And if duties
of any kind may be laid without a violation of that liberty, it is
evident that the extent must depend on legislative discretion,
respecting the liberty of the press, will give it no greater
security than it will have without them. The same invasions of it
may be effected under the State constitutions which contain those
declarations through the means of taxation, as under the proposed
Constitution, which has nothing of the kind. It would be quite as
significant to declare that government ought to be free, that taxes
ought not to be excessive, etc., as that the liberty of the press
ought not to be restrained.
FEDERALIST No. 85
Concluding Remarks
From MCLEAN's Edition, New York.
HAMILTON
To the People of the State of New York:
ACCORDING to the formal division of the subject of these papers,
announced in my first number, there would appear still to remain for
discussion two points: ``the analogy of the proposed government to
your own State constitution,'' and ``the additional security which
its adoption will afford to republican government, to liberty, and
to property.'' But these heads have been so fully anticipated and
exhausted in the progress of the work, that it would now scarcely be
possible to do any thing more than repeat, in a more dilated form,
what has been heretofore said, which the advanced stage of the
question, and the time already spent upon it, conspire to forbid.
It is remarkable, that the resemblance of the plan of the
convention to the act which organizes the government of this State
holds, not less with regard to many of the supposed defects, than to
the real excellences of the former. Among the pretended defects are
the re-eligibility of the Executive, the want of a council, the
omission of a formal bill of rights, the omission of a provision
respecting the liberty of the press. These and several others which
have been noted in the course of our inquiries are as much
chargeable on the existing constitution of this State, as on the one
proposed for the Union; and a man must have slender pretensions to
consistency, who can rail at the latter for imperfections which he
finds no difficulty in excusing in the former. Nor indeed can there
be a better proof of the insincerity and affectation of some of the
zealous adversaries of the plan of the convention among us, who
profess to be the devoted admirers of the government under which
they live, than the fury with which they have attacked that plan,
for matters in regard to which our own constitution is equally or
perhaps more vulnerable.
The additional securities to republican government, to liberty
and to property, to be derived from the adoption of the plan under
consideration, consist chiefly in the restraints which the
preservation of the Union will impose on local factions and
insurrections, and on the ambition of powerful individuals in single
States, who may acquire credit and influence enough, from leaders
and favorites, to become the despots of the people; in the
diminution of the opportunities to foreign intrigue, which the
dissolution of the Confederacy would invite and facilitate; in the
prevention of extensive military establishments, which could not
fail to grow out of wars between the States in a disunited
situation; in the express guaranty of a republican form of
government to each; in the absolute and universal exclusion of
titles of nobility; and in the precautions against the repetition
of those practices on the part of the State governments which have
undermined the foundations of property and credit, have planted
mutual distrust in the breasts of all classes of citizens, and have
occasioned an almost universal prostration of morals.
Thus have I, fellow-citizens, executed the task I had assigned
to myself; with what success, your conduct must determine. I trust
at least you will admit that I have not failed in the assurance I
gave you respecting the spirit with which my endeavors should be
conducted. I have addressed myself purely to your judgments, and
have studiously avoided those asperities which are too apt to
disgrace political disputants of all parties, and which have been
not a little provoked by the language and conduct of the opponents
of the Constitution. The charge of a conspiracy against the
liberties of the people, which has been indiscriminately brought
against the advocates of the plan, has something in it too wanton
and too malignant, not to excite the indignation of every man who
feels in his own bosom a refutation of the calumny. The perpetual
changes which have been rung upon the wealthy, the well-born, and
the great, have been such as to inspire the disgust of all sensible
men. And the unwarrantable concealments and misrepresentations
which have been in various ways practiced to keep the truth from the
public eye, have been of a nature to demand the reprobation of all
honest men. It is not impossible that these circumstances may have
occasionally betrayed me into intemperances of expression which I
did not intend; it is certain that I have frequently felt a
struggle between sensibility and moderation; and if the former has
in some instances prevailed, it must be my excuse that it has been
neither often nor much.
Let us now pause and ask ourselves whether, in the course of
these papers, the proposed Constitution has not been satisfactorily
vindicated from the aspersions thrown upon it; and whether it has
not been shown to be worthy of the public approbation, and necessary
to the public safety and prosperity. Every man is bound to answer
these questions to himself, according to the best of his conscience
and understanding, and to act agreeably to the genuine and sober
dictates of his judgment. This is a duty from which nothing can
give him a dispensation. 'T is one that he is called upon, nay,
constrained by all the obligations that form the bands of society,
to discharge sincerely and honestly. No partial motive, no
particular interest, no pride of opinion, no temporary passion or
prejudice, will justify to himself, to his country, or to his
posterity, an improper election of the part he is to act. Let him
beware of an obstinate adherence to party; let him reflect that the
object upon which he is to decide is not a particular interest of
the community, but the very existence of the nation; and let him
remember that a majority of America has already given its sanction
to the plan which he is to approve or reject.
I shall not dissemble that I feel an entire confidence in the
arguments which recommend the proposed system to your adoption, and
that I am unable to discern any real force in those by which it has
been opposed. I am persuaded that it is the best which our
political situation, habits, and opinions will admit, and superior
to any the revolution has produced.
Concessions on the part of the friends of the plan, that it has
not a claim to absolute perfection, have afforded matter of no small
triumph to its enemies. ``Why,'' say they, ``should we adopt an
imperfect thing? Why not amend it and make it perfect before it is
irrevocably established?'' This may be plausible enough, but it is
only plausible. In the first place I remark, that the extent of
these concessions has been greatly exaggerated. They have been
stated as amounting to an admission that the plan is radically
defective, and that without material alterations the rights and the
interests of the community cannot be safely confided to it. This,
as far as I have understood the meaning of those who make the
concessions, is an entire perversion of their sense. No advocate of
the measure can be found, who will not declare as his sentiment,
that the system, though it may not be perfect in every part, is,
upon the whole, a good one; is the best that the present views and
circumstances of the country will permit; and is such an one as
promises every species of security which a reasonable people can
desire.
I answer in the next place, that I should esteem it the extreme
of imprudence to prolong the precarious state of our national
affairs, and to expose the Union to the jeopardy of successive
experiments, in the chimerical pursuit of a perfect plan. I never
expect to see a perfect work from imperfect man. The result of the
deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices, as of the good sense
and wisdom, of the individuals of whom they are composed. The
compacts which are to embrace thirteen distinct States in a common
bond of amity and union, must as necessarily be a compromise of as
many dissimilar interests and inclinations. How can perfection
spring from such materials?
The reasons assigned in an excellent little pamphlet lately
published in this city,1 are unanswerable to show the utter
improbability of assembling a new convention, under circumstances in
any degree so favorable to a happy issue, as those in which the late
convention met, deliberated, and concluded. I will not repeat the
arguments there used, as I presume the production itself has had an
extensive circulation. It is certainly well worthy the perusal of
every friend to his country. There is, however, one point of light
in which the subject of amendments still remains to be considered,
and in which it has not yet been exhibited to public view. I cannot
resolve to conclude without first taking a survey of it in this
aspect.
It appears to me susceptible of absolute demonstration, that it
will be far more easy to obtain subsequent than previous amendments
to the Constitution. The moment an alteration is made in the
present plan, it becomes, to the purpose of adoption, a new one, and
must undergo a new decision of each State. To its complete
establishment throughout the Union, it will therefore require the
concurrence of thirteen States. If, on the contrary, the
Constitution proposed should once be ratified by all the States as
it stands, alterations in it may at any time be effected by nine
States. Here, then, the chances are as thirteen to nine2 in
favor of subsequent amendment, rather than of the original adoption
of an entire system.
This is not all. Every Constitution for the United States must
inevitably consist of a great variety of particulars, in which
thirteen independent States are to be accommodated in their
interests or opinions of interest. We may of course expect to see,
in any body of men charged with its original formation, very
different combinations of the parts upon different points. Many of
those who form a majority on one question, may become the minority
on a second, and an association dissimilar to either may constitute
the majority on a third. Hence the necessity of moulding and
arranging all the particulars which are to compose the whole, in
such a manner as to satisfy all the parties to the compact; and
hence, also, an immense multiplication of difficulties and
casualties in obtaining the collective assent to a final act. The
degree of that multiplication must evidently be in a ratio to the
number of particulars and the number of parties.
But every amendment to the Constitution, if once established,
would be a single proposition, and might be brought forward singly.
There would then be no necessity for management or compromise, in
relation to any other point no giving nor taking. The will of the
requisite number would at once bring the matter to a decisive issue.
And consequently, whenever nine, or rather ten States, were united
in the desire of a particular amendment, that amendment must
infallibly take place. There can, therefore, be no comparison
between the facility of affecting an amendment, and that of
establishing in the first instance a complete Constitution.
In opposition to the probability of subsequent amendments, it
has been urged that the persons delegated to the administration of
the national government will always be disinclined to yield up any
portion of the authority of which they were once possessed. For my
own part I acknowledge a thorough conviction that any amendments
which may, upon mature consideration, be thought useful, will be
applicable to the organization of the government, not to the mass of
its powers; and on this account alone, I think there is no weight
in the observation just stated. I also think there is little weight
in it on another account. The intrinsic difficulty of governing
thirteen States at any rate, independent of calculations upon an
ordinary degree of public spirit and integrity, will, in my opinion
constantly impose on the national rulers the necessity of a spirit
of accommodation to the reasonable expectations of their
constituents. But there is yet a further consideration, which
proves beyond the possibility of a doubt, that the observation is
futile. It is this that the national rulers, whenever nine States
concur, will have no option upon the subject. By the fifth article
of the plan, the Congres will be obliged ``on the application of the
legislatures of two thirds of the States Uwhich at present amount to
ninee, to call a convention for proposing amendments, which shall be
valid, to all intents and purposes, as part of the Constitution,
when ratified by the legislatures of three fourths of the States, or
by conventions in three fourths thereof.'' The words of this
article are peremptory. The Congress ``shall call a convention.''
Nothing in this particular is left to the discretion of that body.
And of consequence, all the declamation about the disinclination to
a change vanishes in air. Nor however difficult it may be supposed
to unite two thirds or three fourths of the State legislatures, in
amendments which may affect local interests, can there be any room
to apprehend any such difficulty in a union on points which are
merely relative to the general liberty or security of the people.
We may safely rely on the disposition of the State legislatures to
erect barriers against the encroachments of the national authority.
If the foregoing argument is a fallacy, certain it is that I am
myself deceived by it, for it is, in my conception, one of those
rare instances in which a political truth can be brought to the test
of a mathematical demonstration. Those who see the matter in the
same light with me, however zealous they may be for amendments, must
agree in the propriety of a previous adoption, as the most direct
road to their own object.
The zeal for attempts to amend, prior to the establishment of
the Constitution, must abate in every man who is ready to accede to
the truth of the following observations of a writer equally solid
and ingenious: ``To balance a large state or society Usays hee,
whether monarchical or republican, on general laws, is a work of so
great difficulty, that no human genius, however comprehensive, is
able, by the mere dint of reason and reflection, to effect it. The
judgments of many must unite in the work; experience must guide
their labor; time must bring it to perfection, and the feeling of
inconveniences must correct the mistakes which they INEVITABLY fall
into in their first trials and experiments.''3 These judicious
reflections contain a lesson of moderation to all the sincere lovers
of the Union, and ought to put them upon their guard against
hazarding anarchy, civil war, a perpetual alienation of the States
from each other, and perhaps the military despotism of a victorious
demagogue, in the pursuit of what they are not likely to obtain, but
from time and experience. It may be in me a defect of political
fortitude, but I acknowledge that I cannot entertain an equal
tranquillity with those who affect to treat the dangers of a longer
continuance in our present situation as imaginary. A nation,
without a national government, is, in my view, an awful spectacle.
The establishment of a Constitution, in time of profound peace, by
the voluntary ocnsent of a whole people, is a prodigy, to the
completion of which I look forward with trembling anxiety. I can
reconcile it to no rules of prudence to let go the hold we now have,
in so arduous an enterprise, upon seven out of the thirteen States,
and after having passed over so considerable a part of the ground,
to recommence the course. I dread the more the consequences of new
attempts, because I know that powerful individuals, in this and in
other States, are enemies to a general national government in every
possible shape.
PUBLIUS.
1 Entitled ``An Address to the People of the State of New
York.''
2 It may rather be said TEN, for though two thirds may set on
foot the measure, three fourths must ratify.
3 Hume's ``Essays,'' vol. i., page 128: ``The Rise of Arts and
Sciences.''