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diff --git a/1404-0.txt b/1404-0.txt new file mode 100644 index 0000000..77ffb61 --- /dev/null +++ b/1404-0.txt @@ -0,0 +1,19363 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 1404 *** + +THE FEDERALIST PAPERS + +By Alexander Hamilton, John Jay, and James Madison + + + + +FEDERALIST No. 1 + +General Introduction + +For the Independent Journal. Saturday, October 27, 1787 + + +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. Wednesday, October 31, 1787 + +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, wide-spreading 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 +well-balanced 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 persuaded 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 persuade 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. Saturday, November 3, 1787 + +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. Wednesday, November 7, 1787 + +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 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. Saturday, November 10, 1787 + +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. Wednesday, November 14, 1787 + +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 SAMMIANS. 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, and sometimes even +the more culpable desire of sharing in the commerce of other nations +without their consent. + +The last war but between Britain and Spain sprang from the attempts of +the British merchants to prosecute an illicit trade with the Spanish +main. These unjustifiable practices on their part produced severity on +the part of the Spaniards toward the subjects of Great Britain which +were not more justifiable, because they exceeded the bounds of a just +retaliation and were chargeable with inhumanity and cruelty. Many of +the English who were taken on the Spanish coast were sent to dig in the +mines of Potosi; and by the usual progress of a spirit of resentment, +the innocent were, after a while, confounded with the guilty in +indiscriminate punishment. The complaints of the merchants kindled a +violent flame throughout the nation, which soon after broke out in the +House of Commons, and was communicated from that body to the ministry. +Letters of reprisal were granted, and a war ensued, which in its +consequences overthrew all the alliances that but twenty years before +had been formed with sanguine expectations of the most beneficial +fruits. + +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. 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 l'Abbé de Mably. + + + + +FEDERALIST No. 7 + +The Same Subject Continued (Concerning Dangers from Dissensions Between +the States) + +For the Independent Journal. Thursday, November 15, 1787 + +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 impera(1) 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 no 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 overmatch 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. It 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. Wednesday, November 21, 1787 + +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 he(1)) "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 Laws," 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 Daily Advertiser. Thursday, November 22, 1787. + +MADISON + +To the People of the State of New York: + +AMONG the numerous advantages promised by a well constructed 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. Saturday, November 24, 1787 + +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 +persecutors. 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 fluctuations 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 multiplying 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 imperceptible 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 their 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. Wednesday, November 28, 1787 + +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 fellow citizens 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. Saturday, December 1, 1787 + +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 plausibility 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. Wednesday, December 5, 1787 + +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 DEPOSITORIES, 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 New York Packet. Friday, +December 7, 1787 + +MADISON, with HAMILTON + +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 weakened 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 +liberty(1) 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. Saturday, December 8, 1787 + +MADISON, with HAMILTON + +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 imbecility, +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 Abbe 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 hereditary +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 accommodating 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 Abrég. 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 of the Present +Confederation to Preserve the Union) + +From the New York Packet. Tuesday, December 11, 1787. + +MADISON, with HAMILTON + +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 confederacy 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 destiny. 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. Wednesday, December 12, 1787 + +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 intercourse +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 regret 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 Delaware 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 + +1. This, as nearly as I can recollect, was the sense of his speech on +introducing the last bill. + +2. Encyclopedia, article "Empire." + +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. + +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 indispensable 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. Wednesday, December 19, 1787 + +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 proprietary 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 + +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 bills 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 authority. + +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 +perseverance, 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. Saturday, December 22, 1788 + +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 +calamities 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 +channels 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 + +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. Wednesday, December 26, 1787 + +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 + +1. Its full efficacy will be examined hereafter. + + + + +FEDERALIST No. 29 + +Concerning the Militia + +From the New York Packet. Wednesday, January 9, 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 conviction? + +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 +self-preservation 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 Independent Journal. Wednesday, January 2, 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 Independent Journal. Wednesday, January 2, 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 +proper means 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 calumniated 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 legitimate 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 government, +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 Independent Journal. Saturday, January 5, 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. Saturday, January 5, 1788 + +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 commonly 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.)(E1) + +(I have now gone through the examination of those powers proposed to be +conferred upon the federal government which relate more peculiarly to +its energy, and to its efficiency for answering the great and primary +objects of union. There are others which, though omitted here, will, in +order to render the view of the subject more complete, be taken notice +of under the next head of our inquiries. I flatter myself the progress +already made will have sufficed to satisfy the candid and judicious +part of the community that some of the objections which have been +most strenuously urged against the Constitution, and which were +most formidable in their first appearance, are not only destitute of +substance, but if they had operated in the formation of the plan, would +have rendered it incompetent to the great ends of public happiness and +national prosperity. I equally flatter myself that a further and more +critical investigation of the system will serve to recommend it still +more to every sincere and disinterested advocate for good government +and will leave no doubt with men of this character of the propriety +and expediency of adopting it. Happy will it be for ourselves, and more +honorable for human nature, if we have wisdom and virtue enough to set +so glorious an example to mankind!)(E1) + +PUBLIUS + +1. The New England States. + +E1. Two versions of this paragraph appear in different editions. + + + + +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 termination +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 Independent Journal. Saturday, January 12, 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 +self-preservation. 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. Wednesday, January 16, 1788 + +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 + +On the Powers of the Convention to Form a Mixed Government Examined and +Sustained For 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 States(1) 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 + +1. Connecticut and Rhode Island. + +2. Declaration of Independence. + + + + +FEDERALIST No. 41 + +General View of the Powers Conferred by The Constitution + +For the Independent Journal. Saturday, January 19, 1788 + +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 securities 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. Wednesday, January 23, 1788 + +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 less-informed 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 Journal. Saturday, January 26, 1788 + +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 governments 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 essential 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 prerogatives 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 uninterrupted 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. + +For the Independent Journal. Wednesday, January 30, 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, self-appointed, 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 council 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 inferior 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; SECOND, +in most of the other instances, they conformed either to the declared or +the known sentiments of the legislative department; THIRD, 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. + +For the Independent Journal. Saturday, February 2, 1788. + +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 numerous. 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. + +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. + +Second. 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. + +Third. 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. + +Fourth. 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. + +Fifth. 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. + +For the Independent Journal. Wednesday, February 6, 1788. + +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 +gradually 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. + +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 an 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) + +For the Independent Journal. Saturday, February 9, 1788. + +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 the 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 +regulations 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. + +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 observation. 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 + +For the Independent Journal. Wednesday, February 13, 1788. + +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 sixty-five. 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 all be 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) + +For the Independent Journal. Saturday, February 16, 1788. + +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.)(E1) + +(With regard to the regulation of the militia, there are scarcely any +circumstances in reference to which local knowledge can be said to +be necessary. The general face of the country, whether mountainous or +level, most fit for the operations of infantry or cavalry, is almost the +only consideration of this nature that can occur. The art of war teaches +general principles of organization, movement, and discipline, which +apply universally.)(E1) + +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 + +1. Burgh's "Political Disquisitions." + +E1. Two versions of this paragraph appear in different editions. + + + + +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. + +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 For the Independent Journal Wednesday, February 20, 1788. + +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 +multiply 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 + +1. 1st clause, 4th section, of the 1st article. + + + + +FEDERALIST No. 60 + +The Same Subject Continued (Concerning the Power of Congress to Regulate +the Election of Members) + +From The Independent Journal. Saturday, February 23, 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 still 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 primitive 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 overthrow 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. Wednesday, February 27, 1788 + +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 +stability 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. + +Second. 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. + +Third. 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. + +Fourth. 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 uninformed 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. Saturday, March 1, 1788 + +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 anything 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 Independent Journal. Wednesday, March 5, 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 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 perpetual 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 community, 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 Independent Journal. Saturday, March 8, 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 well-established 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 + +1. In that of New Jersey, also, the final judiciary authority is in +a branch of the legislature. In New Hampshire, Massachusetts, +Pennsylvania, 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 attended +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 party(1); 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 all 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 Constitution(2), 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." Second. 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. Third. 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 last, 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 1. + + + + +FEDERALIST No. 68 + +The Mode of Electing the President + +From The Independent Journal. Wednesday, March 12, 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.(E1) + +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 quarter, 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. + +E1. Some editions substitute "desired" for "wished for". + + + + +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. Second. +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. Third. 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. Fourth. 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 jurist(2) 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 utmost 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 owes his prerogative as +commander-in-chief to an annual mutiny bill. The truth is, on the +contrary, that his prerogative, in this respect, is immemorial, 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. + + + + +FEDERALIST No. 70 + +The Executive Department Further Considered + +From The Independent Journal. Saturday, March 15, 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 history, 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 republican 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 sense, 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 +any counterbalancing 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.)(E1) + +(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.)(E1) + +"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 scrutiny 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, +second, 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 public 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 unattainable. +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. + +E1. Two versions of these paragraphs appear in different editions. + + + + +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 innovation(1) 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 Independent Journal. Wednesday, March 19, 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 self-defense. + +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 well-timed 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. Wednesday, March 26, 1788 + +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 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 entire 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 Independent Journal. Wednesday, April 2, 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, +without the ill.)(E1) (good of that of appointment, and would in a great +measure avoid its evils.)(E1) + +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 + +E1. These two alternate endings of this sentence appear in different +editions. + + + + +FEDERALIST No. 78 + +The Judiciary Department + +From McLEAN'S Edition, New York. Wednesday, May 28, 1788 + +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 power(1); 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. Wednesday, May 28, 1788 + +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 +permanent(1) 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 1, Article 13. + + + + +FEDERALIST No. 80 + +The Powers of the Judiciary + +From McLEAN's Edition, New York. Wednesday, May 28, 1788. + +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 judiciary 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 inconveniences 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. Wednesday, May 28, 1788. + +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 judicial 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 authorize, 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 mode(4); 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. 1. + +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. Wednesday, May 28, 1788 + +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. 'Tis 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 paper(1) 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. 8, Art. 1. + + + + +FEDERALIST No. 83 + +The Judiciary Continued in Relation to Trial by Jury + +From MCLEAN's Edition, New York. Wednesday, May 28, 1788 + + +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 common sense, 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 exceptions(2) 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 abolished(3) 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. Wednesday, May 28, 1788 + +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, (says he) 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 (say the objectors) 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 their representatives, 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. Idem, Vol. 4, 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. + +4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections +XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and +IX. + + + + +FEDERALIST No. 85 + +Concluding Remarks + +From MCLEAN's Edition, New York. Wednesday, May 28, 1788 + +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 +nine(2) 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 Congress will be obliged "on the application of +the legislatures of two thirds of the States (which at present amount +to nine), 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 (says he), 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 consent 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, p. 128: "The Rise of Arts and Sciences." + +*** END OF THE PROJECT GUTENBERG EBOOK 1404 *** |