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diff --git a/1404-h/1404-h.htm b/1404-h/1404-h.htm new file mode 100644 index 0000000..2b083a5 --- /dev/null +++ b/1404-h/1404-h.htm @@ -0,0 +1,21059 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" +"http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> +<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> +<head> +<meta http-equiv="Content-Type" content="text/html;charset=UTF-8" /> +<meta http-equiv="Content-Style-Type" content="text/css" /> +<title>The Project Gutenberg eBook of The Federalist Papers, by Alexander Hamilton, John Jay, and James Madison</title> + +<style type="text/css" xml:space="preserve"> + + body { margin-left: 20%; margin-right: 20%; text-align: justify;} + p { text-indent: 1em; margin-top: .25em; margin-bottom: .25em; } + H1,H2,H3,H4,H5,H6 { text-align: center; margin-left: 15%; margin-right: 15%; } + hr { width: 50%; text-align: center;} + .toc { margin-left: 10%; margin-bottom: .75em;} + +p.poem {text-indent: 0%; + margin-left: 10%; + font-size: 90%; + margin-top: 1em; + margin-bottom: 1em; } + +p.noindent {text-indent: 0% } + +a:link {color:blue; text-decoration:none} +a:visited {color:blue; text-decoration:none} +a:hover {color:red} + +</style> + </head> + <body> +<div>*** START OF THE PROJECT GUTENBERG EBOOK 1404 ***</div> + + <h1> + THE FEDERALIST PAPERS + </h1> + <p> + <br /> + </p> + <h2> + By <br /><br />Alexander Hamilton,<br /><br /> John Jay,<br /><br />James + Madison + </h2> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + + <p class="toc"> + <big><b>CONTENTS</b></big> + </p> + <p> + <br /> + </p> + <p class="toc"> + <a href="#link2H_4_0001"> FEDERALIST No. 1. General Introduction </a> + </p> + <p class="toc"> + <a href="#link2H_4_0002"> FEDERALIST No. 2. Concerning Dangers from + Foreign Force and Influence </a> + </p> + <p class="toc"> + <a href="#link2H_4_0003"> FEDERALIST No. 3. The Same Subject Continued + (Concerning Dangers From Foreign Force and Influence) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0004"> FEDERALIST No. 4. The Same Subject Continued + (Concerning Dangers From Foreign Force and Influence) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0005"> FEDERALIST No. 5. The Same Subject Continued + (Concerning Dangers From Foreign Force and Influence) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0006"> FEDERALIST No. 6. Concerning Dangers from + Dissensions Between the States </a> + </p> + <p class="toc"> + <a href="#link2H_4_0007"> FEDERALIST No. 7. The Same Subject Continued + (Concerning Dangers from Dissensions Between the States) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0008"> FEDERALIST No. 8. The Consequences of + Hostilities Between the States </a> + </p> + <p class="toc"> + <a href="#link2H_4_0009"> FEDERALIST No. 9. The Union as a Safeguard + Against Domestic Faction and Insurrection </a> + </p> + <p class="toc"> + <a href="#link2H_4_0010"> FEDERALIST No. 10. The Same Subject Continued + (The Union as a Safeguard Against Domestic Faction and Insurrection) + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0011"> FEDERALIST No. 11. The Utility of the Union in + Respect to Commercial Relations and a Navy </a> + </p> + <p class="toc"> + <a href="#link2H_4_0012"> FEDERALIST No. 12. The Utility of the Union In + Respect to Revenue </a> + </p> + <p class="toc"> + <a href="#link2H_4_0013"> FEDERALIST No. 13. Advantage of the Union in + Respect to Economy in Government </a> + </p> + <p class="toc"> + <a href="#link2H_4_0014"> FEDERALIST No. 14. Objections to the Proposed + Constitution From Extent of Territory Answered </a> + </p> + <p class="toc"> + <a href="#link2H_4_0015"> FEDERALIST No. 15. The Insufficiency of the + Present Confederation to Preserve the Union </a> + </p> + <p class="toc"> + <a href="#link2H_4_0016"> FEDERALIST No. 16. The Same Subject Continued + (The Insufficiency of the Present Confederation to Preserve the Union) + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0017"> FEDERALIST No. 17. The Same Subject Continued + (The Insufficiency of the Present Confederation to Preserve the Union) + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0018"> FEDERALIST No. 18. The Same Subject Continued + (The Insufficiency of the Present Confederation to Preserve the Union) + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0019"> FEDERALIST No. 19. The Same Subject Continued + (The Insufficiency of the Present Confederation to Preserve the Union) + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0020"> FEDERALIST No. 20. The Same Subject Continued + (The Insufficiency of the Present Confederation to Preserve the Union) + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0021"> FEDERALIST No. 21. Other Defects of the + Present Confederation </a> + </p> + <p class="toc"> + <a href="#link2H_4_0022"> FEDERALIST No. 22. The Same Subject Continued + (Other Defects of the Present Confederation) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0023"> FEDERALIST No. 23. The Necessity of a + Government as Energetic as the One Proposed to the Preservation of the + Union </a> + </p> + <p class="toc"> + <a href="#link2H_4_0024"> FEDERALIST No. 24. The Powers Necessary to the + Common Defense Further Considered </a> + </p> + <p class="toc"> + <a href="#link2H_4_0025"> FEDERALIST No. 25. The Same Subject Continued + (The Powers Necessary to the Common Defense Further Considered) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0026"> FEDERALIST No. 26. The Idea of Restraining the + Legislative Authority in Regard to the Common Defense Considered. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0027"> FEDERALIST No. 27. The Same Subject Continued + (The Idea of Restraining the Legislative Authority in Regard to the + Common Defense Considered) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0028"> FEDERALIST No. 28. The Same Subject Continued + (The Idea of Restraining the Legislative Authority in Regard to the + Common Defense Considered) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0029"> FEDERALIST No. 29. Concerning the Militia </a> + </p> + <p class="toc"> + <a href="#link2H_4_0030"> FEDERALIST No. 30. Concerning the General + Power of Taxation </a> + </p> + <p class="toc"> + <a href="#link2H_4_0031"> FEDERALIST No. 31. The Same Subject Continued + (Concerning the General Power of Taxation) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0032"> FEDERALIST No. 32. The Same Subject Continued + (Concerning the General Power of Taxation) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0033"> FEDERALIST No. 33. The Same Subject Continued + (Concerning the General Power of Taxation) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0034"> FEDERALIST No. 34. The Same Subject Continued + (Concerning the General Power of Taxation) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0035"> FEDERALIST No. 35. The Same Subject Continued + (Concerning the General Power of Taxation) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0036"> FEDERALIST No. 36. The Same Subject Continued + (Concerning the General Power of Taxation) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0037"> FEDERALIST No. 37. Concerning the Difficulties + of the Convention in Devising a Proper Form of Government. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0038"> FEDERALIST No. 38. The Same Subject Continued, + and the Incoherence of the Objections to the New Plan Exposed. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0039"> FEDERALIST No. 39. The Conformity of the Plan + to Republican Principles </a> + </p> + <p class="toc"> + <a href="#link2H_4_0040"> FEDERALIST No. 40. On the Powers of the + Convention to Form a Mixed Government Examined and Sustained. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0041"> FEDERALIST No. 41. General View of the Powers + Conferred by The Constitution </a> + </p> + <p class="toc"> + <a href="#link2H_4_0042"> FEDERALIST No. 42. The Powers Conferred by the + Constitution Further Considered </a> + </p> + <p class="toc"> + <a href="#link2H_4_0043"> FEDERALIST No. 43. The Same Subject Continued + (The Powers Conferred by the Constitution Further Considered) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0044"> FEDERALIST No. 44. Restrictions on the + Authority of the Several States </a> + </p> + <p class="toc"> + <a href="#link2H_4_0045"> FEDERALIST No. 45. The Alleged Danger From the + Powers of the Union to the State Governments. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0046"> FEDERALIST No. 46. The Influence of the State + and Federal Governments Compared </a> + </p> + <p class="toc"> + <a href="#link2H_4_0047"> FEDERALIST No. 47. The Particular Structure of + the New Government and the Distribution of Power Among Its Different + Parts. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0048"> FEDERALIST No. 48. These Departments Should + Not Be So Far Separated as to Have No Constitutional Control Over Each + Other. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0049"> FEDERALIST No. 49. Method of Guarding Against + the Encroachments of Any One Department of Government by Appealing to + the People Through a Convention. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0050"> FEDERALIST No. 50. Periodical Appeals to the + People Considered </a> + </p> + <p class="toc"> + <a href="#link2H_4_0051"> FEDERALIST No. 51. The Structure of the + Government Must Furnish the Proper Checks and Balances Between the + Different Departments. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0052"> FEDERALIST No. 52. The House of + Representatives </a> + </p> + <p class="toc"> + <a href="#link2H_4_0053"> FEDERALIST No. 53. The Same Subject Continued + (The House of Representatives) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0054"> FEDERALIST No. 54. The Apportionment of + Members Among the States </a> + </p> + <p class="toc"> + <a href="#link2H_4_0055"> FEDERALIST No. 55. The Total Number of the + House of Representatives </a> + </p> + <p class="toc"> + <a href="#link2H_4_0056"> FEDERALIST No. 56. The Same Subject Continued + (The Total Number of the House of Representatives) </a> + </p> + <p class="toc"> + <a href="#link2H_4_0057"> 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. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0058"> FEDERALIST No. 58. Objection That The Number + of Members Will Not Be Augmented as the Progress of Population Demands. + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0059"> FEDERALIST No. 59. Concerning the Power of + Congress to Regulate the Election of Members </a> + </p> + <p class="toc"> + <a href="#link2H_4_0060"> FEDERALIST No. 60. The Same Subject Continued + (Concerning the Power of Congress to Regulate the Election of Members) + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0061"> FEDERALIST No. 61. The Same Subject Continued + (Concerning the Power of Congress to Regulate the Election of Members) + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0062"> FEDERALIST No. 62. The Senate </a> + </p> + <p class="toc"> + <a href="#link2H_4_0063"> FEDERALIST No. 63. The Senate Continued </a> + </p> + <p class="toc"> + <a href="#link2H_4_0064"> FEDERALIST No. 64. The Powers of the Senate + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0065"> FEDERALIST No. 65. The Powers of the Senate + Continued </a> + </p> + <p class="toc"> + <a href="#link2H_4_0066"> FEDERALIST No. 66. Objections to the Power of + the Senate To Set as a Court for Impeachments Further Considered. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0067"> FEDERALIST No. 67. The Executive Department + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0068"> FEDERALIST No. 68. The Mode of Electing the + President </a> + </p> + <p class="toc"> + <a href="#link2H_4_0069"> FEDERALIST No. 69. The Real Character of the + Executive </a> + </p> + <p class="toc"> + <a href="#link2H_4_0070"> FEDERALIST No. 70. The Executive Department + Further Considered </a> + </p> + <p class="toc"> + <a href="#link2H_4_0071"> FEDERALIST No. 71. The Duration in Office of + the Executive </a> + </p> + <p class="toc"> + <a href="#link2H_4_0072"> FEDERALIST No. 72. The Same Subject Continued, + and Re-Eligibility of the Executive Considered. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0073"> FEDERALIST No. 73. The Provision For The + Support of the Executive, and the Veto Power </a> + </p> + <p class="toc"> + <a href="#link2H_4_0074"> FEDERALIST No. 74. The Command of the Military + and Naval Forces, and the Pardoning Power of the Executive. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0075"> FEDERALIST No. 75. The Treaty-Making Power of + the Executive </a> + </p> + <p class="toc"> + <a href="#link2H_4_0076"> FEDERALIST No. 76. The Appointing Power of the + Executive </a> + </p> + <p class="toc"> + <a href="#link2H_4_0077"> FEDERALIST No. 77. The Appointing Power + Continued and Other Powers of the Executive Considered. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0078"> FEDERALIST No. 78. The Judiciary Department + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0079"> FEDERALIST No. 79. The Judiciary Continued + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0080"> FEDERALIST No. 80. The Powers of the Judiciary + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0081"> FEDERALIST No. 81. The Judiciary Continued, + and the Distribution of the Judicial Authority. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0082"> FEDERALIST No. 82. The Judiciary Continued. + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0083"> FEDERALIST No. 83. The Judiciary Continued in + Relation to Trial by Jury </a> + </p> + <p class="toc"> + <a href="#link2H_4_0084"> FEDERALIST No. 84. Certain General and + Miscellaneous Objections to the Constitution Considered and Answered. + </a> + </p> + <p class="toc"> + <a href="#link2H_4_0085"> FEDERALIST No. 85. Concluding Remarks </a> + </p> + + <hr /> + <p> + <br /> <br /> <a name="link2H_4_0001" id="link2H_4_0001"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 1. General Introduction + </h2> + <h3> + For the Independent Journal. Saturday, October 27, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + I propose, in a series of papers, to discuss the following interesting + particulars: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. The same idea, tracing the arguments to their consequences, is held out + in several of the late publications against the new Constitution. + </p> + <p> + <a name="link2H_4_0002" id="link2H_4_0002"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 2. Concerning Dangers from Foreign Force and Influence + </h2> + <h3> + For the Independent Journal. Wednesday, October 31, 1787 + </h3> + <p> + JAY + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + PUBLIUS <a name="link2H_4_0003" id="link2H_4_0003"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 3. The Same Subject Continued (Concerning Dangers From + Foreign Force and Influence) + </h2> + <h3> + For the Independent Journal. Saturday, November 3, 1787 + </h3> + <p> + JAY + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + PUBLIUS <a name="link2H_4_0004" id="link2H_4_0004"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 4. The Same Subject Continued (Concerning Dangers From + Foreign Force and Influence) + </h2> + <h3> + For the Independent Journal. Wednesday, November 7, 1787 + </h3> + <p> + JAY + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0005" id="link2H_4_0005"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 5. The Same Subject Continued (Concerning Dangers From + Foreign Force and Influence) + </h2> + <h3> + For the Independent Journal. Saturday, November 10, 1787 + </h3> + <p> + JAY + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0006" id="link2H_4_0006"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 6. Concerning Dangers from Dissensions Between the States + </h2> + <h3> + For the Independent Journal. Wednesday, November 14, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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—! + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Aspasia, vide "Plutarch's Life of Pericles." + </p> + <p> + 2. Ibid. + </p> + <p> + 3. Ibid. + </p> + <p> + 4. Ibid. Phidias was supposed to have stolen some public gold, with the + connivance of Pericles, for the embellishment of the statue of Minerva. + </p> + <p> + 5. Worn by the popes. + </p> + <p> + 6. Madame de Maintenon. + </p> + <p> + 7. Duchess of Marlborough. + </p> + <p> + 8. Madame de Pompadour. + </p> + <p> + 9. The League of Cambray, comprehending the Emperor, the King of France, + the King of Aragon, and most of the Italian princes and states. + </p> + <p> + 10. The Duke of Marlborough. + </p> + <p> + 11. Vide "Principes des Negociations" par l'Abbé de Mably. + </p> + <p> + <a name="link2H_4_0007" id="link2H_4_0007"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 7. The Same Subject Continued (Concerning Dangers from + Dissensions Between the States) + </h2> + <h3> + For the Independent Journal. Thursday, November 15, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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) + </p> + <p> + PUBLIUS + </p> + <p> + 1. Divide and command. + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0008" id="link2H_4_0008"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 8. The Consequences of Hostilities Between the States + </h2> + <h3> + From the New York Packet. Tuesday, November 20, 1787. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0009" id="link2H_4_0009"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 9. The Union as a Safeguard Against Domestic Faction and + Insurrection + </h2> + <h3> + For the Independent Journal. Wednesday, November 21, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + "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." + </p> + <p> + "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." + </p> + <p> + "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." + </p> + <p> + "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." + </p> + <p> + "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." + </p> + <p> + "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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. "Spirit of Laws," vol. i., book ix., chap. i. + </p> + <p> + <a name="link2H_4_0010" id="link2H_4_0010"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 10. The Same Subject Continued (The Union as a Safeguard + Against Domestic Faction and Insurrection) + </h2> + <h3> + From the Daily Advertiser. Thursday, November 22, 1787. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + There are two methods of curing the mischiefs of faction: the one, by + removing its causes; the other, by controlling its effects. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0011" id="link2H_4_0011"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 11. The Utility of the Union in Respect to Commercial + Relations and a Navy + </h2> + <h3> + For the Independent Journal. Saturday, November 24, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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! + </p> + <p> + PUBLIUS "Recherches philosophiques sur les Americains." + </p> + <p> + <a name="link2H_4_0012" id="link2H_4_0012"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 12. The Utility of the Union In Respect to Revenue + </h2> + <h3> + From the New York Packet. Tuesday, November 27, 1787. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. If my memory be right they amount to twenty per cent. + </p> + <p> + <a name="link2H_4_0013" id="link2H_4_0013"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 13. Advantage of the Union in Respect to Economy in + Government + </h2> + <h3> + For the Independent Journal. Wednesday, November 28, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0014" id="link2H_4_0014"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 14. Objections to the Proposed Constitution From Extent of + Territory Answered + </h2> + <h3> + From the New York Packet. Friday, November 30, 1787. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + Favorable as this view of the subject may be, some observations remain + which will place it in a light still more satisfactory. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0015" id="link2H_4_0015"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 15. The Insufficiency of the Present Confederation to + Preserve the Union + </h2> + <h3> + For the Independent Journal. Saturday, December 1, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. "I mean for the Union." + </p> + <p> + <a name="link2H_4_0016" id="link2H_4_0016"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 16. The Same Subject Continued (The Insufficiency of the + Present Confederation to Preserve the Union) + </h2> + <h3> + From the New York Packet. Tuesday, December 4, 1787. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0017" id="link2H_4_0017"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 17. The Same Subject Continued (The Insufficiency of the + Present Confederation to Preserve the Union) + </h2> + <h3> + For the Independent Journal. Wednesday, December 5, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + This strong propensity of the human heart would find powerful auxiliaries + in the objects of State regulation. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0018" id="link2H_4_0018"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 18. The Same Subject Continued (The Insufficiency of the + Present Confederation to Preserve the Union) + </h2> + <h3> + For the New York Packet. Friday, December 7, 1787 + </h3> + <p> + MADISON, with HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + The Achaean league, as it is called, was another society of Grecian + republics, which supplies us with valuable instruction. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. This was but another name more specious for the independence of the + members on the federal head. + </p> + <p> + <a name="link2H_4_0019" id="link2H_4_0019"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 19. The Same Subject Continued (The Insufficiency of the + Present Confederation to Preserve the Union) + </h2> + <h3> + For the Independent Journal. Saturday, December 8, 1787 + </h3> + <p> + MADISON, with HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + They have no common treasury; no common troops even in war; no common + coin; no common judicatory; nor any other common mark of sovereignty. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Pfeffel, "Nouvel Abrég. Chronol. de l'Hist., etc., d'Allemagne," says + the pretext was to indemnify himself for the expense of the expedition. + </p> + <p> + <a name="link2H_4_0020" id="link2H_4_0020"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 20. The Same Subject Continued (The Insufficiency of the + Present Confederation to Preserve the Union) + </h2> + <h3> + From the New York Packet. Tuesday, December 11, 1787. + </h3> + <p> + MADISON, with HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + As stadtholder of the union, he has, however, considerable prerogatives. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + A design was also conceived of establishing a general tax to be + administered by the federal authority. This also had its adversaries and + failed. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0021" id="link2H_4_0021"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 21. Other Defects of the Present Confederation + </h2> + <h3> + For the Independent Journal. Wednesday, December 12, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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! + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0022" id="link2H_4_0022"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 22. The Same Subject Continued (Other Defects of the + Present Confederation) + </h2> + <h3> + From the New York Packet. Friday, December 14, 1787. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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) + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. This, as nearly as I can recollect, was the sense of his speech on + introducing the last bill. + </p> + <p> + 2. Encyclopedia, article "Empire." + </p> + <p> + 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. + </p> + <p> + 4. Add New York and Connecticut to the foregoing seven, and they will be + less than a majority. + </p> + <p> + <a name="link2H_4_0023" id="link2H_4_0023"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 23. The Necessity of a Government as Energetic as the One + Proposed to the Preservation of the Union + </h2> + <h3> + From the New York Packet. Tuesday, December 18, 1787. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0024" id="link2H_4_0024"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 24. The Powers Necessary to the Common Defense Further + Considered + </h2> + <h3> + For the Independent Journal. Wednesday, December 19, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0025" id="link2H_4_0025"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 25. The Same Subject Continued (The Powers Necessary to the + Common Defense Further Considered) + </h2> + <h3> + From the New York Packet. Friday, December 21, 1787. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0026" id="link2H_4_0026"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 26. The Idea of Restraining the Legislative Authority in + Regard to the Common Defense Considered. + </h2> + <h3> + For the Independent Journal. Saturday, December 22, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0027" id="link2H_4_0027"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 27. The Same Subject Continued (The Idea of Restraining the + Legislative Authority in Regard to the Common Defense Considered) + </h2> + <h3> + From the New York Packet. Tuesday, December 25, 1787. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0028" id="link2H_4_0028"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 28. The Same Subject Continued (The Idea of Restraining the + Legislative Authority in Regard to the Common Defense Considered) + </h2> + <h3> + For the Independent Journal. Wednesday, December 26, 1787 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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) + </p> + <p> + 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. + </p> + <p> + 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! + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Its full efficacy will be examined hereafter. + </p> + <p> + <a name="link2H_4_0029" id="link2H_4_0029"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 29. Concerning the Militia + </h2> + <h3> + From the New York Packet. Wednesday, January 9, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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: + </p> + <p> + "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. + </p> + <p> + "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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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— + </p> + +<p class="poem"> +"Gorgons, hydras, and chimeras dire"; +</p> + +<p class="noindent"> +discoloring and disfiguring whatever it represents, and transforming +everything it touches into a monster. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0030" id="link2H_4_0030"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 30. Concerning the General Power of Taxation + </h2> + <h3> + From the New York Packet. Friday, December 28, 1787. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0031" id="link2H_4_0031"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 31. The Same Subject Continued (Concerning the General + Power of Taxation) + </h2> + <h3> + From the New York Packet. Tuesday, January 1, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0032" id="link2H_4_0032"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 32. The Same Subject Continued (Concerning the General + Power of Taxation) + </h2> + <h3> + From The Independent Journal. Wednesday, January 2, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0033" id="link2H_4_0033"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 33. The Same Subject Continued (Concerning the General + Power of Taxation) + </h2> + <h3> + From The Independent Journal. Wednesday, January 2, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0034" id="link2H_4_0034"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 34. The Same Subject Continued (Concerning the General + Power of Taxation) + </h2> + <h3> + From The Independent Journal. Saturday, January 5, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0035" id="link2H_4_0035"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 35. The Same Subject Continued (Concerning the General + Power of Taxation) + </h2> + <h3> + For the Independent Journal. Saturday, January 5, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0036" id="link2H_4_0036"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 36. The Same Subject Continued (Concerning the General + Power of Taxation) + </h2> + <h3> + From the New York Packet. Tuesday, January 8, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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! + </p> + <p> + 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. + </p> + <p> + (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) + </p> + <p> + (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) + </p> + <p> + PUBLIUS + </p> + <p> + 1. The New England States. + </p> + <p> + E1. Two versions of this paragraph appear in different editions. + </p> + <p> + <a name="link2H_4_0037" id="link2H_4_0037"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 37. Concerning the Difficulties of the Convention in + Devising a Proper Form of Government. + </h2> + <h3> + From the Daily Advertiser. Friday, January 11, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0038" id="link2H_4_0038"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 38. The Same Subject Continued, and the Incoherence of the + Objections to the New Plan Exposed. + </h2> + <h3> + From The Independent Journal. Saturday, January 12, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0039" id="link2H_4_0039"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 39. The Conformity of the Plan to Republican Principles + </h2> + <h3> + For the Independent Journal. Wednesday, January 16, 1788 + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + "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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0040" id="link2H_4_0040"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 40. On the Powers of the Convention to Form a Mixed + Government Examined and Sustained. + </h2> + <h3> + For the New York Packet. Friday, January 18, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + THE SECOND point to be examined is, whether the convention were authorized + to frame and propose this mixed Constitution. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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: + </p> + <p> + "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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Connecticut and Rhode Island. + </p> + <p> + 2. Declaration of Independence. + </p> + <p> + <a name="link2H_4_0041" id="link2H_4_0041"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 41. General View of the Powers Conferred by The + Constitution + </h2> + <h3> + For the Independent Journal. Saturday, January 19, 1788 + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + Is the aggregate power of the general government greater than ought to + have been vested in it? This is the FIRST question. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + The power of regulating and calling forth the militia has been already + sufficiently vindicated and explained. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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! + </p> + <p> + PUBLIUS <a name="link2H_4_0042" id="link2H_4_0042"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 42. The Powers Conferred by the Constitution Further + Considered + </h2> + <h3> + From the New York Packet. Tuesday, January 22, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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! + </p> + <p> + 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. + </p> + <p> + The powers included in the THIRD class are those which provide for the + harmony and proper intercourse among the States. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0043" id="link2H_4_0043"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 43. The Same Subject Continued (The Powers Conferred by the + Constitution Further Considered) + </h2> + <h3> + For the Independent Journal. Wednesday, January 23, 1788 + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + THE FOURTH class comprises the following miscellaneous powers: + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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! + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 8. "To provide for amendments to be ratified by three fourths of the + States under two exceptions only." + </p> + <p> + 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. + </p> + <p> + 9. "The ratification of the conventions of nine States shall be sufficient + for the establishment of this Constitution between the States, ratifying + the same." + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0044" id="link2H_4_0044"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 44. Restrictions on the Authority of the Several States + </h2> + <h3> + From the New York Packet. Friday, January 25, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + A FIFTH class of provisions in favor of the federal authority consists of + the following restrictions on the authority of the several States: + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + The SIXTH and last class consists of the several powers and provisions by + which efficacy is given to all the rest. + </p> + <p> + 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." + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0045" id="link2H_4_0045"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 45. The Alleged Danger From the Powers of the Union to the + State Governments. + </h2> + <h3> + Considered For the Independent Journal. Saturday, January 26, 1788 + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0046" id="link2H_4_0046"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 46. The Influence of the State and Federal Governments + Compared + </h2> + <h3> + From the New York Packet. Tuesday, January 29, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0047" id="link2H_4_0047"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 47. The Particular Structure of the New Government and the + Distribution of Power Among Its Different Parts. + </h2> + <h3> + For the Independent Journal. Wednesday, January 30, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0048" id="link2H_4_0048"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 48. These Departments Should Not Be So Far Separated as to + Have No Constitutional Control Over Each Other. + </h2> + <h3> + From the New York Packet. Friday, February 1, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + The constitutional trial by jury had been violated, and powers assumed + which had not been delegated by the constitution. + </p> + <p> + Executive powers had been usurped. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0049" id="link2H_4_0049"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 49. Method of Guarding Against the Encroachments of Any One + Department of Government by Appealing to the People Through a Convention. + </h2> + <h3> + For the Independent Journal. Saturday, February 2, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0050" id="link2H_4_0050"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 50. Periodical Appeals to the People Considered + </h2> + <h3> + From the New York Packet. Tuesday, February 5, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0051" id="link2H_4_0051"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 51. The Structure of the Government Must Furnish the Proper + Checks and Balances Between the Different Departments. + </h2> + <h3> + For the Independent Journal. Wednesday, February 6, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + There are, moreover, two considerations particularly applicable to the + federal system of America, which place that system in a very interesting + point of view. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0052" id="link2H_4_0052"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 52. The House of Representatives + </h2> + <h3> + From the New York Packet. Friday, February 8, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0053" id="link2H_4_0053"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 53. The Same Subject Continued (The House of + Representatives) + </h2> + <h3> + For the Independent Journal. Saturday, February 9, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0054" id="link2H_4_0054"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 54. The Apportionment of Members Among the States + </h2> + <h3> + From the New York Packet. Tuesday, February 12, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + "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. + </p> + <p> + "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? + </p> + <p> + "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. + </p> + <p> + "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. + </p> + <p> + "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. + </p> + <p> + "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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0055" id="link2H_4_0055"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 55. The Total Number of the House of Representatives + </h2> + <h3> + For the Independent Journal. Wednesday, February 13, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0056" id="link2H_4_0056"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 56. The Same Subject Continued (The Total Number of the + House of Representatives) + </h2> + <h3> + For the Independent Journal. Saturday, February 16, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + (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) + </p> + <p> + (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) + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Burgh's "Political Disquisitions." + </p> + <p> + E1. Two versions of this paragraph appear in different editions. + </p> + <p> + <a name="link2H_4_0057" id="link2H_4_0057"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + 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. + </h2> + <h3> + From the New York Packet. Tuesday, February 19, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0058" id="link2H_4_0058"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 58. Objection That The Number of Members Will Not Be + Augmented as the Progress of Population Demands. + </h2> + <h3> + Considered For the Independent Journal Wednesday, February 20, 1788. + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0059" id="link2H_4_0059"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 59. Concerning the Power of Congress to Regulate the + Election of Members + </h2> + <h3> + From the New York Packet. Friday, February 22, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. 1st clause, 4th section, of the 1st article. + </p> + <p> + <a name="link2H_4_0060" id="link2H_4_0060"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 60. The Same Subject Continued (Concerning the Power of + Congress to Regulate the Election of Members) + </h2> + <h3> + From The Independent Journal. Saturday, February 23, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + PUBLIUS + </p> + <p> + 1. Particularly in the Southern States and in this State. + </p> + <p> + <a name="link2H_4_0061" id="link2H_4_0061"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 61. The Same Subject Continued (Concerning the Power of + Congress to Regulate the Election of Members) + </h2> + <h3> + From the New York Packet. Tuesday, February 26, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0062" id="link2H_4_0062"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 62. The Senate + </h2> + <h3> + For the Independent Journal. Wednesday, February 27, 1788 + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0063" id="link2H_4_0063"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 63. The Senate Continued + </h2> + <h3> + For the Independent Journal. Saturday, March 1, 1788 + </h3> + <p> + MADISON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0064" id="link2H_4_0064"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 64. The Powers of the Senate + </h2> + <h3> + From The Independent Journal. Wednesday, March 5, 1788. + </h3> + <p> + JAY + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + But to this plan, as to most others that have ever appeared, objections + are contrived and urged. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0065" id="link2H_4_0065"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 65. The Powers of the Senate Continued + </h2> + <h3> + From the New York Packet. Friday, March 7, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0066" id="link2H_4_0066"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 66. Objections to the Power of the Senate To Set as a Court + for Impeachments Further Considered. + </h2> + <h3> + From The Independent Journal. Saturday, March 8, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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) + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0067" id="link2H_4_0067"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 67. The Executive Department + </h2> + <h3> + From the New York Packet. Tuesday, March 11, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + THE constitution of the executive department of the proposed government, + claims next our attention. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. See CATO, No. V. + </p> + <p> + 2. Article I, section 3, clause 1. + </p> + <p> + <a name="link2H_4_0068" id="link2H_4_0068"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 68. The Mode of Electing the President + </h2> + <h3> + From The Independent Journal. Wednesday, March 12, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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) + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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: + </p> + <p> + "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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Vide federal farmer. + </p> + <p> + E1. Some editions substitute "desired" for "wished for". + </p> + <p> + <a name="link2H_4_0069" id="link2H_4_0069"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 69. The Real Character of the Executive + </h2> + <h3> + From the New York Packet. Friday, March 14, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + 2. Vide Blackstone's Commentaries, Vol I., p. 257. + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0070" id="link2H_4_0070"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 70. The Executive Department Further Considered + </h2> + <h3> + From The Independent Journal. Saturday, March 15, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + The ingredients which constitute energy in the Executive are, first, + unity; secondly, duration; thirdly, an adequate provision for its support; + fourthly, competent powers. + </p> + <p> + The ingredients which constitute safety in the republican sense are, + first, a due dependence on the people, secondly, a due responsibility. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + (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) + </p> + <p> + (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. + </p> + <p> + 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) + </p> + <p> + "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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + 2. De Lolme. + </p> + <p> + 3. Ten. + </p> + <p> + E1. Two versions of these paragraphs appear in different editions. + </p> + <p> + <a name="link2H_4_0071" id="link2H_4_0071"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 71. The Duration in Office of the Executive + </h2> + <h3> + From the New York Packet. Tuesday, March 18, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0072" id="link2H_4_0072"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 72. The Same Subject Continued, and Re-Eligibility of the + Executive Considered. + </h2> + <h3> + From The Independent Journal. Wednesday, March 19, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0073" id="link2H_4_0073"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 73. The Provision For The Support of the Executive, and the + Veto Power + </h2> + <h3> + From the New York Packet. Friday, March 21, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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) + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Mr. Abraham Yates, a warm opponent of the plan of the convention is of + this number. + </p> + <p> + <a name="link2H_4_0074" id="link2H_4_0074"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 74. The Command of the Military and Naval Forces, and the + Pardoning Power of the Executive. + </h2> + <h3> + From the New York Packet. Tuesday, March 25, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + "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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0075" id="link2H_4_0075"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 75. The Treaty-Making Power of the Executive + </h2> + <h3> + For the Independent Journal. Wednesday, March 26, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0076" id="link2H_4_0076"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 76. The Appointing Power of the Executive + </h2> + <h3> + From the New York Packet. Tuesday, April 1, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + PUBLIUS <a name="link2H_4_0077" id="link2H_4_0077"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 77. The Appointing Power Continued and Other Powers of the + Executive Considered. + </h2> + <h3> + From The Independent Journal. Wednesday, April 2, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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) + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + PUBLIUS + </p> + <p> + E1. These two alternate endings of this sentence appear in different + editions. + </p> + <p> + <a name="link2H_4_0078" id="link2H_4_0078"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 78. The Judiciary Department + </h2> + <h3> + From McLEAN'S Edition, New York. Wednesday, May 28, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + WE PROCEED now to an examination of the judiciary department of the + proposed government. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + 2. Idem, page 181. + </p> + <p> + 3. Vide Protest of the Minority of the Convention of Pennsylvania, + Martin's Speech, etc. + </p> + <p> + <a name="link2H_4_0079" id="link2H_4_0079"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 79. The Judiciary Continued + </h2> + <h3> + From MCLEAN's Edition, New York. Wednesday, May 28, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Vide Constitution of Massachusetts, Chapter 2, Section 1, Article 13. + </p> + <p> + <a name="link2H_4_0080" id="link2H_4_0080"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 80. The Powers of the Judiciary + </h2> + <h3> + From McLEAN's Edition, New York. Wednesday, May 28, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + The judiciary authority of the Union is to extend: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + Fourth. To controversies to which the United States shall be a party. + These constitute the third of those classes. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS <a name="link2H_4_0081" id="link2H_4_0081"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 81. The Judiciary Continued, and the Distribution of the + Judicial Authority. + </h2> + <h3> + From McLEAN's Edition, New York. Wednesday, May 28, 1788. + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + LET US now return to the partition of the judiciary authority between + different courts, and their relations to each other. + </p> + <p> + "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) + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Article 3, Sec. 1. + </p> + <p> + 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. + </p> + <p> + 3. This word is composed of JUS and DICTIO, juris dictio or a speaking and + pronouncing of the law. + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0082" id="link2H_4_0082"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 82. The Judiciary Continued. + </h2> + <h3> + From McLEAN's Edition, New York. Wednesday, May 28, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. No. 31. + </p> + <p> + 2. Sec. 8, Art. 1. + </p> + <p> + <a name="link2H_4_0083" id="link2H_4_0083"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 83. The Judiciary Continued in Relation to Trial by Jury + </h2> + <h3> + From MCLEAN's Edition, New York. Wednesday, May 28, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0084" id="link2H_4_0084"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 84. Certain General and Miscellaneous Objections to the + Constitution Considered and Answered. + </h2> + <h3> + From McLEAN's Edition, New York. Wednesday, May 28, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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." + </p> + <p> + 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) + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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) + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Vide Blackstone's Commentaries, Vol. 1, p. 136. + </p> + <p> + 2. Idem, Vol. 4, p. 438. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + <a name="link2H_4_0085" id="link2H_4_0085"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + FEDERALIST No. 85. Concluding Remarks + </h2> + <h3> + From MCLEAN's Edition, New York. Wednesday, May 28, 1788 + </h3> + <p> + HAMILTON + </p> + <p> + To the People of the State of New York: + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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? + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + 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. + </p> + <p> + PUBLIUS + </p> + <p> + 1. Entitled "An Address to the People of the State of New York." + </p> + <p> + 2. It may rather be said TEN, for though two thirds may set on foot the + measure, three fourths must ratify. + </p> + <p> + 3. Hume's Essays, Vol. I, p. 128: "The Rise of Arts and Sciences." + </p> + + <div>*** END OF THE PROJECT GUTENBERG EBOOK 1404 ***</div> +</body> +</html> |